Movement for International Copyright in Nineteenth Century America

IMPRIMI P O T E S T : GULIELMUS D'ARCY, O . F . M . C O N V .

Minister

Provincialis

N I H I L . OBSTAT: TABLE OF CONTENTS

RONANUS HOFFMAN, O . F . M . C O N V .

Censor Deputatus

PAGE PREFACE

IMPRIMATUR: » PATRICIUS A. O'BOYLE,

Archiepiscoptis

D.D.

.

vii

CHAPTER

Washingtonensis I.

COPYRIGHT BEFORE THE NINETEENTH CENTURY

1

May 12, 1960 II.

START OF THE MOVEMENT IN AMERICA

24

III.

T H E MOVEMENT BEFORE T H E CIVIL W A R

56

IV.

T H E MOVEMENT AFTER THE CIVIL JWAR TO 1880 _

84

V.

FINAL EFFORTS : 1880-1890 _

... 118

PASSAGE OF THE PLATT-SIMMONDS A C T

... 149

Copyright 1960 T H E CATHOLIC UNIVERSITY OF AMERICA PRESS, INC.

VI.

CONCLUSION

... 182

APPENDIX

....

BIBLIOGRAPHY

... 200

WEX

- 211

MURRAY a HEISTER. INC. W A S H I N G T O N , D. C . PRINTED BY TIMES AND NEWS PUBLISHING CO. GETTYSBURG. P A . , U . S . A .

fStaats-u. Univ.-BIblloihek)

- 187

v

PREFACE Among the civilized nations of the West only the United States and Russia lagged (and still lag) in the legal protection given to literary and artistic property through international copyright laws. Before the middle of the nineteenth century all the major European countries had provided, by treaty, statute or proclamation, at least a minimum of protection for the foreign author, composer and dramatist. In many cases, this protection had been extended and codified by adherence to the protocol of the Berne Copyright Convention of 1887, and by a network of bilateral treaties covering particular situations. The United States took no official part in any of the negotiations and signed no instrument designed to provide international legal guarantees for literary property. The Constitution authorizes Congress to grant to authors and inventors exclusive right, for a limited period of time, to their respective writings and discoveries. Congress did pass its first domestic copyright law in 1790, and from time to time revised and extended the provisions of the :ederal statutes relating to copyrights. Yet, the very first law, and every subsequent law, contained the explicit proviso that the protection afforded therein by the Congress applied only to citizens or residents of the United States, and that nothing in the act shot Id in any way be construed to prevent Americans from printing the works of foreign authors. American publishers were thus allowed, indeed urged, to "pirate" foreign works. A complete industry grew up around this concept. A large part, if not the greater part, of the American printing and publishing industry and its related trades, such as binding and typesetting, became geared to a system which depended upon freedom to publish without payment the unprotected works of foreign authors. The United States, of course, enjoyed a unique position. It had ready at hand the mature and brilliant literature of its mother country, a literature written in a common tongue and entering a century of production unsurpassed in greatness. The best works vn

Preface

Prejace

of English authors (and many not so good) were reprinted by American firms which had not bothered with the formalities of permission to publish, purchase manuscripts, payment of royalties, and careful editing of authorized texts. To a lesser degree, the same process was applied to whatever French, German and Spanish works appeared likely to be profitable if pirated. The appropriation of alien literary property appeared to some as simple injustice and to others as a barrier to the creation of a distinctively American literature. For fifty-five years, from 1836 to 1891, men of these opinions carried on an intermittent, longfrustrated struggle to secure the passage of a federal international copyright law. They introduced bill after bill into almost every session of Congress; they formed organizations which sent and induced others to send thousands of petitions to Senate and House; they lobbied within and without Congress for the most simple and fundamental law. The complete story of their struggle has never been told. Treatises upon the law of copyright and accounts of the passage of domestic copyright acts, particularly of the work of Noah Webster, exist in some abundance. Yet, no single work on the history of the movement for international copyright in America has been written to date. This essay is an attempt to sketch the broad outlines of the movement over a period of years, from the first petition presented to Congress by Senator Henry Clay in 1836 to the passage of the first federal act in 1891. Attention has been centered chiefly upon the progress of international copyright in Congress, and the work of a few dedicated men who made the cause of copyright a personal crusade. No attempt has been made to relate in detail the full story of every frustrated attempt to secure international copyright during the half century. Rather, an effort has been made to present a broad view of the movement as a whole with brief glimpses of the multitude of diverse elements which contributed to its formation and progress.

haustively elsewhere, and this study avoids wandering from the historical into the legal domain except where absolutely necessary. The passage of an act in 1891 brings this account to a convenient close, but it should be noted that this jlegislative action by no means marked the end of the movement, for the law was so defective that steps to improve it were taken immediately. Indeed, the movement has not yet ceased, nor is it likely to do so until the United States has adhered to the Berne protocol or passed an equivalent federal statute. ! The author acknowledges his indebtedness to his superior, the Very Reverend William D'Arcy, O-F.M.Conv., for permission to pursue studies in history at the Catholic University of America. He wishes to express his gratitude to the staffs of the Library of Congress, the Copyright Office and the Mullen Library of Catholic University, who were unfailing in their courtesy. Mrs. Adelaide Cahill deserves special acknowledgment for typing the dissertation at great personal inconvenience. To Professor John T. Farrell, under whom this work was completed, the author owes a great debt of gratitude, not merely for the usual cogent criticisms of a majcr professor, but also for his friendship and personal interest. D i e to the careful reading of Sister Marie Carolyn Klinkhammer, O.P., the author escaped many pitfalls, particularly of style and grammar. The helpful suggestions of Dr, Alfons J. Beitzinger,| who also read the work in manuscript, are deeply appreciated. Any deficiencies, literary or historical, are to be attributed to theiauthor. Aubert J. Clark, O.F.M.Conv. St. Bonaventure Friary Washington, D. C. June 1, 1960

Vlll

The approach is chronological, following the introduction of bills and presentation of petitions in each successive Congress, but with occasional treatment of the relevant economic and literary conditions which had a bearing on the fortunes of international copyright. Every legal phase of copyright has been treated ex-

IX

CHAPTER I COPYRIGHT BEFORE T H E NINETEENTH CENTURY

The American colonies shared with England a common heritage of political institutions and traditions. This common inheritance is particularly evident in the field of the law. Most colonial charters contained the brief injunction that the; laws of the colony, whether royal, corporate or proprietary, were to be in accordance with, or at least not contrary to, the laws of England. The common law had full force in all colonies, even though local statutory law might vary somewhat, and Parliament dauntlessly legislated for the New World with complete legal validity, even if not always with de facto success. Thus it happened that, from 1607 until the American Revolution, copyright in colonial America was regulated according to English laws. Even after the dissolution of the bond between the thirteen colonies and their mother country, political institutions and legal practices in the newly-formed United States drew largely upon a lingering British cultural inheritance, stood rooted in the common law; Americans continued to look to England for their ideas, fashions and values. Despite variants, the frame and tradition are the same. Hence, it is convenient for a clear understanding of the history of American copyright law and practice to trace briefly the development and implications of similar law and practice in England. The early history of copyright law and practice in England is exceptionally difficult to trace, for it: is hidden in the murk of royal proclamations, parliamentary acts, court decisions, records of the Stationers' Company, and regulations of the Star Chamber —all inextricably intertwined with censorship and licensing. Lack of precedent was a serious handicap to the development of an orderly corpus of law. By its very nature, copyright relates to multiple, if not mass, production. In the Middle Ages books existed chiefly in single copies, almost like long letters from author to patron ^ The problem of copyright had scarcely arisen for most 1

2

Copyright Before the Nineteenth

Century

of the literary production of the Middle Ages. There were few lay writers and very little original writing. The ubiquitous monastic chronicler had renounced personal property, and even enterprising communities, which might have claimed some corporate right, were more interested in diffusion. Much of the work reproduced centered around the classics and long-dead Fathers and Doctors of the Church, and there was no one to dispute the freedom to copy. Even if someone had claimed an exclusive right to copy, it would have been almost impossible to enforce in the case of hand-written books. A tradition which allowed whoever possessed a manuscript to copy it grew with little opposition. With the coming of the great universities and the new demand for learning in the twelfth to fifteenth centuries, lay writers again appeared and thousands of scribes were employed.1 The increase in production did not cause any change in the practice of copying. The scriveners were paid, but paid for their labor, not for literary creation; and such property rights as existed were considered to exist in the physical material, not the literature. Rabbinical authorities held the opinion that one was allowed to copy a manuscript without the consent of the author, and it was considered a blessing to permit scribes to make copies.2 Christian authorities heartily agreed. One synod went so far as to declare that tbe lending of books to be copied was one of the works of mercy.3 No one seemed to give any thought to the rights of authors, and even they themselves seemed not yet to have become sophisticated to the extent of caring.4

Copyright Before the Nineteenth Century

3

an author who wished to diffuse knowledge, or merely to see his name in print. The printer had to provide press, type, paper, and cost of labor, before he could hope to think of profit. Production exceeded demand in the days of insufficient readers, and struggling printers were likely to go bankrupt. The occupational hazards of publishing were so obvious that steps were taken to protect the one willing to undergo the risks long before the abstract claims of authors received any consideration.5 A vague notion of property right in literary copy was not new to England, but the invention of printing recently introduced there had complicated already confused; theories. These were, at best, ambiguous, often contradictory, and tended to shift as the dominant theory of right to copy happened to be that of the King, of Parliament, or of the Stationers' Company. In its most simple form the modern history of copyright in England is divided into two periods: from the introduction of the first press in 1476 to the first copyright Act in 1710, and from 1710 to today. Within these periods certain events stand out as worthy of attention, since they provided the precedents for the first laws under which American copyright was to be regulated.

1 C. F. Barwick, "The Laws Regulating Printing and Publishing in France," The Library, XVI (1915-17), 69, states that there were in France

Between the introduction of Caxton's press in 1476 and the chartering of the Stationers' Company in 1557 the English printing trade was founded and developed. During this period the Crown asserted its royal prerogatives, as well as patronage, over the destiny of the new industry by a| series of decrees and proclamations. Most significant among these were the early grants of privilege through which the King gave his gracious patronage to favored printers. Though the point is subject to some dispute, the first official printer, Regius Impressor, was probably William Faques who held the office from 1504 to 1508.6 The practice of royal grant derived from the well-established right of the monarch to control new inventions, and the meaning of "invention" was extravagantly extended to cover any new publication.7 A printing

alone in 1470 more than 6,000 scribes occupied solely in transcribing MSS. 2 Philip Wittemberg, The Production and Marketing of Literary Property (New York: J. Messner, Inc., 1937), p. 20. 3 Or, at least, so says James J. Walsh, The Thirteenth Greatest of Centuries (New York: Catholic Summer School Press, 1907), p. 149. *Ibid.f p. 212.

s Marjorie Plant, The English Book Trade (New York: R. R. Bowker Co., 1939), pp. 98-99. a Frederick S. Siebert, Freedom of the Press in England:- 1476-1776 (Urbana, 111.: University of Illinois Press, 1952), p. 32. T Ibid., p. 34.

The advent of printing, however, brought a change in'the attitude of at least one party to literary production—the printer who had to bear great initial expense. He approached publication as a calculated business venture with less of the zeal or idealism of

4

Copyright Before the Nineteenth

Century

grant was a royal guarantee of the exclusive right of the printerfavorite to the copy specified in the grant—a profitable monopoly, in effect. Of course, the King was more interested in the resulting measure of control which he secured over the press, but the effect which interests us is the primitive protection for literary property. A royal grant or monopoly reduced, though it did not perfectly eliminate, the dangers of competition or piracy. Most important is the fact that the grants were given to printers, not authors, and the history of copyright develops through the legal protection given for economic reasons to the printing trade, not to individual authors. Property in literature was not in the writing, but in the right to produce copies. The author owned his manuscript, but if he wished to see it published, he had to bargain with a printer. The earlier printers exercised very conservative judgment on what to print. 8 Till well after 1500 they were most likely to print a selection from former generations which they knew in advance would be profitable, or to await the assurance of noble patronage. Caxtori, for example, did not produce a single original work by a contemporary.9 After 1557 an author could not even own type, and was forced to publish exclusively through a member of the Stationers' Company, and on the member's own terms. With such slight bargaining power authors gradually dwindled to practically professional servants of the printer-publisher, although an occasional very famous man, like Erasmus, might enjoy a degree of control or intimacy with his printer.10 In 1557 the Stationers' Company was chartered by Queen Mary for the purpose of regulating the press.11 She granted to it extra8 H. S. Bennett, English Books and Readers, 1475 to 1557 (Cambridge: University Press, 1952), p. 63. 9 H . B. Lathrop, "The First English Printers and Their Patrons," Transactions of the Bibliographical Society, III (1922), 85. 10 P. S. Allen, "Erasmus' Relations with His Printer," Transactions of the Bibliographical Society, XIII (1913), 297. n Graham Pollard, "The Company of Stationers before 1557," Transactions of the Bibliographical Society, New Series, XVIII (June 1937), 31-35. Despite the title, Pollard includes the charter of 1557.

Copyright Before the Nineteenth Century

5

ordinary powers such as were rarfely acquired by any other guild in order to insure an effective control of the trade, and to hinder the spread of heresy by the furtively printed word. The primary means .employed were the drastic irestriction of printing to members of the Company, the designation of fixed places of printing, and special privileges of monopoly^ The number of printers, each of whom could have two presses, was fixed at twenty-two in 1586, raised to twenty-three in 1637, and] reduced to twenty for the years 1662 to 1695.12 The number of Mkster Printers at the end of the American Revolution was only 124.13 The Crown readily continued the charter powers of this organization, which reached its peak in 1637, when all printing was placed under its control.14 The shades of restrictive planning rapidly fell on what had been a relatively unfettered occupation. Popular protest against these actions was non-existent. The Tudors carried out their policy unchallenged, in virtue of a general indifference to books, the support of the scriveners who were anxious to slow down the new industry, and the cheerful cooperation of the City of London enjoying its primacy and special privileges. The major contributions of the Stationers' Company to the history of copyright are its custom >f registering protected works, and the quasi-common law for the trade which developed out of the decisions of the Company Cour :s. The Stationers' Register was a book of record in which printers entered the titles of works which were their trade property. Only a member of the company could register a book, a practice which made author's copyright out of the question.15 By custom!, members generally respected each other's, rights in registered claims. From a rather unimportant position as a mere record, the entry of a book came, between 1571 and 1776, to assume the form of prima facie evidence of proprietorship of a book and exclusive right to print it, i.e., copyright.16 18 S. H. Steinberg, Five Hundred Years of Printing (Edinburgh: R. & R. Clark Ltd., 1955), p. 138. 13 Ibid., p. 208. "Ibid., p. 81. 16 Siebert; op. cit., p. 134. . " H a r r y Ransome, The First Copyright Statute (Austin, Texas: University of Texas Press, 1956), p. 39.

6

Copyright Before the Nineteenth

Century

While holders of royal patents still enjoyed rights in certain books, unassigned or unprivileged work became the property of the one who first recorded that he had secured the necessary license and published the work.17 Even royal patentees often decided that registration would afford them additional protection.18 The Stationers' Court, in form similar to the usual guild courts, was the ordinary tribunal to which internal disputes among company members were referred.19 A wealth of customary law gradually developed from the struggles adjudicated before the court. A sort of "common law" for the printing trade came into existence without order or organization. For example, the court at various times held that copyright, like other property, could be sold, exchanged, assigned, subdivided, and held in trust. 20 By the time the first colonial settlements appeared in America four basic principles of copyright practice had developed: 1. The vigorous actions of the Crown had made commonplace some central control of literary property which was rarely disputed. 2. The Stationers' Company had functioned well as an administrative agency to assist in control. 3. The registration of copy had become the ordinary method of asserting what was still a rather vague kind of property in books. 4. The Court of the Company had provided a legal basis of inchoate law. The age of the early Stuarts and the Protectorate added little to the progress of copyright. The Stuarts continued the general Tudor policy towards printing. There were, however, a number of grants of exclusive property rights, which serve as examples of copy ownership outside the Stationers' Company. With the typical Stuart eye to re-sale possibilities, most of these privileges were granted only for a limited time.21 The regulations of this period chiefly concern censorship, and were aimed at the massive floods of unlicensed works brought to prominence by the hostility

Copyright Before the Nineteenth Century

to monopoly printing and the social upheaval of the time.22 Governments of whatever political persuasion were more concerned with their relatively ineffective desire to control the political and social effects of printing and publishing, rather than theories of rights for printers or authors.! Provision Number VII of the Star Chamber Decree of 163/f rather pathetically stated that "Letters patent for the sole right to print, and copyright, must be respected."23 They were not. Discord and confusion in the trade were the chief circumstances attendant upon the pre- and postCivil War period in England. Royal privileges, monopolies, decrees of the Star Chamber, regulations of the Stationers' Company and ecclesiastical rules were all called into question. Without waiting for legal clarification, unprivileged printers snatched at the chance to publish anything likely to be profitable. Rights to copy were totally disregarded. John Milton stands out as a notable exception to the general attitude. His Areopagitka of November 24, 1644, was the first reasoned appeal for freedom of :he press in England. Among its obiter dicta is a brief plea for "the just maintaining of each man his several copy, which God forbid should be gainsaid. . . ."24 Although this plea had no immediate consequence, any more than did the rest of the treatise, the remark is important as denoting the time when a few thinking men began dimly to distinguish between censorship of the press ajid just property-rights in copy. The clarification of such an avant-garde concept was still far in the future; it was not till 172$, nearly a century later, that a second edition of the Areopagitica appeared. Till then, copyright and freedom were both beyond the mental horizon of most men. During the Civil War the balance of power had shifted from King to Parliament. Even after the Restoration, much of it re32

K

Siebert, op. cit.r p. 77. ™Ibid„ p. 78. M W. W. Greg, "The Decrees and Ordinances of the Stationers Company, 1576-1602," Transactions of the Bibliographical Society, VIII (1927), 396. 20 Siebert, op. cit., p. 79. ^Ibid., p. 130.

7

An account of a typical secret press and the trouble it could cause may be found in Arthur J. Hawkes, "The Brickley Hall Secret Press," Transactions of the Bibliographical Society, V I I (1926), 137-159. 23 Clyde A. Duniway, The Development of Freedom of the Press in Massachusetts (New Y o r k : Longmans, Green & Co., 1906), p. 12. M The essay was occasioned by an order of Parliament imposing very strict licensing laws; it is devoted chiefly to an appeal for liberty to print without governmental regulation.

8

Copyright Before the Nineteenth

Century

mained there, and Parliament appointed a "Surveyor of Writing" and attempted to clarify the maze of customs within the printing trade. Parliament attempted not to abolish the controls, but to change the source from which the control emanated.25 The Stationers' Company, somewhat discredited, was retained as the instrument now of Parliamentary control, but its old monopolistic privileges and extensive police rights were never revived.26 Neither Commons nor Lords paid much attention to copyright, though secondary clauses in the Acts of Printing for 1662, 1664, and 1665 required entry in the Register of the Stationers' Company—a requirement which seems to have been quite ineffective.27 Affairs seemed to go on much as before, minus a few royal monopolies. Despite constant efforts the printers were unable to effect any major changes in law or practice. When the Act of 1694 was allowed to lapse, the literary trade fell into general anarchy.28 During the entire period so far discussed public dispute about copyright was carried on chiefly, if not exclusively, by legitimate and piratical printers and booksellers.29 There were chronic piracies by needy printers who owned no copy, as well as^ by greedy printers who appropriated the copy of lesser men. Authors were not conspicuous in the courts or Parliament, with a very few notable exceptions, like Milton. At considerable hazard authors bargained independently with the printer of their choice, or sought royal letters of patent, and left the work of protecting the profitable right to copy to the ones who profited. The first English copyright act effected a complete reversal of this situation. It deserves special attention as the legal basis for all subsequent English and American law, and marks the establishment of the modern relationship between author and printer-publisher. An April 4, 1710, Parliament passed an "Act for the Encourage28

William M. Clyde, "Parliament and the Press," Transactions of Bibliographical Society, XIV (1923), 52. Many then complained that Parliamentary control was but the Star Chamber under a new name. 20 Siebert, op. cit., p. 233. 21 Ransome, op. cit., p. 85. a Ibid., p. 89. 29 Pollard, op. cit., p. 109.

Copyright Before the Nineteenth Century

9

ment of Learning." 80 It placed the origin of literary property in the act of composition, and designated the author as the primary possessor of right in copy not transferred to another. The act distinguished between "old" books, i.e., those already created and possessed by someone, and "new" books, i.e., those not yet in existence, yet to be written. Anyone already enjoying rights to an "old" book, whether author, printer, or bookseller, was to have the sole right to print such books for twenj:y-one years. The author of any book composed but not yet published, or any book hereafter composed, was to have the sole right to publish such a book for fourteen years, and the right was automatically renewed for a second fourteen-year period if the author was alive at the end of the first. Any unauthorized person who dared print any book without the written consent of Its author or literary proprietor was subject to penalty of confiscation and a fine of one penny per sheet. The Act of Anne provided that no; one was to be liable to these penalties unless title to the work had been entered upon the Stationers' Register. Since nine cophs had to be deposited upon registration, this clause remained relatively inoperative unless the fact of registration was needed for a court claim or similar legal purposes. The nine copies were intended for the royal and university libraries, and are the ancestral prototype of our present-day deposit copies. The Act was not a great success m practice.31 It did not give protection from pirated works imported from abroad, or books in foreign languages. The Dutch and Irish pirates were notable offenders in this field, and an Irish piracy sold as much as fourteen shillings below London list prices.32 Besides such practical weaknesses, there were theoretical objections. The implications underlying the foundation of the Act of Anne, i.e., whether or not the act destroyed the perpetual copyright to which an author was supposed to be entitled by natural law, were attacked then and 80 Ransome, op. cit., pp. 109 ff. This was the famous "Act of Anne." Ransome's work deals in great detail with every aspect of the law. 31 A. S. Collins, "Some Aspects of Copyright from 1700 to 1780," Transactions of the Bibliographical Society, VII (1926), 69. 32 Pollard, op. cit., p. 112.

10

Copyright Before the Nineteenth

Century

later. Despite this, the Act marked a watershed in copyright history. Its importance lies in the designation of the author as the source of right to copy, and in the legal decisions which it evoked over the next century and a half. With the Act of Anne the modern period of copyright begins. Between 1710 and 1776 the English government made very few additions to the law of copyright. There were particular grants, such as the Act of 1775 which gave perpetual copyright to the universities for work bequeathed to them.33 There were occasional regulations, such as the Act of 1734 which extended copyright to prints, and engravings.34 But colonial America developed its earliest copyright practice under the Act of Anne and local regulation. As in so many matters, direct control of the press and publication was exercised by the colonial Governors, whose power, while absolute, was generally lightly and infrequently administered.35 It is worth noting that the Declaration of Independence contains in its list of complaints no hint of any interference with the liberty of printers, authors and publishers. Printer Benjamin Franklin would no doubt have seen to the insertion of some relevant remark if there had been any need for it, but never was freedom of the press in America seriously violated on intervention of King or Parliament.36 Although the "mystery" of printing came early to America with the introduction of the first press to Massachusetts in 1639,37 it was slow to spread and develop. Twenty-six years elapsed before a second press was established, and only three presses operated during the seventeenth century.38 In the first half of the eighteenth century, six other colonies acquired presses, and by the time of the Revolution every colony except Maine and Vermont had at 33

15 George I I I , c. 53. 8 George II, c. 13. ^ H e l l m u t Lehman-Haupt, The Book in America (New Y o r k : R. R. Bowker, 1951), p. 45. 80 Lawrence C. Wroth, The American Bookshelf, 1775 (Philadelphia, The University of Pennsylvania Press, 1934), p. 8. 37 Lawrence C. Wroth, The Colonial Printer (Portland, Me.: The Southwork-Authoensen Press, 1938), p. 14. ™lbid., p. 59.

Copyright Before the Nineteenth Century

11

least one printing establishment. Between 1675 and 1700 Boston established primacy in the American publishing world.38 The number of printers operating in eighteenth-century America cannot be determined with accuracy. During the last decade of that period approximately fifty-five printers operated in Boston, some only briefly.40 During the same period forty-one booksellers, some of whom were also printers, left record of their existence.41 Philadelphia became an important literary center near the end of the century. An examination of the records of the clerk of the district court of Pennsylvania shows that at least thirty-five different printers produced a variety of works in Philadelphia between. 1790 and 1794.42 Printer-publishers, of course, operated in the other states, and books of all sorts were published in rapidly increasing numbers. The important conclusion, for present purposes, is that by the beginning of the nineteenth century one necessary factor for a movement toward international copyright was present in America. That this factor was not present beforje the nineteenth century is evident from an examination of the nature of the work of the American press. There was striking similarity in all early production. The major sources of income for t i e colonial presses were government work and ephemeral pieces, such as blank forms and notices. The first work of every pre-Revolutionary press but two was a government document.43 Without indispensable government patronage the press could not have existed. The rest of the limited output centered around advertisements, tickets, forms, certificates, and similar single sheet matter—all very unlikely to be the subject of copyright. Only a very limited output of even such simple matter could be expected from the hand presses common till the nineteenth century. Two men, working eight hours a day, could print approximately

M

38 John T. Winterich, Early American Books and Printing (Boston: Houghton, Mifflin Co., 1935), p. 33. *°Ro31o G. Silver, "The Boston Book Trade" in Essays Honoring Lazurence C. Wroth (Portland, Me.: The Authoensen Press, 1951), p. 297. 41 Ibid., p. 298. "Ibid., p. 103. w Wroth, The Colonial Printer, p. 59.

12

Copyright Before the Nineteenth

Copyright Before the Nineteenth Century

Century

1,000 sheets per day, so that it would take two hundreds days to produce an edition of 10,000 copies of a normal sized book, i.e., an octavo volume of 320 pages.44 With the exception of a very few, printers did not exceed an output of six books per year in the sixteenth century, and the average for the whole industry in England during the seventeenth century was 100 per year.46 There was actually an average decline in the eighteenth century when the number fell to 93 per year, and the Register of the Stationers' Company showed that between 1714 and 1774 only 50 books per year were entered.46 Accurate figures for the output of the American press before the nineteenth century are not available. Evans computes the total output from 1639 to 1799 at 36,000 pieces of works preserved. Much of this was ephemeral, and certainly more was printed than has been preserved. Lawrence Wroth has calculated that where one title of a colonial publication has been preserved, 4.7 pieces were actually printed.47 Reasonable approximations can be deduced from representative sale catalogues and printers' work books. Some 58 catalogues from the eighteenth century survive. The earliest known catalogue issued by an American bookseller was that of T. Cox of Boston, who published a twenty-nine page booklet in 1724.48 The second was Benjamin Franklin's catalogue of 1744, and others followed fairly profusely. The most extensive was Caritat's catalogue of 1799.49 This contains 2,700 titles. The most interesting was John West's which has the largest selection of American titles in print in 1797.50 From these catalogues it can be deduced that the vast majority of works offered to the American public in the eighteenth century were foreign imports, mostly from London. The selection is quite wide, ranging through law, history, religion, biography, fiction, " Plant, op, cit., p. 89. "Ibid., pp. 91-92. "Ibid., p. 92. "Wroth, The Colonial Printer, pp. 184-186. "Ibid., pp. 32, 275. 19 LeRoy Kimball, "An Account of Hocquet Caritat," The Colophon, Part 18, no paging. 50 Wroth, op. cit., p. 36.

13

science, poetry, and education. Apparently the majority of books available in London were also available in America. Throughout the whole of the seventeenth and eighteenth centuries American libraries were constantly increased by shipments from England,51 and some very interesting lists of English and foreign books in the colonies have been made.52 j The important fact is the paucity of American works. The early American press was largely utilitarian. A list from Franklin & Hall's work book for 1763 shows only six pieces that could be regarded as literary productions.53 From 1638 to 1670 the Cambridge Press published only 157 pieces of any kind of work.54 Only one catalogue, that of Isaiah Thomas of Boston, issued in 1791, is devoted exclusively to American productions. It was issued with the proviso that it was for the friends of literature who wished to "encourage the Art of Printing in America."55 It contains 204 titles. A somewhat later list could boast 408 American titles,56 and one of 1796 had 395 entries.57 The largest offer of the whole century was 650.6S These pre-Revolutionary specimens of Americana are not to be despised, for assortment of literary forms in rather resr. ectable style, but in all the listings there does not emerge the title of a single memorable work of imaginative literature.59 A formidable proportion of the work of the early American press was newspaper publishing. From lrj90 to 1810 some 2,120 newspapers conveyed to local inhabitants ntost of what they knew of affairs of the day. Many papers ceased at birth, or failed to run 61

Thomas Goddard Wright, Literary Culture in Early New England (New Haven: Yale University Press, 1920), p. 32. "Ibid., pp. 224-237. 63 Wroth, The Colonial Printer, pp. 218-222. M Wright, op. cit., p. 82. 06 Wroth, op. cit., p. 50. "Ibid., p. 55. "Ibid:, p. 57. »-JW
14

Copyright Before the Nineteenth

Century

Copyright Before the Nineteenth Century

more than a year or so, but 450 of them lasted over 10 years.60 With the primitive methods of the hand press, their publication must have consumed disproportionately large amounts of the printers' time and paper supply.61 The late growth of American activity in the various literary fields can be shown by the following table :63 First First First First First First

Book in English America Drama in English America Folio (except law) Novel (disputed) New Testament complete Bible

; 1

1640 1714 1726 1789 1777 1782

Fiction work, so important in copyright history, was extremely meagre. After the first American novel appeared in 1789, the public was offered a total of thirty-six new titles of fiction in the course of the rest of the century.63 Ten women and thirteen men, as far as is now known, then comprised the fiction writers of America. They wrote for a reading population of less than two million, who were only gradually and slowly coming to purchase light reading and works for amusement. It is generally supposed that puritanism hampered literary and artistic production, and there is probably some truth in this charge. While it is certainly false exaggeration to say that colonial America was an intellectual vacuum, it is true that most people had little incentive to lead a life of the spirit, reading books or attending plays. In far too many places the humanism of England had wasted away, and most colonies and new states had to wait a century before they had an intellectual life worthy of the name. It would be absurd to expect widely-separated frontier provinces struggling with nature for a

living to produce worthy authors or readers devoted to belleslettres.** It is no mere coincidence that copyright agitation occurs only after a reading market sufficient to permit authors to live on the proceeds of their work developed in the nineteenth century. Other aspects of the nature of literary activity before the nineteenth century also help to explain the scarcity of copyright problems. Many writers wished to reach their fellow Englishmen as much as their colonial neighbors, particularly the Puritan authors who were the most numerous in the early! days. Important books were sent to England for publication.65 Indeed, this was necessary during most of the seventeenth century, for tools of the trade, as well as time, were sadly lacking in America. Paper was always scarce, and not manufactured in the colonies till 1690, while ink was first produced in some quantity only in 1691. Both were relatively easy to manufacture, but remained of poor quality for some time. Presses were not manufactured1 in America till 1769,66 and printers had to wait till 1781 before even a crude type-foundry was in operation.67 These factors explain why most of the more important books were published in England. This is true not only of early Puritan works, but also of latei publications of more general interest. Charles Thompson's booklet, Enquiring into the Alienation of the Indians, was written in! Philadelphia in 1758, published in London, paid for by the Pennsylvania Assembly, and sold widely in that colony by Benjamin Franklin. 68 Much of the seventeenth- and eighteenth-century work was religious in nature. This was particularly the 'situation in New England, but also to a large extent true of the rest of America.69 Quite a bit of the rest of the published matter was political, such as the Rev. James Sterling's Zeal Against the Enemies of our Country M

001 tt

Lehman-Haupt, op. cit., p. 37. Wroth, op. cit., p. 169.

03 The dates used in this table are based upon facts given in George Parker Winship, The Cambridge Press, 1638-16^2 (Philadelphia: The University of Pennsylvania Press, 1945) and Lawrence C. Wroth, The American Bookshelf 1775. ^ L y l e H . Wright, "Eighteenth Century American Fiction," in Essays Honoring Lawrence C. Wroth, pp. 457-473.

15

Samuel E. Morison, "The Puritan Tradition," in Edward N. Saveth,

Understanding the American Past (Boston: Little, Brown & Co., 1954), p. 74. 03 Wroth, The Colonial Printer, p. 83. ^Winterich, op. cit, p. 132. "Ibid., p. 130. 63 Wroth, op. cit., p. 127. 69 The proportion can be deduced from the typical fact that, of 133 works published in Boston v between 1682 and 1689, 95 were theological in nature.

16

Copyright Before the Nineteenth

Century

Pathetically Recommended.70 The authors, and to some extent the printers, of these works were more interested in wide dissemination than in the protection of rights in copy. It would have been ludicrous to restrict the right to multiply works of propaganda. And, it must be said, often some of the works published were of such a nature that no one would care to pirate them. For a long time leisure and even competent literacy were restricted to a relatively few educated people. Naturally, considering the circumstances, American literature was at a low ebb. Of course, there is no intention here to imply that the intellectual life or cultural level of any community is strictly proportioned to its printing and publishing statistics. The literary desert of early America had its oases watered by English imports, as well as by utilitarian letters of local origin.71 The leaders of the colonial period, if they provided no urbane school of belles-lettres, did leave an enormous volume of writings on a wide variety of themes and an incredible number of sermons, tracts and pamphlets. The libraries of men like William Byrd and Cotton Mather, which provided reading matter for many more readers than their owners, bear testimony to the cultural level of colonial America. Still, the struggle to wrest a living from the New World, and then to win freedom from England, and then to make a nation, monopolized the interest and energy of most Americans. Political and religious opinion directed some attention to freedom of the press,72 but only incidentally did the question of copyright intrude before the nineteenth century. m 71

Wroth, op. cit., p. 32.

Louis B. Wright, The Cultural Life of the American Y o r k : Harper Brothers, 1957), p. 144. ra Dumway, op. cit., passim.

Colonies

A P P E N D I X TO CHAPTER O N E SOME ETHICAL ASPECTS OF THE COPYRIGHT ISSUE

Since so much of the copyright controversy centered around the concept of "justice" for authors and their j'moral rights" to their copy, it might be well to summarize some of the leading Catholic and non-Catholic opinions on this aspect cjf the issue. An author has an obvious economic interest in his worlj:, for it can be a source of great material benefit to him through publication, sale, adaptation, and the like. He has also an interest of a less tangible, moral nature, since his work reveals and reflects his personality and through it he speaks to the public. A clear distinction between these two sets of interest is not always possible to make, especially in cases of "piracy" whereby an author may be damaged economically and perhaps morally compromised. By piracy the integrity, paternity and commercial value of a work are destroyed, and the author suffers injustice. In searching for an expression of nineteenth-century nonCatholic opinion on the relationship between business and ethics or moral philosophy, as it was often called, one is immediately struck by the dearth of literature. 1 Indeed, such opinion was tardy in appearance and is not too common evert today.2 The prevalent creed of the last century represented society as an aggregate of individuals, whose conception of justice was equally individualistic and, joined to a tendency toward .exploitation.3 The Reverend Richard Newton of All Souls Church in New York City stated: "It is generally thought impossible or Utopian to apply Christian

(New1

William J. McDonald, "Towards a Philosophy of Economics," in John

K. Ryan, editor, Philosophical Studies in Honor of the Very Reverend Ignatius Smith, O.P. (Westminster, Md.: The Newman Press, 1952), p. 223. 2 G: Bromley Oxnam, "The Christian Challenge," in John C. Bennett et at., Christian Values and Economic Life (New Y o r k : Harpers, 1954), pp. 14, 24. 3 J; S; Mackensie, "The Relation between Ethics and Economics," International Journal of Ethics, I I I (1893), 301.

17

Appendix to Chapter One

Appendix to Chapter One

ethical standards to business."4 The Christian Church had not taught morality to the businessmen of that century till the later decades, which were characterized as the "pioneer" periods of vague awakenings and hasty, generalized discussion.5 Generally, during the nineteenth century organized Protestantism supported the moral, political and economic status quo. They took for granted the sanctity of private property, the virtue of competitive enterprise and the legitimacy of gain. Moreover, the most articulate and influential sections of the churches were intimately associated with the mercantile wealth and financial conservatism of the Atlantic seaboard.6 American ethical teaching for business practice was dominated by "clerical laissez-faire" whose principles were imbedded in senior courses of moral philosophy, often taught by the minister-president of a religiously orientated college.

copyright. Property was generally considered an absolute, natural right in the nineteenth century, and educated men imbibed a solid respect for property rights from professors and textbooks. Noah Porter at Yale taught that property was one of the essential and universal conditions of human welfare, and hence one of the inalienable and natural rights.8 But he i l s o held that what constitutes and defines property must to a l,arge extent be determined by law, and that the general consent of £he community expressed in statute or tradition must be accepted jas determining what was a private possession and to whom it belonged. President Francis Wayland of Brown iUniversity, author of the most popular textbook in the field, held equally that society had control over the amount and nature of intellectual creation, and that if society lays down laws on intellectual matters, members of that society are bound by such laws.9 Aside from this limitation, Wayland taught that man has the right to publish when and where he pleases, and that genius was given not for the benefit of the possessor, but for the benefit of others.10 Although these men did not mention Copyright specifically, and it is doubtful if they ever had it in mind, a great variety of positions—absolute right of the author, absolute right of the state, and freedom to piracy—can all be deduced from their principles with judicious selection. Their teaching must have afforded little guidance for men interested in the complicated ethics of international.copyright. More specific conclusions were needed. Unfortunately, very few American moral philosophers treated the question of author's rights or copyright ex professo. One text stated that society and governments recognized property value in ideas, which are products of an immaterial character, but noted that rights to this type of property are limited for a term of years. 11 Speaking specifically of domestic copyright, the author

18

The type of college education given to the men of the past did not contribute greatly to an acute awareness of economic ethics. George Herbert Palmer, eminent philosopher and mentor of many distinguished teachers, has described life at Harvard in midcentury as "not very valuable."7 The students, subjected to a heavy, prescribed curriculum, were exposed only to half a course in economics and one in moral philosophy, which was extremely limited in method and content. Palmer and later students have pointed but that this was the situation till the end of the century, and that Harvard was certainly no worse than other colleges. The schools reflected the general complacency, particularly in the post Civil War period, and the morality of the age was a success morality. No wonder then that appeals for "justice" to authors subject to commercial exploitation by publishers of the Atlantic seaboard were minimized and misunderstood. There were, however, certain elements of Protestant ethical teaching which could be applied to the question of international * Charles Howard Hopkins, The Rise of the Social Gospel in American Protestantism, 1S65-1905 (New Haven: Yale University Press, 1940), p. 33. 6 Ibid., p. 53. a Henry F. May, Protestant Churches and Industrial America (New York: Harper & Brothers, 1949), pp. 6, 14. 'George Herbert Palmer, "Introduction," in George P. Adams (ed.), Contemporary American Philosophy (New York: Macmillan, 1930), p. 21.

19

s Noah Porter, The Elements 0} Moral Science (New York: Charles Scribner's Sons, 1885), p. 410 ff. "Francis Wayland, The Elements of Moral Science (London: The Religious Tract Society, n.d. [preface dated 1835]), p. 192. 10 Ibid., pp. 210, 275. - 'u'Johh' M. Gregory, A New Political Economy (New York: American Book Co., 1882), p. 141.

Appendix to Chapter One

Appendix to Chapter One

stated that when it has expired the work passes into the common stock and belongs to all mankind.12 The clearest statement came from Professor James Hyslop of Columbia, who taught that intellectual products are personal property, a natural right to which was not conferred by legislation.13 He added that every man is entitled to the benefits of his own labor, a situation necessary in his mind for social order. While Hyslop's principles might sound definitive, their effect is spoiled when he adds that such rights are modified by paramount rights of the community, and thus all monopolies are wrong." Again the texts did not consider international copyright, and a variety of conclusions may be drawn from the principles laid down for domestic copyright.

right of reproduction, then anyone! who reproduces breaks the tacitly imposed conditions and commits an aggression. In return for .the money: paid, he takes a benefit far greater than that which was intended to be given for the money.16

20

One other factor remains. The influence of European teaching on copyright cannot be neglected, for educated Americans knew and relied somewhat upon the philosophers of England and Germany. Some of these had very definite views on copyright, and two of them, Spencer and Hegel, may well serve as examples. Herbert Spencer specifically treated the question and taught that a manuscript did not become public property once it had been published. For Spencer . . . the.things used by the author, e.g., his thoughts, conelusions, sentiments, technical skill, are applied to create a production of mental labor which may be regarded as property in a fuller sense than may a product of bodily labor; that which constitutes its value is exclusively created by the writer. 15

:

The conclusion drawn from this was obvious: If, having sold to them copies of his book, either himself of through his agent, on the tacit understanding that for so much money he gives, along with the printed paper, the right of reading and lending to read, but not the

Nothing could be more definite. Hegel had not been quite so sweeping,! but he, too, had pronounced views on copyright. He raised the question whether the right to use a thing involved the right to reproduce it, and further distinguished between reproduction for private or individual use and reproduction as a source :of further wealth. The latter is a specific source of wealth and a definite and separate piece of property, which the producer has the right to reserve to himself. Hence, Hegel equated violation of copyright to ordinary theft.17 He based this contention upon his belief that the right to reproduce was in itself a thing of value, a property separate from the matter to be reproduced. His American followers, such as the St. Louis Hegelians, were not quite so definite. They did favor benevolent monopolies which served the social whole, and used copyright as an example thereof, but they seemed to leave too much to the determination of th$ state.18 The influence of Spencer and Hegel on American thought was undeniably great, and may have contributed toward the attitude of copyright enthusiasts such as Putnam (a Yale alumnus) and men who were exposed to these ideas or to professors who elaborated upon European philosophical j principles. Yet there seems to have been no direct connection between specifically nonCatholic ethical teaching and the approach to "justice" in any proposed international copyright law. Their methodology lacked the very systematic approach to moral problems which distinguished the scholastic theologians. ™Ibid., p. 105. 17

13

Ibid., p. 142. 53 James H. Hyslop, The Elements of Ethics (New York: Charles Scribner's Sons, 1895), p. 432. 14 Ibid., pp. 438-439. IB Herbert Spencer, Principles of Ethics (New York: D. Appleton & Co., 1S91), Part IV, 108.

21

Hugh A. Reyburn, The Ethical Theory of Hegel (Oxford: The Clarendon Press, 1921), p. 137. 13 Francis B. Harmon, The Social Philosophy of the St. Louis Hegelians (New Y o r k : n.p., 1943), p. 35. The St. Louis Hegelians were a small private group under the leadership of Henry Brokmeyer, William Harris and Denton Snider which flourished in the 1850's and 1860's. They published the Journal of Speculative Philosophy.

22

Appendix to Chapter One

Appendix to Chapter Ope

For centuries Catholic moralists have been accustomed to approach problems through the systematic investigation of either the Ten Commandments in order, or the moral virtues in turn. The result in each case has heen a thorough treatment of the Seventh Commandment and the virtue of Justice. One topic important in both cases is the question of "dominion," i.e., who owns an object? Among those having dominion in certain cases are authors, whom everyone acknowledges to enjoy some type of ownership over the creations of their intellect. Hence, all Catholic moral theologians have at least a brief treatment of this problem, usually entitled "On the Dominion of Authors." All the theologians agree and have always agreed that authors enjoy a natural right to complete dominion over their unpublished manuscripts. Such a right is possessed even by religious with the vow of poverty. All hold equally that once the civil law has by statute determined the specific application of the natural right in regard to the publication of manuscripts and the protection to be afforded printed works, then the civil law controls the situation and binds in conscience.

tion only in virtue of this positive law of j the state, and in the absence of such a law there is no claim to exclusive rights.20 Only one author holds that a writer cannot prevent reprinting of his works in another nation, especially one some distance away, and he gives as his example the republication of some Spanish work in Latin America.21 Genicot, who states that after the first edition, to which the author has sole right;, a work may be reprinted freely, especially abroad, qualifies his opinion by noting that modern advances in communication and international commerce tend to make this attitude less and less tenable.22 In the light of the well-nigh unanimous opinion of moral theologians it seems best to follow the mbre common teaching and to hold that an author always enjoys dominion over his published works, regardless of the non-existence of a civil statute to that effect. Hence, throughout this work the terms "piracy" and "pirate" are used as they were commonly used in the nineteenth century by the advocates of an international copyright law, in spite of objections on the part of those engaged in such practices, who claimed that such designation was undeserved and improper.

It is controverted, however, whether an author has, in the absence of civil statute, a right to prevent another person from reprinting, without his permission, a work already published. The more common opinion was, and is, that authors always retain dominion, though it would obviously be better if the civil authorities would spell out the details by some positive law.10 A few theologians, notably Vermeersch and Bucceroni (and Connell in the United States today), hold that authors can claim protec-

*° Arthur Vermeersch, Epitome Juris Canonici (Mechliniae: Dessain, 1946), II, 439; Gennaro Bucceroni, Institutiones Theologiae Moralis (Romae: E x Typographia Pont, in Inst. Pii IX, 1914), I, 878; Francis Connell, Outlines of Moral Theology (Milwaukee: Bruce Publishing Co., 1953), p. 110. ; ^ T h o m a s lorio, Theologia Moralis (Neapoli: |M. D'Auria, 1954), II, 564-565. ^ E d o u a r d Genicot, Institutiones Theologiae Moralis (Bruxellis: Albert Duvit, 1922), I, 477.

w

Augustin Lehmkuhl, Theologia Moralis (Friburgi Brisgoviae: Sumptibus Herder, 1887), I, 904; Alphonse Bonal, Institutiones Theologiae (Tolosae: Apud Douladouse, 1882), V I , 25-27; Aloysio Sabetti, Compendium Thologiae Moralis (Ratisbonae: Fr. Pustet & Co., 1892), 363-364; Victor Cathrein, Philosophia Moralis (Friburgi Brisgoviae: Sumptibus Herder, 1900), No. 460; Henri Merkelbach, Summa Theologiae Moralis (Parisiis: Typis Desclee, deBrouwer et S o c , 1931-1933), II, 192; Henricus Noldin, Summa Theologiae Moralis (Oeniponte: Sumptibus et Typis Feliciani Rauch, 1941), II, 364; Dominic Prummer, Manuals Theologiae : Moralis (Barcelona: Herder, 1945), II, 8; Edward Regatillo and Marcelino Zalba, Theologiae Moralis Summa ( M a t r i t i : Biblioteca de Autores Christianos, 1953), I I , 512.

23

Start of the. Movement in America CHAPTER II

25

!• States. A duty of ten per cent, instead of five, which is now. charged upon the article, would have a tendency to aid the business internally.6

START OF THE MOVEMENT IN AMERICA

The Constitution of the United States authorizes Congress 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 discoveries.1 On May 31, 1790, in accordance with this power, Congress passed the first national copyright law.2 The law gave to authors who were citizens or residents, their heirs or assigns, a fourteen-year copyright in books, maps and charts, with renewal for an additional fourteen years if the author was living at the expiration of the first term. The law of 1790 remained in force until a general revision of patent and copyright law took place in 1831. Meanwhile, with few exceptions,3 Congress paid little attention to the problem. On April 29, 1802, a supplementary act had extended the benefits of the general law to designing, engraving and etching of prints,4 and the circuit courts of the United States were granted jurisdiction over cases relating to the law of patents and copyrights.5 Indirectly, and incidentally, Congress did consider the printed book under another aspect, as a factor among the nation's imports. Although not specifically mentioned, books were included among all the "other goods" subject to tariff laws. Congress ignored the opinion of Alexander Hamilton, expressed in his "Report on Manufactures," where he stated: The great number of presses disseminated throughout the Union seem to afford an assurance that there is no need of being indebted to foreign countries for the printing of the books which are used in the United 1 !

U. S. Const.. Art. 1, Sect. 8.

1 U . S . Stat. 124 (1790). A few private acts were passed for the benefit of individual authors. ' 2 U . S . Stat. 171 (1802). ! 3 U . S. Stat. 481 (1819).

3

24

Printed books remained subject to the ordinary five per cent duty. In the midst of the battles over tariffs, whic|h distinguished the first half of the nineteenth century, the rates for printed books were mainly' revenue items and not particularly controversial. Raised along with the others, the duty on books hoyered between eight per cent and 15 per cent till the Civil War. Generally, the book trade, like any other "infant industry," favored a fairly high tariff. Although the principle of protection was occasionally used in the argument over copyright, the perennial tariff controversies played but a .negligible part in the struggle. On February 3, 1831, Congress approved a general revision of the several acts respecting copyright, and this law remained in force till July 8, 1870.7 Passed largely through the efforts of Noah Webster,8 the Act of 1831 extended the term of copyright to twenty-eight years, with the privilege of renewal for fourteen years to the author, his widow, or his children. But, like the law of 1790, the act granted copyright only to citizens or residents of the United States. The act was interpreted as denying implicitly the theory of perpetual, natural copyright. In view of the long controversy over the legal'status of literary property this interpretation and the English legal precedents upon which it was based are of some importance. While it is not necessary to discuss fully, the various conflicting philosophical and legal theories,0 or to repeat the summary of the e John C. Hamilton (ed.), The Works of Alexander Hamilton (New York: Charles S. Francis & Co., 1850), III, 379. "4Stat. 436 (1831). . 8 Harry R. Warfel, Noah Webster, Schoolmaster to America (New York: The Macmillan Co., 1936), pp. 54-60, 184-185, 393. 'Literature treating this is cited in Stephen P. Ladas, The International Protection of Literary and Artistic Property .(New York: The Macmillan Co., 1938), I, 2 ff. See also George Haven Putnam, "Literary Property," in George H. Putnam, The Question of Copyright (New York: G. P. Putnam's Sons, 1904), pp. 324-350, where a lengthy essay is devoted to expounding the theories in a manner sympathetic to international copyright.

Start of the Movement in America

Start of the Movement in America

evolution of English copyright law, it is necessary for an understanding of the arguments for and against international copyright to note the resulting legal position. The Statute of Anne (1710), the foundation of English and American copyright law, gave rise to lengthy and involved legal battles. For years, both before and after the passage of the Act of Anne, theorists held generally that authors possessed a natural right to their works. The statutory law, according to this viewpoint, was supposed merely to enforce a common law right by imposing a penalty on violations which would otherwise go unpunished. This intriguing theory was demolished for the English-speaking world by a momentous decision of the House of Lords in 1744. In the case of Donaldson v. Beckett the Lords held that, instead of giving additional sanction to rights already held, the statute substituted a new and lesser right to the exclusion of any older and greater one.10

was granted only to citizens or residents of the United States. The text of the law made this grant explicit, stating that "there was no prohibition to the printing, publication, importation or sale of books, charts, dramatic or musical compositions, engravings, photographs, written, composed or madq by anyone who is not a citizen or resident of the United States.;,13 The law made it impossible for authors living abroad to secure protection for their works in the United States. In the absence of such protection, American publishers could and did repriint the works of foreign authors without payment. From this fact stemmed conditions of the utmost importance for the literary history of America.

26

The Supreme Court of the United States, in the case of Wheaton v. Peters, followed the decision of the House of Lords, and the law of the United States has ever since been settled to the same effect as that prevailing in England.11 The Supreme Court has repeatedly said that Congress by its copyright laws did not sanction an old right, but created a new one.12 The effect of this interpretation was that literary property lost the character of copy right and became the subject of copy privilege. In spite of juridical acceptance of the theory denying perpetual right, most advocates of international copyright in the nineteenth century were strong advocates of an inherent and indefectible "property right" under natural law. This position was very useful because of the high value placed on "'property" in that age. The philosophical position of the advocates of international copyright ran directly counter to the one provision of the Acts of 1790 and 1831 which they considered the root of all evil. Copyright 10

4 Burr. 2408. a 8 Pet. 591 (1834). IS Ladas, op. cit., I, 3, footnote 8, lists a number of cases to this effect. The conclusion does not seem to have been challenged by anyone except Mr. Justice Holmes, who had his own weird concept of author's rights as expressed in White-Smith Music Publishing Co, v. Apollo Co., 209 U. S. Stat. 1-18 (1908).

27

The position of the United States was almost unique at the time. The major civilized nations of the western world early made provision of international protection of authors' rights. Denmark, acting in 1828, was the first.14 Prussia followed in 1836 and England in 1837.30 In 1852 France granted protection to all foreign works.16 Up to this time Belgium and the United States had been the centers of literary piracy, but in 1854 Belgium came to terms.17 Only Russia, the Ottoman Empire and the United States were outside the fold at mid-century. The reason the United States failed tc keep pace with the European nations in the matter of international copyright lies in a set of circumstances peculiar to this country. Here was a nation with an ever-increasing reading public and a book-manufacturing industry expanding at an even more rapid rate. Lacking a developed literature of its own, the nation had at hand the magnificent literature of its mother country conveniently written in a language common to both lands. With foreign books available for the taking in the absence of any restrictive law, what could have been more natural than that adroit American publishers should cheerfully •~4. Stat. 436 (1831), Sect. 8. Ladas, op. cit., I, 22. "Ibid. in Ibid. . " T h e situation in Belgium was similar to that of the United States, for Belgium had available the common French language. Part of the story of Belgian piracy is told in Herman Dopp, l,a Contrefagon des livres frangais en Belgiqite (Louvain: Uystpruyst, 1932), 250 p. u

28-

Start of the Movement

in

America

Start of the Movement

appropriate as much as they desired of the abundant literature of England, which a happy combination of circumstances delivered into their hands gratis? T h e advantages were so great and so obvious-; the ingredients were so readily available and the preparation so simple that mouths watered at the prospect of free literary delights. A system of book production based upon free access to foreign works sprang up and became firmly established as the century progressed. Conditions prevailing in the American book trade offer an explanation of the origins of the movement for international copyright. I n the first half of the nineteenth, century the United States changed in territorial extent from a narrow coastal settlement to a broad expanse spread over the vast area of a continent; it increased in population from about three million t o almost thirtythree million, and in economic stature from an agricultural t o a progressively industrialized nation. T h e expansion of the • book trade kept pace with the physical and economic pace of the nation. It increased in extent as "ambitious and aggressive young men with printing presses and small supplies of type" followed' the westward movement of the frontier. 18 B y mid-century only seven states'lacked a press. M o r e important,' the number of large-scale publishers had increased steadily. Perhaps the best way to convey the idea of the intensive development of the book trade in this period is by statistical table: 1 9

PERSONS AND F I R M S I N T H E BOOK TRADE

Boston 1798 1852

41 147

New_ York 56 345

Philadelphia 88 198

Baltimore, 19= 32

T h e introduction of improved methods of bookmaking occurred concomitantly with physical expansion. T h e r e have been two great ^Hellmut Lehman-Haupt, The Book in America (New York: R. R. Bowker Co., 1951), p. 65. 18 Ibid., pp. 119 and 121. Figures refer to those who engaged in the trade during the course of the respective century, not to the number engaged at any one given time.

in America

29

periods in the development of typography as a mechanical art— the last half of the fifteenth century and the first half of the nineteenth. 20 While the major American contributions to the mechanical aspects of printing occurred after the Civil W a r , the industry was able to take advantage!of improvements developed elsewhere, improvements which changed printing from a fine art to an industry. George Clymer started to improve the old flat-bed press in 1807, though his Columbian Iron Press was not in general use till the 1820's. 21 T h e H o e iron j>ress and light Washington Press were in production from 1823 ito 1880. A steam press, invented by Isaac Adams in 1830, captured the American market until after the Civil W a r , and about 90 per cent of the better book and magazine printing was turned out on Adams presses. 22 T h e perfection of the cylinder press around 1847 completed the early mechanical revolution. Stereotyping was introduced from Europe in 1813, and became common in the 1820's. 23 It was superseded after 1840 by electrotyping. These marvels were of limited advantage until complemented by commensurate improvements in typesetting. T h e first successful machine was patented in 1853. D u r i n g the first half of the. century, American printers worked with foundry type, but it did not seem to hamper t h e m greatly. All the related arts simultaneously felt the impact, of the machine on handicraft. T h e first patent for a composing machine was entered in 1822 ; 24 machine-made paper came to America in 1820 ; 25 t h e process of steel engraving,:introduced in 1810 for bank notes, was soon adapted for book illustration. 26 O n e has only to look at the list of patents for inventions relating to the printing trades to realize that the foregoing items barely touch upon the innumerable improvements. But enough has been said t o indicate 20

S. H. Steinberg, Five Hundred Years of Printing (Edinburgh, R & R. Clark, Ltd., 1955), pp. 25, 33, 37. a Lehman-Haupt, op. cit, p. 74. ™lbid., p. 77. w Steinberg, op. cit., p. 192. M Lehman-Haupt, op. cit., p. 85. *Ibid., p. 87. "Ibid., p. 93.

30

Start of the Movement in America

Start of the Movement in America

the beginning of an era during which American publishing passed from its colonial childhood through the period of industrial adolescence. The effect of these improvements was to make publication easier and quicker, and in conjunction with the development of improved communication and transportation they ushered in the day of large-scale production, lower prices and wider distribution. By this time bookmaking had become a relatively thriving industry, which experienced constant expansion during the first half of the century. Publishing first became specialized in this period, and large firms devoted to the publication of general literature were established. About 1820, New York replaced Philadelphia and Boston as the nation's foremost publishing center. The most renowned publishing firms were founded in the early decades of this century; the field began to be a bit crowded. At the end of the eighteenth century Noah Webster had six publishers of his speller scattered over the nation, and no one interfered with another.27 That happy situation had disappeared by the 1820's, never to return.

it was the vox populi which had the ear of the publishers (and politicians!). The first "popular" books brought to the shores of America were, apart from religious material, highly utilitarian in character, more in the nature of tools for the conquest of an uninhabited area than belles-lettres. The preponderance o|f theological works among the early settlers has already been mentioned, and the necessity for didactic books on agriculture, medicine, politics, surveying and the like governed the choice of works for settlers in the new land. The level of literacy in seventeenth-century America was relatively high, and thousands of books are known to have been imported. It is even true that the lighter works of romance, poetry and fiction were not unknown, for colonial booksellers stocked Arcadia and The London Jilt.zs

A most important factor in the expansion of the publishing trade was the increasing popular demand for books, particularly the fad for novels. In the first half of the century, American literary taste underwent a remarkable change. From newspapers and religious works the public gradually turned to an interest in belles-lettres. The works of the English novelists had not been unknown in the latter part of the eighteenth century, but the novel was then looked upon with considerable disfavor, and the demand for it was limited. It was the tremendous vogue of the novels of Walter Scott which evoked the systematic exploitation of English novels on a large scale. The explanation for this phenomenon is rooted in the changing American literary taste. The history of popular literature has much to tell the historian of copyright. Some knowledge of popular literary taste is essential as background for the history of copyright, since popular desires had such an impact on the book trade, and vice versa. Though the vox jwtitiae might have greater claim, 27

Earl L. Bradsher, Matthew Press, 1912), pp. 83 and 127.

Carey

(New Y o r k : Columbia University

31

The general trend, illustrated in a small way by the presence in America from the very first of all types of printed matter, continued and expanded in the eighteenth century. Through this century the reading public traveled a long road, passing through revolution and rationalism. The change of ideas was attended by practical inventions which made the physical process of reading easier. Thousands of readers acquired a taste for reading. Most important was the growth of a large feninine reading public, and the gradual introduction of a new form of literature for the new readers—the novel. Democracy gave an extra impetus, since it was argued that intellectual activities should! be open to all and that a republican form of government demanded a literate and enlightened citizenry. It was well known that a book on the table signified a cultural and moral (the two were almost synonymous for a long time) house. Although the movement for international copyright "was concerned with all forms of printed matter, the struggle largely centered around the novels of foreign authors. Hence, it seems most useful to trace briefly the development of the novel in American literary taste, while at the same time noting that similar generalities can be made for poetry, drama and more sober works. ^ James D. Hart, The Popular Press, 1950), p. 16.

Book

(New Y o r k : Oxford University

32

Start of the Movement in America

The novel had no place in seventeenth-century America any more than in seventeenth-century England. The prevailing literary styles in colonial America were essentially those being read in England, allowing for a slight time lag. The closest that the early settler came to a novel "type" were the popular romances to which publishers lured respectable readers by a thin veneer of sanctimonious rationalizations. None of these ever approached the stature of a best-seller, and were generally hard put to survive amid an atmosphere of moral disapproval. Early American "best-sellers" in the seventeenth century were entirely of a religious nature, except for one "captivity" piece.29 The eighteenth century was quite different. The change came almost overnight after Samuel Richardson issued his Pamela in 1740. The first of the principal fashions in fiction, the sentimental novel, had arrived. These were middle-class tales for middle-class people with whom ordinary readers could identify themselves. Only rudimentary taste was needed to appreciate what style the author had, and scant knowledge sufficed to cope with any plot situation. The even weaker novel of sensibility, brought to perfection by Lawrence Sterne, followed the sentimental novel. Such stories appealed chiefly to the ladies and to both sexes in the upper classes, for few others had time to cultivate their sensibilities. Distinguished by insufferably sweet maidens, who pined away when violated (and they often were), the tales were read by thousands. The two types of novel tended to merge and reached roughly the same market. The third and final form of eighteenth-century fiction was the Gothic novel, a general term covering any romance of terror. No skimpy works were these Gothic novels, but three solid volumes. Traces of the form exist as far back as Horace Walpole's Castle of Otranto 1764, but the fashion blossomed in the 1790's. The Gothic novel featured ruined abbeys, castles, dungeons, haunted 20

Frank Luther Mott, Golden Multitudes (New York: The Macmillan Co., 1947), p. 303. This work is a history of best-sellers in the United States. A "captivity piece" was a highly dramatic account ol imprisonment, or at least adventure, among the savage Indians.

Start of the Movement in America

33

chambers and groaning ghosts. Heroines wept and fainted their way through all the traps that black-hearted villainy could devise, ultimately managing to live happily eve|r after in the very best of circles. The attraction lay in the opportunity for escape into the thrills of vicarious adventure. Middle-class America delighted in the chance to journey through the Gothic novel to old mysterious Europe. Each of the three styles enjoyed a pejriod of popularity roughly in the order cited. Among the elite, |more sophisticated forms gradually replaced them, but all three j delighted publishers long after their vogues declined in Englandj They perpetuated a sort of cycle of popularity wherein all three forms were continually re-issued for an ever lower class of readers, so that well into the nineteenth century it paid a publisher: to pirate an old Gothic novel. Thus, Charlotte, a Tale of Truth was reprinted for over a century in 200 editions, ultimately to be issued by local country printers for the chapbook trade.30 Most important, the Gothic novel prepared the way for Walter Scott. His exciting action and picturesque color were a fitting sequel. The popularity of Sir Walter Scott in the United States was nothing less than phenomenal. The average person fell captive to his heroic action, exciting pageantry, and smooth, glamorous romanticism. The historical content had great appeal to those who wished to learn a bit while being entertained. Scott's insertion of philosophical passages appealed to the jmore serious reader. He had everything. His novels were the first immediate best sellers in America after Tom Paine's Common Sensed The same thing can be said of his poetry.32 To the American publisher Scott represented unlimited profits, and this business-minded class hastened to take advantage of the public craze. The overwhelming degree of public interest in Scott and the novel in general is difficult to appreciate, especially when one considers the vast amount of trash which circulated under the name 30 Ibid., p. 39. A chapbook was any small book carried around for sale by peddlers called "chapmen;" • 31 Mott, op. cit., p. 67. 32 Hart, op, cit, p. 69.

34

Start of the Movement in America

"novel." The form was immensely popular as a propaganda medium. Thinly disguised tracts, cast in the form of fiction, promoted phrenology, free love, socialism, feminism, pacifism, abolitionism, temperance, and every other possible crusade. Most of the successful authors were women, and publishers soon learned to welcome any militant female clutching a bulky manuscript. It was a safe piece of merchandise, if "merchandise whose cultural effect was to distort the growth of native fiction for half a century." 33 Many people on both sides of the Atlantic wrote a novel, and almost all were pirated by someone. Of course, the piracy did not take place without violent protest. The "corrupting influence" of the novel was the subject of innumerable sermons, pamphlets and speeches by older, sober and more religious people. There was no doubt in their minds that the novel degraded both intellect and morals. They inveighed, in vain, against the novel as a cause of female depravity, a loss of time which could have been put to better use, and a source of false ideas of life. As late as 1803 the Harvard Commencement Address was directed against the dangers of fiction.34 No matter! The novel suited the tastes of the times, and people continued to read them. And publishers were only too eager to supply as much for the demand as they could. The efforts of American publishers to capitalize on the popularity of novels, so many of which were the work of foreign authors, resulted in a wave of piracy. Literary piracy was founded upon the fact that the lack of any international copyright enabled every ' publisher who so desired to appropriate popular works without the formality of payment to non-citizens or non-resident authors. The fact that no publisher who reprinted the work of foreign authors had any assurance that rival firms would not bring out competing editions at lower prices resulted in ruthless internecine struggle. There were really two separate struggles, one between the authors and publishers in general, and a second among the publishers themselves. In a state of constant warfare, priority of 35

Vernon L. Parrington, Main Currents in American Thought (New York: Harcourt, Brace & Co, 1927), II, 182. 34 Hart, op. cit., p. 54.

Start of the Movement in America

35

publication was the only advantage a publisher could have over his rivals. Speed became of primary importance. To obtain the earliest copy of the best and latest foreign work, to print huge editions in cheap form, and to profit by quick sales before a competing edition could be published became the accepted! practice. Very few survived without developing an efficient technique. The first step in "The Game," as it \yas called, was to secure a copy of a desirable work. Every literary success in London was quickly reported on the other side of the! ocean. Prior publication in England gave the cachet of approval.; Leading publishers employed agents in England and Scotland whose function was to secure advance sheets, galley proofs, or at least early reviewers' copies—anything before the general sale copy. It was not unknown for an American firm to plant workmen in a foreign office to steal galley proofs as they came from : the press.35 Sometimes foreign publishers were willing to enter j into arrangements with their American colleagues for the exclusive sale of advance sheets, a practice which brought them extra profi: at no expense. Mathew Carey, a leading pirate of Philadelphia, had such a relation with Longmans & Co. of London.36 Later, American publishers would negotiate directly with an established author with a view to purchase of manuscripts for simultaneous publication in the United j States. While this was obviously better than stealing, publishers!could not afford to pay much for what was only a short (if profitable) head start. Carey's offer of £100 for advance sheets of Nicholas Nickelby was refused, and he gave up further negotiations simply because he felt he could not afford to pay more for a few hours' advantage. After Harper's had paid £650 for five volumes of Macaulay, the pirates picked it up at once, and the firm of E. H. Butler & Co. of Philadelphia stole the market from them with an edition of 60,000 at 15 cents a volume.37 A perfect object lesson for the more honest! * Hart, op. cit., p. 74. w Bradsher, op. cit., p. 79. Several letters from Carey to his London colleague are quoted. " Mott, op. cit, p. 95.

36

Start of the Movement in America

Start of the Movement\in America

Some idea of representative prices paid for advance manuscripts of established authors may be gained from the following table: 38

such; tricks for long, and by the 1830's it had pulled ahead to become the leading book mart on the eastern seaboard—a position based not on culture, but on the triumph of the economics of exploitation. Each firm, of course, continued to compete with other local firms for intra-city trade and distribution to its own hinterland. |

Publisher Carey Carey Harpers Carey Harpers

Author Bulwer Dickens Macaulay Dickens Dickens

Price in Pounds 125 150-225 130 per vol. 60 1250

Date 1836 1840 1849 1839 1860

After the voyage of the sheets or manuscript oyer the Atlantic, the next step was the actual process of publishing. When the ship was due or sighted, all the compositors were rounded up and the precious text rushed from the waterside to the plant or printing offices. Carey used nine offices in 1822, when he printed The Fortunes of Nigel.39 The copy would be divided up among as many as thirty or forty type-setters chosen for their speed. The whole establishment worked day and night till the book was set, printed and bound. Phenomenal speed records were achieved. The Fortunes of Nigel went to the compositors on Thursday and was on sale Saturday.40 Harper issued the three-volume Peveril of the Peak in a mere twenty-one hours !41 Distribution and sale were the final steps. A new novel could be placed on sale in the publishing city within a matter of hours, but special efforts were needed to distribute. Other cities suffered great disadvantages compared to New York, to which port most ships from England came, and which was fast growing as America's leading city. It took efforts of extraordinary ingeniousness to overcome New York's lead, such as the time Carey & Hart hired all the seats on the Philadelphia mail stage, in order to send their copies of Riensi to the New York market before Harper's could issue their edition.42 But New York was not to be forestalled by 38

The figures for Carey are taken from Bradsher, op. cit., p.' 93, and those for Harpers from Mott, op. cit., pp. 95 ff. 80 Bradsher, op. cit., p. 87. 40 Mott, op. cit., p. 68. "Ibid:- • * 2 J. C. Derby, Fijty Years Among Authors, Books and Publishers (New York: Carleton, 1884), p. 551.

Z7

The ultimate hazard in "The Game" was piracy of American publishers by American pirates. As sc)on as one firm had issued its own reprint of a foreign work, a rival firm, securing its copy at a local bookstore if need be, issued a! competing edition. Pirates constantly complained that they enjoyed but a slim lead of days or even hours. In 1830 at least ten establishments in Philadelphia, and almost as many in New York, engaged in printing works of Scott. Waverly novels, issued from their plants, soon sold for as low as 20 cents a volume.*3 The process of successive pirating was repeated on an ever-descending scale. First editions gave way to equally good competing editions; cheaper ones soon followed; then, if the work was a success, one or the other publisher might issue a de luxe edition for the carriage t'ade. Sooner or later the best-sellers found their way into paperback, dime novel and chapbook form. Lastly, the periodical publishers issued them m serials, local country printers put them in their newspapers, and enterprising railroads saw to it that their timetables had a chapter or two of some favorite tale. The ventures of the periodical press into piracy deserve mention. When Willis & T. O. Porter were planning The Corsair, they thought first of calling it The Pirate and openly acknowledging their purpose.44 The first volume of the Penny Magazine contained reprints from English almanacs, the North American Review, Irving, Franklin and Bryant. The publisher, Charles Knight, stated that the cheapness of his magazine, and some sixty-three similar publications, was accomplished by pilfering from every source that came their way.45 The peak in this variation in piracy 43

Mott, op. cit., p. 69. ** Clarence Gohdes, American Literature in Nineteenth Century England (New York: Columbia University Press, 1944), p. 48. *Ibid., p. 51.

38

Start of the Movement in America

Start of the Movement in America

came in 1855, when Street & Smith began to publish. For a longer period than any other firm, they concentrated on fiction series, cheap libraries and the ten cent magazine.46 It was common practice to fill up space in a periodical with items stolen from here and there. Harpers were dependent for their contents [of Harper's Monthly] chiefly upon material which had seen selected, that is to say, appropriated, from British periodicals. With a judicious selection of the best magazine material that was available in Great Britain, Harper's had secured for itself a very satisfactory popular success.47 Pirating newspapers had few format or composition problems, and did not have to worry about binding. They could beat all but the very fastest printers, and found it easy to capture a wide audience, especially among the out-of-town subscribers to whom they were sent at cheap mail rate.48 Ultimately, popular novels were issued in sheets retailing at as low as one cent apiece.4* Estimates of the fantastic number of volumes of pirated works issued from American presses vary enormously, and accurate figures are impossible to find. The very nature of the process hinders calculation. Rough comparative figures for the years just past the middle of the century are: 50

1853 1854 1855

New Books or Editions

English Reprints

879 765 1,092

298 277 250

We may take with some reservation the statement that "the black flag floated over about half of the American best-sellers from 1800 ** Lehman-Haupt, op. cit., p. 237. *•"• George Haven Putnam, George Palmer Putman: a Memoir (New York: G. P. Putnam's Sons, 1912), p. 171. ^Hart, op. cit., p. 78. *" Mott, op. cit., p. 82. °°Gohdes, op. cil., p. 42, f. 66.

39

to I860," 51 but certainly the proportion was high enough to arouse protest and indignation. After 1814 Scott led all in popularity^ and an estimated 500,000 volumes of his works were printed.52 No sooner had Scott ceased, when Dickens began his long career. At the same time, their contemporaries, equally great in fame, werfe in lively demand. There was hardly a year from 1814 on which did not produce at least one highly popular English novel to be jsnatched up by the American pirates. Although English novels were the chief target of the piratical publishers, the game was not limited to them alone. In 1822 Matthew Carey had an agent at Gilbraltar charged with sending to Philadelphia a single copy of any new Spanish work of interest. Carey printed these in America for sale in South America. Thus, he issued a two-volume Spanish dictionary in October 1822.53 There were a number of German productions from American presses, the most popular being the Sorrows of Werther.si In the 1840's translations of Dumas, Hugo, Sue, French authors began to enjoy a certain amount of popularity, prompted by their reputation for moral !axity.55 "Naughty" works were read outside the home, e.g., by California diggings. Unfortunately, not all the foreign works reprinted were on a par with Dickens, Dumas or Goethe. The growing and seemingly perpetual popularity of the novel led publishers to cast about for any similar book likely to appeal to popular taste. An expanding market for trashy fiction among an ever-widening circle of literate, but unsophisticated and undiscriminating, lower classes resulted in the output of much worthless and obscure literature.56 It matters u

Mott, op. cit, p. 92. William P. Trent (ed.), The Cambridge History of American Literature (Cambridge, England: The University Press, 1917-21), IV, 541. ^Bradsher, op. cii., p. 68. 01 Ibid., p. 80. M Hart, op. cit., p. 101. w Francis Lieber, "On literary Property," North American Review, LII (1841), 399. Leiber, an ardent advocate of copyright, frequently used this argument against piracy. 52

Start of the Movement in America

Start of the Movement in America

little how one solves the problem of priority between popular book and public interest. The question is debated elsewhere. ;What matters for the story of international copyright is that the situation existed. The American book trade, all too quickly, became geared to a system based almost entirely upon the lack of international copyright. Not only publishers, but also all those who depended upon the trade—binders, typesetters, papermakers, type founders, and booksellers—benefited from the situation. The reading public also benefited, at least to the extent that books of foreign authors were made available at extremely low prices. Tradesmen and readers constituted a considerable group of people with vested interests who had an obvious advantage in perpetuating the system. The publishers were reluctant to forego an assured profit, which they knew.they would make in spite of the competition.. They were supported by their craftsmen who depended for a livelihood on the publishers' success. The average person, enjoying a source of cheap, but excellent, literature, was not eager to support a movement to extend legal protection to foreign authors. Few really understood what it was all about anyway. Many could not withstand, the open appeal typical of an early advertisement for a pirated work:

Although the movement for international copyright could scarcely be said to have begun before 1836, there were occasional appeals for copyright protection for foreign authors before that date. The honor of being the first to plead for! international copyright is disputed among several claimants. Bader claims that Tom Paine advocated it as early at 1782 ;5S Goodiiich states that John Neall first advocated it in The Yankee in 1J828.60 The Knickerbocker points out that its crusading editor, Willis G. Clark, first singled out the flagrant injustice of the lack of adequate copyright law.61 Regardless of who can claim the empty honor of first mentioning the subject, the first one to do anything about it was an Englishman, Frederick Saunders.

40

Whosoever would purchase the English edition must give Three Guineas for it, which excessive price has engaged James Rivington's proposing to the public a complete edition of the work . . . in two volumes . . ; manufactured in this country . . . [for the] trifling price viz. one dollar and a half.57 In 1843 Dickens's Christmas Carol sold for six cents in the United States and equivalently for $2.50 in England.58 In addition to the economic attractions, one must remember that there were few Americans in the nineteenth century eager to apply the Golden Rule to the British. In the face of such circumstances the early movement for international copyright was to make scant headway. But there were some efforts. m

Lehman-Haupt, op. cit., p. 53.

83

Hart, op. cit., p. 103.

41

Frederick Saunders was the son of;the senior partner of the London firm of Saunders & Otley. With a view to forestalling piracy of the firm's works by issuing a simultaneous edition in America, Saunders came to the United States in 1836 and settled in New York. His father hoped that the existence of a local branch would deter American pirates from their usual practices. He was sadly mistaken. American publi >hers lost no time in pirating the works of Saunders & Otley, ruining the New York branch financially. The importance of the venture lies not in the business defeat, but in the work that Saunders di i to help launch the movement for international copyright. In fact, he claimed in all modesty later that he was the sole pleader with Congress during 1837-38.62 After attempting a disastrous commercial duel with Harper's, Saunders.gave up publishing. Details of!his later life are somewhat obscure, but at one time or other he ran a bookshop, which was a meeting place for those interested in international copyright. At one time, he served as city editor of the New York Evening Post m Arno Bader, "Frederick Saunders and the Early History of the International Copyright Movement in America," Library Quarterly, V I I I (1938), 26. 80 S . G. Goodrich, Recollections of a Lifetime (New York and Auburn: Miller, Orton & Mulligan, 1856), I I , 357. *• The Knickerbocker, X V (1840), 529 and X I X (1842), 384. M Frederick Saunders, "A Reminiscence in Copyright History," Publishers Weekly, X X X I I I (1888), 988. The facts in this account are taken chiefly from Saunders' own reminiscences and Bader, op. cit.

42

Start of the Movement in America

Start of the Movement in America

under Bryant, and used his position to plead the cause in the newspapers. He also helped in the construction and presentation of petitions to Congress, and it was in this way that the problem of copyright was first brought to the attention of the federal government. A petition was prepared in London by Saunders & Otley, entrusted by them to the hands of Captain Wilkes of the United States Exploring Expedition, who delivered it into the hands of Senator Henry Clay. This was the now-famous British Authors' Petition to Congress. Signed by fifty-six of the foremost English writers, it reads like a "Who's Who" of nineteenth-century literature. Notable among the signers are Edward Bulwer-Lytton, Thomas Carlyle, Benjamin Disraeli, Maria Edgeworth, Harriet Martineau, Robert Southey, and Thomas Moore.83 The authors stated their case briefly and succinctly:

referred to a special committee, and the Senate's President appointed Senators Clay, Preston, Buchanan, Webster and Ewing to the committee.65 On February 13 Churchill Cambreling, of New York presented the same petition to the:House 0f Representatives without comment. It was referred to the Committee on the Judiciary, but, after ordering it to be printed, no further action was taken by the House. 68 *The Senate Committee, however, submitted both a report and a bill to amend the Copyright Act of 1831.6T The Report was highly favorable to the idea of international copyright. The Committee based its stand partly upon the sacred concept of property:

That your petitioners have long been exposed to injury in their reputations and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America.64 The authors, in the course of the petition, repeatedly use the term "property," perhaps under the influence of the natural right theories, or perhaps hoping thereby to appeal to the business instincts of Congress. They pointed out, also, how they suffered injury to their reputations because of mutilations, changes and alterations at the whim of American publications. (It is true that special endings suitable for this side of the Atlantic were occasionally added or substituted, and those who used a foreign work to fill out space were not overly-concerned about chopping off a bit here and there.) The authors, therefore, humbly begged Congress to redress these wrongs by extending copyright protection to foreign authors. Senator Henry Clay presented this document to the Senate on February 2, 1837. On his motion, it was agreed that it should be 63

U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 134. "Ibid., Section 1.

43

That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence.68 Accepting this, the Committee drew the logical conclusion: It being established that literary property is entitled to protection ought to be afforded \ wherever the property is situated. . . . We would be shocked if the law tolerated the least invasion of the rights of property in the case of merchandise, whilst those which [justly belong to the works of authors are exposed to iviolation without the possibility of their invoking the aid of the laws.69 Nationality of an author should not affect his property any more than it did the bale of merchandise belonging to a foreign exporter. The Committee presented a bill which they thought would remedy the situation. * U. S. Congress, Journal of the Senate; 24th Cong., 2d Sess., 1936, p. 192.

88 U. S. Congress, Journal of the House of Representatives, 24th Cong., 2d Sess., 1836, p. 400. w U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 179. *.lbid., Sec. 2. *Ibid., Sec. 2.

44

Start of the Movement in America

Start of the Movement |m America

The bill proposed to extend the copyright Act of 1831 to work composed by authors of Great Britain, Ireland and France. It limited protection to works not yet published, as the. Committee put it, "buried in the minds of genius." They had no intention of trying to redress past wrongs. The proposed law laid down the conditions that protected works must be printed and published in the United States. This is the well-known "manufacturing clause," with which all subsequent American copyright laws have been tainted. The very first international copyright bill presented; to Congress made the protection of foreign authors dependent.upon manufacture in the United States. It was a futile attempt:.to reconcile the rights of authors and the vested interests of the book industry. The impossibility of doing this to the satisfaction of both parties was, and is, the chief obstacle to the movement.:

right. His career as the distinguished hfead of the firm which bears his name is well known. Starting with the first organization in 1837, while he was still a junior employee of the New York firm of Wiley & Long, until his death in 11872 Putnam continued a series of vigorous, if futile, struggles on behalf of copyright. He was the Secretary and chief workhorse for every subsequent Copyright Association. An indomitable personality, with an established position in the trade and contemporary society, he, more than any single man, kept the crusade alive through repeated failures.7 The opposition, which Putnam and his circle had to face for decades, were not unworthy opponents, The vast majority of ordinary people, of course, were indifferent' not understanding and not caring. This, in itself, was a serious handicap. At most, they knew somehow or other that international copyright would perhaps affect the, price of books, or help England, or maybe help American writers—or something! Francis Lieber, speaking of the phenomenal sales of his encyclopedia, pointed out that the era from the 1830's on was an age when the common man was struggling for hegemony, and he was : sure that his greatest weapDn was .education.72 Hence, he was opposed to anything which night in any way limit his freedom to. seize an education, including that garnered by readingpirated books.

The report and the proposed bill stimulated widespread discussion.. The proponents of the bill were chiefly a small group of writers, foreign publishers, intellectuals, and men interested in international justice. Some advocated the law in the interests of native American literature; some had suffered personally, irom piracy or the system under which it operated; some pleaded the cause of an abstract right on philosophical grounds.: They expressed themselves vigorously, and were fortunate to be engaged in a metier which lent itself to propaganda. Out of this attempt to secure passage of the Clay Bill came the first of many organizations to. promote the cause of international copyright. In 1837 George Palmer. Putnam organized the American International Copyright Association.70 The activities of the first committee were limited to appeals to the press and petitions to Congress. Bryant, Halleck', Andrew Matthews, Fay and Cooper were the most outstanding members. They obtained no results from their efforts, and the organization lapsed around 1839. It would be revived over and over again whenever any prospect of success for international copyright appeared likely. The Association itself was not half as important as its founder. George Palmer Putnam is remembered as an almost tireless worker in the early stages of the movement for international cbpy70

George Haven Putnam, op. cit., pp. 33 and 160 ff.

45

Opponents of international copyright included publishers, booksellers, printers, binders, paper-makers, and all those dependent upon "the game." There were also a few more altruistic opponents of international copyright who honestly thought that such a law would not be in the best interests of the United States. The anticopyright interests confined themselves largely to petitioning Congress on behalf of the book industry. Whether they were forced to this by lack of other means, or whether shrewd businessmen knew where ;the real decisions would be, victory in the only forum which counted was theirs. Congress listened to the opponents of copyright in spite of all publicity or propaganda on behalf of the author's rights. n The bulk of Putnam's efforts occurred later in the century, so specific treatment.of his work is postponed till later in the present study. 78 Frank Freidel, Francis Lieber,. Nineteenth Century Liberal (Baton Rouge;-La.: Louisiana State University Press, 1947), p. 78.

46

Start of the Movement in America

Start of the Movement in \ America

Since the arguments for and against an international copyright law remained generally the same throughout the century, it might be well here to summarize the major contentions of both sides, particularly noting the points brought forward in connection with the Clay Bill. The advocates of copyright based their stand on two fundamental themes, i.e., justice to individual authors and national interest. The opponents relied upon the popularity of the cheap book, denial of the "property" theory, hatred of "monopolies," and the danger to the economic welfare of the nation if the book industry were disturbed. To most of those who favored copyright protection the moral issue was the fundamental point. Having shown (to their satisfaction) that copyright was demanded on the grounds of justice, they regarded all other arguments as superfluous and misleading. Nothing more could be said; copyright must be granted at once. Their attitude reminds one of the abolitionist approach to slavery, and at times the struggle for copyright took on the appearance and tone of a crusade. The "justice" expected from a copyright law flowed from their philosophical concept of property. The juristic theory of literary property is of relatively recent origin. As we have seen, rights in literary property were first recognized in connection with the printer, who had the strongest interest. When the period of privileges and monopolies came to an end, a basis was sought for authors' rights independently of royal grants or publishers' privileges.

possession or owned, but is in vacuo, so to speak. . . . It is a prohibition of conduct remote from the persons or tangibles of the party having the right. It may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong, lit is a right which could not be recognized or endureci for more than a limited time, and therefore, I may remark in passing, it is one which hardly can be conceived except as a product of statute, as the authorities now agree/ 3 Today the idea seems to have been abandoned except in France, England and the United States.74 In these nations the fact that copyright used really to be a privilege granted by the king led to a reaction, and the right later granted to I authors was considered a property, out of hostility to privileges or monopolies. The general philosophical trend of the nineteenth century helped to perpetuate this attitude, and most of the American proponents of international copyright adhered to, or; at least alluded to, the theory. The argument was advanced in the Petition of the Citizens of Boston presented to the Senate on April 24, 1838, by Senator William Rives. Seventy-eight prominent citizens, headed by Edward Everett, signed. The memorial contained a clear statement of the property theory: The plea of the British authors appears to us to be founded in the plainest principles of justice. Our law already recognizes the right of native citizens to hold and transfer literary property as fully las it recognizes the right of transferring any other species of property. We cannot well conceive why a foreign author should not have the same liberty and right to consign or transfer literary property to his agents in this country that a foreign merchant has to transfer and consign his merchandise.™

The law did not ignore claims based upon the principle of securing to industry its fruits and to capital its profits, but the place of the creative author was subject to some doubt. The property theory, in its most simple form, is based upon the idea of creation through personal industry. But there are certain obvious difficulties in adapting legal theories meant for material property to the idea of copyright. Mr. Justice Holmes stated some of them: The notion of property starts, I suppose, from confirmed possession of a tangible object and consists in the right to exclude others from interference with the more or less free doing with it as one wills. But in copyright property has reached a more abstract expression. The right to exclude is not directed to an object in

47

Secondary arguments followed from the primary moral conten73

White-Smith Music Publishing Co. v. Apollo Co., 209 U. S: 1 (1908), 18. * Stephan P. Ladas, The International Protection of Literary and Artistic Property (New Y o r k : The Macmillan Co., 1938), I, 7. 75 U. S. Congress, Senate, Public Documents printed by order of the Senate, 25th Cong., 2d Sess., 1837, Vol. V, Doc. No. 398. 7

Start of the Movement in America

Start of the Movement in America

tion. A proper law would secure to foreign authors just reward for their labor. This they certainly were not receiving in full measure, if they were paid at all. It is worth noting that sincere proponents of copyright, like George Palmer Putnam, adhered to the logical consequences of their theory in business practice:

Writing as a profession would never be attractive to native talent as long as the average author had to compete with the great masters of England whose works were appropriated without cost. No publisher would bother with unrecognized writers, who had to be paid, if he: had at his disposal the certamly great literature of the world. Even men of great talent who managed to gain a reputation in spite of competition, as well as alreac.y famous American names who; sought a publisher, hardly had a fair chance in the uneven struggle. The experience of a few authors will illustrate the difficulties. Until the time of Washington Irving and James Fenimore Cooper, no American author made a living solely from the profession of writer. Longfellow was the:first to do so by writing poetry.79 As late as 1842, Lowell received but $10 per poem.80 In 1853. Hawthorne's royalties from Mosses from an Old Manse totaled $144.09.81 Later, an. established author like Mark Twain might receive 50 per cent of the profits,; as he did for Roughin' It. Then again, he might not, for his publisher refused to grant the same amount for The Adventures of Huckleberry Finn.82 Indeed, publishers were not enthusiastic about any royalty payments, which usually forced them to raise retail prices. A less famous author had no., hope. of getting any worthwhile sum. A tense comment from one who should have known desci ibed the situation:

48

From the outset of his career as a publisher, my father declined to consider any suggestions for publishing works of contemporary authors excepting under arrangements with those authors. Irrespective of the protection or lack of protection afforded by law, he held that authors should be left in full control of their productions and that political boundaries had no connection with the property rights of the producer. . . ,76 Finally, a proper law would prevent mutilation by publishers who "adapted" works for American readers. That this practice was not uncommon is evident from its mention in the Petition of British Authors and occasional correspondence of writers." The second major argument, national interest, had many facets. The basic tenet was that American authors and American literature would benefit by the passage of a copyright act. Precisely how this would come about was not always too clear. Advocates argued that the United States would never achieve cultural independence until it ceased to rely upon foreign literature, even a source so closely allied as England. The petition of American authors presented to the Senate by Clay on February 15, 1837, emphasized this aspect: Native writers be as indispensable as a native militia; that, although foreign writings may be had cheaper, owing to the present law of copyright, our people must look for the defense of their habits, their opinions, and their peculiar institutions to those who belong to them and have grown up with them—to their own authors, as to their own soldiers.78

, We do not see much hope in the: future for the American writer in light literature—:as!a matter of profit it might be abandoned.83 '! It was almost abandoned, and men and women who realized that the profession of letters would not offer them a livelihood turned to other fields. No one knows what;might have been produced in America during the years when these conditions were prevalent, 70

78

Putnam, op. cit., pp. 32-33. 77 Ci supra, 42, and Putnam, op. cit., p. 86, for an example of a complaint voiced by Elizabeth Barrett Browning. 78 U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 141.

49

Hart, op. dt., p. 127. Lehman-Haupt, op. cit, p. 113. 81 Hart, op. cit., p. 93. 53 Ibid., pp. 148-149. 53 Bradsher, op. cit., p. 93, quoting a letter from Carey to W. Gilmore Simms, 80

Of I

Start of the Movement in -America

Start of the Movement in America

52

eray.S8 Putnam made a great point of the superior quality of books which would become available, if the proper law passed: Those who are familiar with the business of making books assert further, moreover, that a copyright measure will have the effect of lessening the prices of all the better classes of books . . . and the only publications which will be increased in price are the cheapest issues of foreign fiction. . . . In France and Germany, on the other hand, countries both fully under the control of copyright, both domestic and international, the first issues of standard and current publications, both copyright and non-copyright, are cheaper than anywhere else in the world. . . . In Europe, where international copyright is in force, the best books are the cheapest. [Italics his] 89 T h e ' opponents of international copyright concentrated on refuting the points outlined above, and on depicting the dire consequences to American publishing interests and the general reading public should a law be passed. Generally, they avoided the more philosophical discussion of abstract property rights, and the Senate Committee on Patents, for one, went along with them' on this, for in its report to the Senate it declined even to discuss the theory. of authors' natural rights.90 When they did touch on the theory, the opponents of copyright tended to hold that copyright was merely a matter of legal right, extension of which would be a matter of mere expediency, not justice. Since foreign authors had no statutory rights in America, to copy their works could not be considered legally as piracy or an injustice. A petition of the booksellers of Boston, presented to the House on April 16, 1838, by Mr. Fletcher of Massachusetts pointed out that the law in England applied only to the British. It suggested that when England offered protection to others, the United States could do the same. It was a question of statute promoted by expediency or interest, not a matter of justice.91 88

Putnam, op. cit., p. 87, quoting a letter of Robert Browning. George Haven Putnam, The Question of Copyright (New Y o r k : G. P. Putnam's Sons, 1891), p. 442. 00 U. S. Congress, Senate, Report of the Committee on Patents, 25th Cong.,

53

A number of secondary arguments were advanced, not too seriously. The English authors received payment at home, and that should be enough for them. Their books were not mutilated to any serious extent. Actually, they should be pleksed to the honor implied in copying, which incidentally increased their fame at home. Similarly specious arguments were directed at the protesting American authors. The basic theme here; seemed to be that they were so poor that their works just weren't worth printing. Such arguments are obviously weak, and one j has an impression that their proponents did not really place too much value on them. They preferred to rely on arguments cdntered around the effect of the proposed laws on industry, dragging in, if possible, the issues of protection. The opponents of copyright were openly protectionists, which often worked to their advantage. The petitions presented against the Clay Bill afford an excellent summary of the contentions of the opponents of international copyright. Various groups presented a total of nineteen memorials against the bill. The first, presented on behalf of the citizens of Philadelphia by Buchanan, claimed that the proposed law would be productive of the most "deterious [sic] consequences."93 Pointing out that book-making establishments were a very important branch of the national industry, the petitioners claimed that it would be paralyzed if the bill became law. They drew a pathetic picture of unemployment, as well as noting the effect of a copyright law on prices. Congressmen were invited to consider how their constituents would react to the "tenfold" increase in book ! prices, which they predicted. The Columbia Typographical Society of the District of Columbia presented a similar memorial a few weeks later.93 It stated that the union felt that the proposed law would result in the "immediate destruction" of the book printing business of the United States with consequent unemployment to the thousands of workers depending thereon. It, too, mentioned the increase of prices to be expected.

89

2d Sess., 1837, Doc. 494. 01 U . S. Congress, H . of R., Executive Documents Cong., 2d Sess., 1837, Vol. X, Doc. N o , 340.

of the H. of R., 25th

02

U. S, Congress, Senate, Public Documents printed by order of the Senate, 25th Cong., 2d Sess., 1937, Vol. II, Doc. No. 102. "Ibid., Ill, Doc. No. 190.

Start of the Movement in America

Start of the Movement in America

The two petitions contained all the important points dear to opponents of copyright. They were never essentially changed or improved upon, though various secondary considerations might he added as time and circumstances dictated. Little needed to be added. The threat to American industry, fear of unemployment, and cheap books for the masses had sufficient effect, at least upon Congress. Clay had presented his bill in February of 1837 and the argument raged till June 25, 1838, when the Committee on Patents brought in its report.94 It was adverse to the Clay Bill. The Committee stated that the existing law was sufficient. It offered its opinion that the petition of the British Authors was a screen for their greedy desire to monopolize the American market. The Ruggles Report, as it is called after its chairman, specifically stated that the operation of the law would work a great detriment to American manufacturers. The Report must have diminished the chances of success for the Clay Bill, but the point was never put to the test, for the session ended without further discussion

advocates were divided among themselves. The opposition, which presented what Congress regarded as most cogent arguments, was too much to overcome. Congress, reflecting the general attitude, was indifferent to the whole subject. Most Americans had no real understanding of the fundamentals; or implications of copyright. They did, however, appreciate the feet that somehow or other the lack of copyright was associated with cheap books, which they wholeheartedly favored. Moreover, we must not neglect the rather intangible factor of anti-British feeling. Although difficult to measure or specify, it is generally conceded that the feeling was prevalent in nineteenth century America, j and that it colored the opinion of Americans on the advisability of protecting British interests.

54

on July 9th. Clay tried to keep the matter before Congress, introducing the same bill on December 17, 1838, and again on .January 6, 1840. Both were referred to the Committee on the Judiciary, which sent a report to the floor that it neither agreed or disagreed with the bills.95 Clay could not get time for a hearing, and on January 17, 1841, they were ordered to lie on the table and there they died. Clay made a last effort on January 6, 1842, when he again presented the same bill, which was again referred to the same Committee. This time, Clay interrogated the members and finding them adverse, requested that no report at all be made.96 There the matter rested. This finished what may he considered the first phase of the fight for international copyright. It is easy to account for the failure of the early efforts. The movement lacked organization, and its M

U. S. Congress, Senate, Report by John Ruggles of Maine from the Committee of Patents, 25th Cong., 2d Sess., 1837, Doc. No. 494. 95 U. S. Congress, Journal of the Senate, 26th Cong., 1st Sess., 1839, 87. "This was probably because the Senate was then engaged in discussion of a copyright treaty with England, which it was hoped would be a more acceptable way of securing protection than a law.

55

Finally, the pre-occupation of America with other problems, deemed more pressing, explains a large measure of the indifference to copyright. The tariff, the Bank of the United States, public lands, and the approaching struggle over slavery precluded any serious or lengthy consideration of what must have been regarded by most as a very minor matter.

The Movement Before the Civil War

CHAPTER III T H E MOVEMENT BEFORE THE CIVIL W A R

Having received a setback in the defeat of the legislation proposed by Henry Clay, the movement for international copyright remained dormant for a few years. One new advocate, however, plunged into the controversy with a vigor which, if it secured little in the way of concrete results, did at least keep the idea of copyright alive. The German-born publicist and scholar, Francis Lieber, started to give open support to the movement in 1840. He was admirably equipped with philosophical background and mternationalistic propensities perfectly suited to the issue. Lieber had come to the United States in 1827, fleeing from his native Prussia under police investigation for his liberal tendencies.1 In 1840 he was professor of history and political economy at South Carolina College. In the course of his career in America, he had come to number among his friends many influential politicians and literary figures, particularly the fast-growing groups of Germanophiles. Those who, in 1828, cooperated with him in writing the Encyclopedia Americana comprised some of the most distinguished American authorities. Lieber gained his first fame from editing the encyclopedia,2 as well as from many works on political science and jurisprudence. The latter volumes, particularly, exhibited a regard for property rights which go far to explain his support of the movement for extension of the federal law. In addition, Lieber was perennially concerned with international problems. He promoted the cause of international arbitration among private persons and groups, acting as official and private arbiter on various occasions; he wrote 1

"Francis Lieber," Dictionary of American Biography, X I , 236. -Lieber was not too careful of copyright in compiling the Encyclopedia, for he borrowed heavily from books, periodicals and other encyclopedias. So did those who prepared articles for him. Frank Freidel, Francis Lieber, Nineteenth Century Liberal (Baton Rouge, La.: Louisiana State University Press, 1947), pp. 68, 7S,

56

57

for the Revue de Droit Internationale; and generally he contributed to (some would say meddled in) every international affair from 1830 to 1872. International copyright was just one among his many liberal projects, like the Red Cross or prison reform. The favorite Lieber device to promote anything he favored was the pamphlet. In March 1840 he wrote a long essay on the theory of property in literature, ostensibly in the form of a letter to his friend, Senator Robert Preston of South Carolina, a former president of the college. The letter may have been inspired by a letter from Henry Clay on the publishers' lobby!: The difficulties which have been encountered, and will continue to be encountered, in the passage of a liberal Copy Right law proceed from the trade [italics his], especially the large book printers in the large cities. It is very active, and brings forward highly exaggerated statements both of the extent of Capital employed and the ruin that would be inflicted by the proposed provision for Foreign authors. These statements exercise great influence on members of Congress, many of whom will not enquire into the truth of them.3 Lieber intended that Senator Preston use 1 is essay, and the notes he supplied along with it, in the next Senate debates. But it came too late for this, and Lieber decided to publish it as a pamphlet. Not able to secure a publisher willing to print it on a commercial basis, itself a commentary on the situation, Lieber had it done by Wiley & Putnam at his own expense. The work was at least widely reviewed, if not read, and stirred up some comment from the Boston Courier, the American Jurist, the North American Review, the Charleston Mercury, and the Southern Quarterly Review.11 The theme of Lieber's argument was the strict theory of property in literature. He dwelt upon the special form of creation involved in literary production, pointing out how this was above all a product of individuality, not made by governments, but following s C l a y to Lieber, June 19, 1839, in Lieber papers quoted by Frank Friedel, "Lieber's Contribution to the International Copyright movement," Huntington Library Quarterly, V I I I (1945), 201-202. * Friedel, Francis Lieber, p. 190, f. 41.

The Movement Before the Civil War

The Movement Before the Civil War

from the mind of the authors. While Lieber was generally admired for his sound philosophy of property (his work, Property and Labour, was well received the following year), the admiration did not extend to every specific idea. Senator Preston at first agreed with his friend, but said later that he was shaken by an article of Charles Renouard in the American Jurist which developed the theory that an author's right to just recompense could come only from positive, not natural law.6 Besides doubting the theoretical foundations of Lieber's cause, the Senator was not unaware of the more practical side when he noted:

law of England, even going so far as to make detailed suggestions on the provisions of the Talfourd Bill.8 The first edition of Pickwick Papers in book form was dedicated to Talfourd in recognition of his efforts to aid authors. 9 Dickens expressed disappointment when the Talfourd Bill failed to get through Parliament. The need for international copyright tb protect his own works from American piracy must have occurred frequently to Dickens. He had, in fact, mentioned the practice in! correspondence with the editor of the Knickerbocker Magazine two years before his visit.10 Whether or not Dickens came to this country primarily or precisely as a missionary for international copyright is disputed. After publication of American Notes upon return to England, an unsigned article in the Edinburgh Review for January 1843, asserted that Dickens had gone to America as a kind of missionary in the cause of international copyright. Dickens hotly denied the accusation, and accepted an offer of retraction, made to him by the editor, in this way:

58

Great Britain had two authors to our one, and was, therefore, more interested in the protection of mental labor; while the United States published three or four times as many books and, therefore, was more interested in protecting publishers.6 As far as is known, nothing came of Lieber's pamphlet. A friend promised to give a copy to President Tyler and discuss the matter over a friendly bottle of wine, and Lieber's biographer feels that this played a part in Tyler's sending to Congress some correspondence with Great Britain concerning international copyright. Since Congress had requested it, and there was no apparent reason to refuse, Lieber's pamphlet may or may not have helped.7 The lack of evident response did not discourage Francis Lieber. for he supported international copyright till his death in 1872. His efforts, however, were soon overshadowed completely by another far more fascinating event. The event which brought the matter of copyright to the attention of the nation at large was the visit of Charles Dickens to America in 1842. Dickens was no stranger to copyright movements. He had interested himself in the efforts of his intimate friend, Serjeant Talfourd, to obtain improvements in the copyright 6

Preston to Lieber, April 30, 1840, in Lieber Papers quoted by Friedel in Huntington Library Quarterly, 203. 0 Preston to Lieber quoted in Walter Pforzheimer, "Copyright and Scholarship," English Institute Annual (1941), 190. "' Friedel, op. cit., p. 189 and Messages and Papers of the Presidents, IV, 150.

59

In reference to the article itself, it did, by repeating this statement, hurt my feelings excessively; and is, in this respect, I still conceive, most unworthy of its author. I am at a loss to divine who ils author is. I know he read in some cut-throat American paper this and other monstrous statements. . . . And though I care very little for the opinion of a person who will set the statement of an American editor (almost invariably an atrocious scoundrel) against my character and conduct, such as they may be; still my sense of justice does revolt from this most cavalier and careless exhibition of me to a whole people, as a traveller under false pretences, and a disappointed intriguer. 11 Whether or not this was a motive, and regardless of what were the 8 Mamie Dickens (ed.), The Letters of Charles Dickens (London: Macmillan & Co., n.d.), p. 11. "Edgar Johnson, Charles Dickens (New York: Simon & Schuster, 1952), I, 212. M Knickerbocker Magazine, XV (1840), 520.

"Dickens to Macvey Napier, editor of the Edinburgh 1842, in Dickens, Letters, 86.

Review,

Jan. 21,

60

The Movement Before the Civil War

The Movement Before the\ Civil War

motives for his visit,12 once here Dickens repeatedly and boldly advocated international copyright, and engaged actively in schemes to promote passage of a federal law to this effect. Charles and Kate Dickens arrived in Boston harbor on January 22, 1842. The receptions, ovations, banquets and general admiration which they received in Boston and the other cities of their tour were the spontaneous tributes of thousands of American admirers of "Boz." From the President down to the least citizen, everyone desired to see or meet one of the nation's idols. Outside of the general fatigue, constant lack of privacy, and a brief brush with slavery in the South, only one jarring note intruded upon what was practically a triumphal procession through America and Canada. From the very first, the issue of piracy and copyright threatened to mar every joyous occasion. Dickens arrived on a Saturday, and copyright was first mentioned the following Monday. Oddly enough, it was not Dickens that brought up the subject, but an American.

precisely the same ideas of justice and national interest used by advocates in the United States:

Among the festivities planned for Boston's celebrations in honor of Dickens was a sketch entitled, Bos: a Masque Phrenologic, by the celebrated comedian, Joe Field.13 The skit made Boz say: Besides Fm told they'd rather read me there, For nothing, too! Yet not for that I care: Although, no doubt, their authors would delight To see me paid, so get themselves "right:" But pshaw! I must not quarrel with the "Trade," In golden smiles more richly am I paid; Dickens did not mention the subject himself till the first day of February, the date of the great public subscription dinner in his honor. He could have chosen no better, or worse, time. In the presence of the most distinguished citizens of Boston, Dickens concluded his speech with a few words on copyright. He brought out 13

W. C. Desmond Pacey, "Washington Irving and Charles Dickens," American Literature, XVI (1944-45), 332-339, claims that a prominent motive was to visit Irving. 13 Johnson, op. cit., I, 367. Johnson offers the opinion that this may have given Dickens the idea of saying something about copyright, since the Americans brought it up first.

61

I hope the time is not far distant \jvhen they [authors], in America, will receive of right some substantial profit and, return in England from their labours; and when we, in England, shall receive some substantial profit and return for ours. . . . There must be I an international arrangement in this great respect. . . . It becomes the character of a great country; first, because it is justice; secondly, because without it you cb.n never have, and keep, a literature of your own.14 Later, during the entertainment which followed the banquet, Joe Field sang a comic song with the lines: : Just think of all of yours, Boz, Devoured by them already; Avoid their greedy lures, Boz, Their appetites is steady; . For years they've been a-feasting, Boz, Nor paid for their repast ;15 No one else made any mention of piracy or copyright. Dickens repeated similar sentiments in Hartford and New York. Soon he drew upon his head quite a bit c f criticism. The idealists felt that there was something indelicate iiii the theme; some felt it in poor taste to mention such sordid matters at affairs having no purpose except to honor the author; somd would have agreed with Chesterton's remark that "a beautiful young dreamer, with flowing brown hair, ought not even to be; conscious of copyright. " 1 6 Dickens did not ask whether or not j the matter was delicate or polite, but whether it was just. Boz can serve, quite unconsciously, as an example of a new phenomenon. It was then little understood that the writer was not only an artist but also an "economic man." The nineteenth century • '* Ibid., p. 375. iS Ibid., p. 377. 10 Gilbert K. Chesterton, Charles Dickens (London: Methuen & Co., Ltd., 1925), 15th ed., p. 142.

62

The Movement Before the Civil War

still clung to the older idea of the gentleman-amateur exhibiting his talents for his equals or for noble patronage, seeking fame, perhaps, but hardly sordid lucre. Among the realities of the emerging democratic, industrial society of America this attitude was an anachronism. Books were articles of commerce, and authors were brand names. Some publishers realized this, for Harper said: Consider what a book is to a publisher. It is so much pork,, cotton and corn. If your book is the best poetry that has ever been written in the century, it will not pay you nor the publisher to print it.17 Dickens, of course, was interested in copyright as a matter of personal consideration because of his well-known losses. He was even more interested in the moral issue of honesty and justice, as he conceived it. The aspect of Dickens as a worker for social reforms has largely been lost in the brilliance of his literary accomplishments, but he devoted much time and energy to a variety of projects, including national and international copyright. Aroused by the violent criticisms and as if to emphasize that he could not be gagged, Dickens went out of his way to 'advocate copyright. The remarks in Boston were rather mild and in the nature of obiter dicta among expressions of gratitude for his cordial reception and praises for the ideals of America. But in Hartford, on February 8, he told his audience that he had made a compact with himself, that while he was in America he would omit no opportunity of referring to the subject.18 On this occasion, he practically accused America of helping to cause the death of Sir Walter Scott through lack of a decent copyright law. He waxed eloquent over the lack of a single grateful dollar, to buy a garland for Scott's grave.19 Dickens became very perturbed as time went on. In a letter home, he remarked: I vow before high heaven that my blood boils at these enormities [piracies] so that when I speak of them I w 18

J. H. Harper, The House of Harper (New York: Harper, 1912), p. 153.

Johnson, op. tit., I, 381. "Ibid.

The Movement Before the Civil War

63

seem to grow twenty feet high, and to swell out in proportion. "Robbers that ye are," 20 I think to myself when I get upon my legs, "here goes !" ; In New York City, on the occasion bf the Dickens Dinner of February 18, his friends tried to dissuade him from mentioning the topic, but Dickens seemed adamant. Deciding to make the best of what might be a very awkward situation, the committee in charge of the dinner decided to suppojl him. In the course of the many speeches, Washington Irving proposed the toast: International Copyright—it is but fair that those who have laurels for their brows should be permitted to browse on their laurels.21 Cornelius Mathews rose and replied with a speech in favor of international copyright. It is doubtful if ithis address had any appreciable effect, for it was late in the evpning and the guests displayed "palpable inattention," wandering] around and talking during the speech.22 Mathews emphasized the effects of copyright revision upon American authors and literature, and defended the right of Dickens to speak on the subject. For some unknown reason, Dickens respectfully declined to speak at all that evening.23 Mention of Cornelius Mathews provides an opportunity to discuss briefly two points to copyright, which were reflected in this person, known as "The Centurion." They are, first, the division among the authors of America, all of jwhom might have been supposed to be united on a question so often proclaimed to be of importance for them, and, secondly, the nature, value and form of the distinctively American literature which it was supposed 20

Dickens to Harry Austen, May 1, 1842, quoted in Dickens, Letters, 67.

One wonders if his blood also boiled when,1 in order to fill out a volume of the Pickwick Papers, Dickens pirated a part of Charcoal Sketches by the Philadelphian, Joseph C. Neal. Cf. Qarence Gohdes, American Literature in Nineteenth Century England (New Y o r k : Columbia University Press, 1944), p. 81. 21 Pforzheimer, loc. cit., 191. M "International Copyright," Knickerbocker, X I X (1842), 384. ^Ibid.

64

The Movement Before the Civil War

The Movement Before the'vCivil War

would arise once a copyright law damned the flow of foreign works. Despite signatures on petitions, the authors of America in the period before the Civil War were not united in their attitude toward revision of the existing statute. Dickens, for one, complained of their silence and indifference.24 Perhaps he was a bit unfair, for there were at least two sides to the issue, and the questions that divided them were more complex than Dickens could know. The New York literati, then leaders of the nation, were badly divided among themselves, lacking all semblance of even the literary cohesion which marked the Boston or Concord groups, as well as the community of taste and purposes evident in Charleston.25 Lewis Gaylord Clark of the Knickerbocker, literary arbiter of one group, led his forces in a decade-long battle with Cornelius Mathews and the members of Duyckinck's Tetracty's Club,2{i soon nicknamed "Young America." It was more than a question of literary criticism, for the groups clashed on politics (Whig v. Democrat), on social issues, and concepts of society. Copyright was merely a facet, reflecting the general division.

exteriorly to the fashions which prevailed.28 Mathews must have been one of those hapless souls who have the ability to make everyone they meet hate him. All too many of j his contemporaries were willing to drop their personal quarrels to battle against him. The cause of international copyright may halve been hurt more than helped by the support of such a man. The editor of the Knickerbocker said exactly that.29 Yet Mathews took up the cause wholeheartedly. The occasion of his first public mention has already been noted. The timing was excellent, so much so that he has been jaccused of adopting the cause only after he was certain that it would give him notoriety.30 Giving only passing reference to theories |of property or to the injustices perpetrated upon unrenumerated Englishmen, Mathews concentrated on the benefits to be expected in America from the passage of a new copyright law. He thought they would be two: first, the purification of literary criticism, and, second, the opportunity for American genius to generate its own literature. The very need for such a literature, jlet alone its form, was disputed. "Young America" itself had not really faced the question, and could not state definitely what it stood for. Derisive critics continued to ask in what it would consist, and specifically what would constitute American literature. Wcrse than that, they held up false representations of what would happen. It seemed to his opponents that Mathews was trying to Iiilnit writers to American subjects. They came out strongly for the universality of literature, claiming that this had nothing to do with nationalism. Yet, they were nationalistic, too; the Knickerbocker magazine had an announced policy of promoting a national literature, and its editor, Louis Gaylord Clark, celebrated Irving, Longfellow and Cooper as refutations of a "maudlin patriotism which would confine authors to the country of their birth." 31 Lowell was opposed to a "national" literature, stating:

Cornelius Mathews was a young New York lawyer, who, after being admitted to the Tetracty's Club, had decided to devote his life to literary pursuits. He soon conceived a passionate belief in native American literary genius, and led the Club forth upon a search for the proper form of this sorely-needed literature. He constantly dinned in the ears of all who would listen to him the need for literature which would be specifically American. An international copyright law was, in his thinking, a necessary prerequisite for his primary purpose. Unfortunately, "The Centurion" excited among his contemporaries, "a frenzy of loathing beyond the limits of rationality."27 Even his friend Simms, who said he admired and respected him immensely, complained that Mathews was "perverse," and "too independent in mood," and wished that he would at least conform M

Johnson, op. cit., I, 380. ^Vernon L. Partington, Main- Currents in. American Thought (New York: Harcourt, Brace & Co., 1927), II, 175. w "Evert Duyckinck," D.A.B., IV, 137. 27 Perry Miller, The Raven and the Whale (New York: Harcourt, Brace and Co., 1956), p. 80.

65

Any literature, in so far as it is national, is diseased, inasmuch as it appeals to some climatic peculiarity, 23 Mary C. Simms Oliphant et al. (eds.), The Letters of William GUmore Simms (Columbia, S. C.: University of South Carolina Press, 1952), I, 438. M "International Copyright," Knickerbocker, XIX (1842), 385. 80 Miller, op. cit., p. 95. st Jbid., p. 99, and "Lewis Gaylord Clark," D.A.B., IV, 137.

66

The Movement Before the Civil War

The Movement Before the\ Civil War

rather than to the universal nature. . . . No great literature has ever been purely national; why should we not claim our share in England's? 32

complex and very bitter. All patriotic Americans of good will were divided over the "Americanism" of "Young America." Professor Perry Miller says that the situation defies rational analysis.36 To be entirely fair, we must note tha|t opposition to Mathews and division over literary matters did riot necessarily imply opposition to international copyright. Louis Gaylord Clark supported copyright, on the basis of property ri^ht, rather than literary merits, yet he was Mathews' most bitter enemy. George Bancroft, who was Mathews' friend and political ally, opposed copyright, declaring that there could be exclusive right to intellectual creations:

Yet, in the very first issue of his magazine, The Pioneer, Lowell boasted that he would draw chiefly on the original works of American authors in an effort to promote national literature.33 It was a very confusing situation. The confusion was compounded by the fact that many literati were half convinced that America might not be able to produce its own distinctive literature. There was an apologetical and wistful tone to nineteenth century American literary criticism, because the United States had no ivied battlements, no haunted Parnassus, nor Gothic castles. Admiration for such legendary scenery was all too evident, and a people hungry for epics and tragedy looked for cisatlantic satisfaction.34 Almost too defensively, Emerson said in 1824: It is admitted that we have none [literature], but we have what is better. We have a government and "a national spirit that is better than poems or histories. . " .33 The national spirit would eventually create a national literature, but this was not so evident in the 1830's and 1840's. The Knickerbocker school went hunting in the legends of our Dutch past; the New England Transcendentalists sought the animating genius. But snobs, conservatives and Anglophiles ruled the literary roost. American literature was dominated by Irving, Bryant, and Cooper. All three were remote, inaccessible, and already legendary in the 1840's. America admired them, but was frustrated by them. What else could one do but imitate them? What other form could our literary genius take ? No one knew the answers to these questions, and the controversy aroused in an effort to settle them was most

Every form, to which the hands of the artist have ever given birth, sprung first into being as a conception of his mind, from a natural faculty, which belongs not to the artist exclusively, but to man. . . : Mind becomes universal property; the poem that is published in England, finds its response on the shores of; Lake Erie and the banks of the Mississippi. . . .37 Similarly, the Democratic Review was friendly to the "Young America" group, but consistently opposed to copyright on the grounds of free trade. 38 Faction contendec! with other factions, and both within their own factions. The issue was most confused, and it is no wonder that Dickens despaired. The incident at the Dickens Dinner was ignored by the New York papers with the notable exception of Horace Greeley's New York Tribune. Greeley had already comfe to Dickens' defense in an editorial on February 14, 1842, where he said: We trust he will not be deterred from speaking the frank, round truth by any mistaken courtesy, diffidence, or misapprehension of public sentiment. He ought to speak out on this matter, for who shall protest against robbery if those who are robbed: may not? Do we look well offering him toasts, compliments and other syllabub while we refuse him naked justice?

af>

Ibid., 256, and 115. ^"Prospectus," The Pioneer, I (1843), i. on page one the strictures against national literature. ** Benjamin T. Spencer, "The Smiling Aspects of Life and a National American Literature," English Institute Annual (1949), p. 127. ^Ibid., 118.

67

88

Miller, op. tit., p. 186. George Bancroft, Literary and Historical Miscellanies (New York: Harper & Brothers, 1855), 412, 427. 39 Miller, op. cit., 99. OT

The Movement Before the Civil War

The Movement Before the. \Civil War

The morning after the dinner, the Tribune printed the full text of Mathews' speech (much longer than the spoken version), and supported it with another editorial. Greeley urged Americans to do something, specifically to put their names to a petition for international copyright.. The idea of a petition had also occurred to Dickens. In a letter to his friend, William Forster, on February 24, 1842, Dickens requested him to obtain a short letter signed by the leading authors of Great Britain supporting his pleas for copyright. This he proposed to publish in the leading papers, and he was sure that. Senator Henry Clay would see to it that the petition was brought to the attention of Congress, for the Senator had once again introduced his bill.39 Dickens shortly received a letter signed by twelve distinguished authors, including Lord Bulwer, Lord Tennyson, Serjeant Talfourd, and Sidney Smith. He also received an additional note from Thomas Carlyle which was a discourse upon the Commandment "Thou shalt not steal" as applied to books. Dickens promptly had them published in leading papers early in May 1842. For some unknown reason, the letters were never presented to

against the passage of any international copyright law. Like others before them, the booksellers pointed out | that the employment of more than 160,000 people, as well as the millions of dollars invested in the book trade, were at stake. The same day, Representative Toland of Pennsylvania presented tivo similar memorials of citizens of Philadelphia engaged in printing and selling books.4ri The Senate printed part of the memorial; the House did not. Neither Senate nor House acted further on them. Dickens left America on June 7, 1842, jwithout having a chance to do anything further for copyright, or to see the final effect of his efforts. He was, however, astute enough to realize that there was Httle likelihood of anything's being accomplished. He summed up the situation in a letter which bitterly assailed the deceit, vanity and materialism of America:

68

Congress. Senator Clay, however, had presented to Congress on March 30, a petition signed by twenty-five American authors.40 It was referred to the Committee on the Judiciary, and died there. The identical petition had been presented to the House a few days earlier, and had suffered the same fate.41 This flurry of activity, and the publicity given to Dickens, roused a few of the opponents of copyright to similar action. A convention of booksellers, meeting in Boston, memorialized Congress. Senator Buchanan presented their plea to Congress on June 13, 1842.42 The petition requested an increase in the duty on foreign books, and protested 38

This was Clay's last effort, previously mentioned in Chapter II, p. 54. *°U. S. Congress, Senate, Journal of the Senate, 27th Cong., 2d Sess., 1841, 256. •"U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 1841, 531. * a U. S. Congress, Journal of the Senate, 27th Cong., 2d Sess., 1841, 394. One of the firms, T. & J. W. Johnson, made a specialty of printing a complete line of English law books.

69

I'll tell you what the two obstacles are to the passage of an international copyright law with England: firstly, the national love of "doing" a man in any bargain or matter of business; secondly, the rational vanity. . . . The Americans read him [the English author]; the free enlightened, independent Americans; and what more would he have? Here's reward enough for any man.44 The sentiment thus expressed reflected the! gradual disillusionment and disappointment which Dickens experienced as his stay in the United States drew to a close. In spite of; many new friends, and much he could praise, Dickens had not found the ideal republic he had, a bit naively, expected. For some time, he could not speak of America with his old enthusiasm., As for copyright, he said in 1842: I should add that I have no hope of the. States doing justice in this respect, and therefore do not expect to overtake those fellows [dishonest publishers]; but we may cry "Stop thief" nevertheless, especially as they wince and smart under it.45 ** U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 951. " D i c k e n s to Forster, quoted in Johnson, op. cit., 421. 45 Dickens to Miss Pardoe, July 19, 1942, in Dickens (ed.), Letters, p. 70.

70

The Movement

Before

the Civil

The Movement

War

Twenty years later he could say the s a m e : I do not believe there is the slightest chance of an international copyright law being passed in America for a long time t o come. 46 H e was correct, but Dickens had stirred u p the advocates of copyright, and after his departure, they returned to the fray with renewed interest. Another association, was the result. T h i s time it w a s called the American Copyright Club. T h e purpose of the Club was to try to unite the hitherto scattered efforts for copyright revision. Its first officers, elected in 1843, w e r e : President, William Cullen B r y a n t ; Vice President, Guilan G. Verplanck ;47 Corresponding Secretary, Cornelius M a t h e w s ; Recording Secretary, E v e r t Duyckinck; and Treasurer, Alexander W . Bradford. 4 8 T h e Executive Committee had five members, Charles F e n n o Hoffman, Charles Briggs, P a r k e Goodman, John Keese, and H . J. Raymond. 4 9 T h e Club had a core of about twenty-five men, chiefly well-known members of the New Y o r k literati, and about 125 "associate members" including every prominent author of the day, as well as a few well-known outsiders. T h e associate members generally gave no more support to the cause than to allow the use of their names.

Before

the Civil War

71

T h e presence of H e n r y Jarvis Raymond on the Executive Committee, and the fact that Wesley H a r p e r was a member of the Club, demand explanation. Raymond had been editor of one of the most notorious of the pirating magazines, Harper's, and the presence of one of the H a r p e r brothers in a Club devoted to revision of a law from which they profited immensely is, at first sight, rather odd. Wesley H a r p e r was the firm's correspondent, and the most popular member of the family. 50 Both w^re charter members of the Copyright Club. T h e presence of an Varch-enemy" 01 of copyright and his managing editor was explained by P u t n a m : T h e H a r p e r s were, from an early date, members of the publishers' association, but they; were usually able by some difference of opinion at the: critical moment t o emphasize that, however desirable in! itself international copyright might be, "the particular measure" that had at that time been put into shape was not going to be satisfactory. 52 Evidently the H a r p e r s found it convenient to infiltrate the organizations of the opposite side. T h e American Copyright Club, as far as is known, limited its action to the publication of An Address to rhe People of the United States in Behalf of the American Copyright Club.BZ A Committee composed of Bryant, Mathews and Francijs L. Hawks 6 4 wrote the

w

Dickens to Mr. Serle, July 29, 1868, ibid., p. 694. *' Gulian Verplanck was a New York Congressman, Chairman, of the Ways and Means Committee from 1831 to 1833. He had been instrumental in securing the passages of the copyright law of 1831. Verplanck was popular among the New York literati, and co-editor of The Talisman, with William C. Bryant. Cf. D.A.B., XIX, 253. 48 Alexander Bradford was a New York lawyer, corporation counsel and Surrogate of New York City. He was interested in systematic codification of New York law. During the 1840's he served as co-editor of the Protestant Churchman. Cf. D.A.B., II, 551. w Henry Raymond is well known as the co-founder of the New York Times. He had been chief assistant to Horace Greeley on the Tribune, and managing editor of Harper's Weekly. His brief political career included several terms in the New York State legislature, including a term as Speaker in 1851. Cf. Elmer Davis, History of the Hew York Times (New York: The New York Times, 1921), Chap. I, which details an account of Raymond.

TO

Harper, op. cit., 315. It seems that Wesley Harper was physically weak and of pious mien. His mother had destined him for the Methodist ministry, but he entered the firm like the rest of the family, and was more than usually successful despite his weak personality. His brother seems to imply that Wesley was very shrewd and able to ^obtain results where the other failed. 61 Harriet Martineau in a letter written jri J 843 spoke of "our arch-enemy, the firm of Harpers of New York." The letter is in the possession of and quoted by Pforzheimer, loc. cit., 190. i 6S George Haven Putnam, George Palmer Putnam: A Memoir (New York: G. P. Putnam's Sons, 1912), p. 367.' 63 American Copyright Club, An Address of the People of the United States in Behalf of the American Copyright Club (New York: The Club, 1843), 20 p. "Francis L. Hawks was a New York lawyer and Episcopalian minister. He served as pastor of several New York City Churches and became a friend

The Movement Before the Civil War

The Movement Before the 'Civil War

address, which was published in 1843. The document was a lofty and sentimental appeal to the American people, aimed to call them to the performance of their duty. While the usual arguments are repeated, the Address did not dwell on the philosophy of property or the claims of justice, as much as it appealed to other high ideals. The effect of publication cannot be known for certain. While it undoubtedly helped to publicize copyright, one doubts if it had any effect on the opponents who considered books as so much "pork, cotton and corn," or if many readers and subscribers were led to support the movement by its organization. Then, as now, most people purchased a book or a magazine to be informed'or amused; they do not operate on principle, and trouble themselves very little over copyright.

cussion.58 Poe's biographer feels that there is some evidence that anonymous articles on international copyright, which appeared in The Edinburgh Review and Blackwood's Magazine, were the work of Poe.59 In the South, William Gilmore Simms, also an associate member of the Club, took up the copyright question. He may have been moved tQ enter the battle by the fact that he was intensely devoted to Bryant, and because he himself specialized in depicting typically American scenes of the southern border, just as Cooper did for the North. 60 Charleston was the center 6i intellectual life in the South, and the Southern Literary Messenger (sometimes styled the Southern Literary Review) gave it a forum and a focus. In 1844 Simms wrote a series of letters in the Messenger which discussed every angle of copyright.61 He canvassed his friends for signatures to the various copyright petitions, and his correspondence contained frequent mention of the problem.62 A letter of October 27, 1843, to George Frederick Holmes contained a brief statement of the importance of copyright in Simms' mind:

72

After publication of the Address, the Club seems to have declined rapidly. Enthusiasm died out rapidly, and it did nothing more about copyright. The cause of the decline was the displeasure of the members over the "monkeyshines of Cornelius Mathews." 55 According to Rufus Griswold, "monkeyshines" meant excessive provincialisms and the personal characteristics of Mathews -already mentioned.56 The fate of the Club illustrated what Louis Gaylord Clark meant when he said that Mathews might do more harm than good for the causes he advocated. Even if the Club did nothing more, individual members and associates were active at this time. Edgar Allan Poe, an associate member, became interested in copyright and devoted some time to studying its legal aspects.57 He discussed the possibility of copyrighted English publication of his works with Dickens, and the issue of international copyright naturally entered into the disof Evert Duyckinck. Hawks specialized in church history, wrote several books on that subject, and became the first President of the University of Louisiana. H e also served as co-editor if Appleton's Cyclopedia of Biography, and for a time as editor of the New York Review. Cf. D.A.B., V I I I , 416-417. M J o y Bayless, Rufus Wilmot Griswold (Nashville, Tenn.: Vanderbilt University Press, 1943), pp. 84, 93, 118. ™Md.,v. 92. 6T Hervey Allen, Israjel, the Life and Times of Edgar Allan Poe (New Y o r k : F a r r a r & Rinehart, Inc., 1934), p. 402 ff.

73

. . . and the attainment of a proper copyright law is one of the necessary agents in bringing about the awakening of the American public to the importance of a national literature. 63 That Simms well understood the difficulties involved and the im™Ibid., 424. Allen points out that Poe had been so hurt by foreign competition that he could secure publication for his work only by waiving royalties. Poe is another example of the influence of copyright inadequacy on the form of literature. H e turned from novels to short stories, not because he admired the short story, but because no other form would pay. Cf. 403 ff. "Ibid., 522. [ 00 Van Wyck Brooks and Otto L. Bettmann, Our Literary Heritage (New Y o r k : E. P. Dutton & Co., 1956), p. 28. j 61 William Gilmore Simms, "International; Copyright," Southern Literary Messenger X (Jan. 1844), 7-17; and under the same title X (Mar. 1844), 1 3 7 4 5 1 : X (June 1844), 340-349: X (Aug. 1844), 449-469. Simms was rather proud of his articles and made frequent mention of them in his many letters. M 01iphant (ed.), Letters, 1, passim. n Simms to Holmes, Oct. 27, 1843, in Letters, I, 378.

The Movement Before the Civil War

The Movement Before the Civil War

probability of getting Congress to do anything can be seen from a letter to James Fenimore Cooper the following year:

termination not to mingle with anything in the country more than I can help.66

74

I have no hope that Congress will do anything in the matter [copyright]. There are some stupid prejudices to be overcome. The notion of the half-witted fellows from the West is that this is a favor to the English. . . . But the real difficulty is in the indifference of the people to the whole subject, and Congress is a body that dares not act, until it has been instructed by popular legislation.6* Mention of Cooper brings to mind his refusal to join the Copyright Club. This was a serious blow to those who emphasized the value of copyright protection for a distinctively American literature. With Irving and Bryant, James Fenimore Cooper had done more than anyone to create a distinctively American literature. Centered upon the forest triangle above the junction of the Mohawk and Hudson Rivers, the "Leather-Stocking" tales brought the freshness of border life to civilized Americans in the new cities. The Deerslayer, the Pathfinder and Leatherstocking were all one and the same—the honorable fearless, free, humble and grand American borderer.85 Oddly enough, Cooper wrote most of the American stories while abroad in Paris, Florence, Rome and Dresden. His works were praised by the great European critics, and influenced more than one generation on both continents. Perhaps years spent abroad, and years spent in splendid isolation on the great Cooper estate of Otsego Hall, influenced Cooper's decision to stay clear of the movement. His own words are not too clear. He accepted the principle: . . . that this country, in common with all other countries, is bound to protect literary property, on principles connected with common honesty. . . . Unless we have a copyright law, there will be no such thing as American literature in a year or two. [But he expressed his] de°* Simms to Cooper, April 10, 1844, in Letters V, 380. Simms seemed to have been one of the few "associate members" of the Club who was really interested enough in copyright to work for it. ra Brooks and Betteman, op. cit., p. 19.

75

That Cooper said he would join the Copyright Club if he joined anything did not help much; he still remained aloof. Other well-known authors seemed reluctant to speak out on the question with any great zeal. They might have been willing to put their names to a petition, but few went any further. Dickens, for one, could not understand this, and he complained: The notion that I, a man alone in America, should venture to suggest to the Americans that there was one point on which they were neither just to their own countrymen nor to us, actually struck the boldest dumb! They were Washington Irving, Prescott, Bryant, Halleck, Dana—all of them devoted to the question, and no one dared to raise his voice and complain of the atrocious state of the law.67 It was not quite fair to include Bryant ill the list, for as editor of the New York Evening Post he took a strong stand in favor of international copyright. Like so many others, Bryant had both a personal and an altruistic motive for supporting the movement. He editorialized on the matter, and loaned the pages of his paper to the advocates of copyright. He was always willing to preside at a dinner, or to accept the Presidency |of something like the Copyright Club. His prestige helped the movement, and his name among petitioners to Congress must have impressed readers and aided in bringing the matter to the attention of the public. This in itself, was no small contribution, for many, like Simms, were coming to believe that a campaign for popular education of the whole subject of copyright would be the only way to bring Congress to act. Certainly Congress would not act in the 1840's. The fifth and final presentation of the Clay Bill and its fate have already been 88

John H. Kourvenhaven, "Cooper and The American Copyright Club: An Unpublished Letter, American Literature, XIII (1941), 265. The letter was written to Cornelius Mathews, Sept. 25, .1843. "Johnson, op. cit, I, 380.

76

The Movement Before the Civil War

The Movement Before the- Civil War

noted. The chief activity during this decade was the offering of the above-mentioned petitions. Although the Irving petition stirred the House of Representatives to empower a select committee, composed of John P. Kennedy, Robert C. Winthrop, John H. Brockaway, John McKeon and Benjamin G. Shield, to consider the propriety of amendments generally in the existing laws of copyright,68 there is no further mention of the petition or the work of the committee in the Journal of the House.

Charles Sumner presented with the comment that he united himself with the petitioners. James Fenimore Cooper had signed it, as had Herman Melville, William Cullen Bryant, George Palmer Putnam, Washington Irving, Francis Li Hawks, Bayard Taylor, and John Jay. All the petitions suffered the same fate; the pattern of action is identical. The petition was presented, then referred to some committee, and nothing more was ever heard thereafter. The opponents of international copyright may have fired a more effective barrage of opposing petitions. jDuring the same period, eighteen petitions against international copyright were presented to Congress. A typical one was that of Sherman & Johnson of Philadelphia, presented to both Senate and House on June 13, 1842. The firm was very frank:

The next petition came from a new source. On December 15, 1843, Choate presented to the Senate a memorial from ninety-seven publishers, printers, booksellers and binders, praying the passage of an international copyright law.69 George Palmer Putnam had drafted the document, and secured the signatures. The signatories included such notables as D. Appleton & Co., of New York; George S. Appleton of Philadelphia; Ticknor & Co.; Lippincott, Bartlett & Walford; John S. Taylor & Co.; T. H. Carter & Co.; A. S. Barnes & Co., and a host of minor firms.70 Unfortunately, other important and well-known firms, particularly Harpers, were not represented. This time the Senate sent the petition to the Committee on Printing. On December 16 John Quincy Adams presented the same petition to the House, where it was referred to a select committee of Adams and eight others. 71 Nothing was ever heard of either petition again. The rather frustrating flow went on. Every few years the advocates of copyright presented another petition. On March 22, 1848, John Jay and William Cullen Bryant presented one to the House of Representatives.72 Three years later, the American Medical Association presented one to the Senate.73 A year later Irving presented another one to the Senate.74 This one Senator " U . S. Congress, Journal of the House of Representatives, 27th Cong., 3d Sess., 64. 00 U. S. Congress, Journal of the Senate, 28th Cong., 1st Sess., 1844, 30. "Putnam, op. cit., p. 166. 7L U. S. Congress, Journal of Ike House of Representatives, 28th Cong., 1st Sess., 1844, 58. ™Ibid., 30th Cong., 1st Sess., 595. ra U. S. Congress, Journal of the Senate, 31st Cong., 2d Sess., 137. ™ Ibid., 32nd Cong., 1st Sess., 535.

77

All the riches of English literature are ours. English authorship comes to us as free as the vital air, untaxed, unhindered, even by the necessity; of translation, into the country; and the question is, Shall we tax it, and thus impose a barrier to the circulation; of intellectual and moral light? Shall we build up a dam, to obstruct the flow of the rivers of knowledge?75 This was the firm, mentioned above, which put out a "Law Library" series containing not a single book by an American author.76 Like the petitions on the other side, theirs, and those of the rest of the opponents, ended up on| the table with nothing further done. Still, this was precisely whjat this type of petitioner desired, and in that respect, their petitions can be said to have succeeded. All but two of the petitions between 1842 and 1860 concerned the negotiations for a reciprocal copyright treaty with England. Why so few petitions against the revision of our own federal law of copyright were presented can only be conjectured. It seems most likely that opponents of revision realized that activity was hardly necessary. At least this was Biryant's opinion. He felt that the indifference of Congressmen was the major obstacle, observing TO U. S. Congress, Public Documents Printed by order of the Senate, 27th Cong., 2d Sess., Vol. IV, No. 323. w Thorvald Solberg, "International Copyright in the Congress of the United States," Library Journal, XI (1886), 257.

The Movement Before the Civil War

The Movement Before the Civil War

that they did not even try to understand the problem and yawned whenever it was broached. Preoccupation with other matters was also an obstacle. George Putnam favored this explanation, stating that his experience showed that whenever international copyright had been before Congress, some other topic of more pressing interest stole the attention of Congressmen. He felt the matter had never really been discussed:

seem to limit the validity of Putnam's j explanation, though lack of time for all its wants to do, or all that should be done, is always a problem for Congress. One last effort to secure international copyright took place before the Civil War intervened to place a moratorium on such efforts. This was the attempt to secure a | treaty or convention with Great Britain covering at least the Essential matter of equal reciprocity, necessary to stop the most flagrant piracies. We have already seen how every effort in Congress between 1836 and the Civil War had failed. Meanwhile, the situation in the book trade not only had not improved, or even remained static, but had grown worse. "The game" was now practiced on an even greater scale. Publication of novels alone had tripled between 1830 and 1840.84 In the late i820's Carey & Hart might have published a pirated edition of Scott as large as 9,000; in 1840 Bulwer-Lytton could calculate conservatively that his Zanoni had reached 30,000 Americans.85 By 1843, when Dickens' American Notes was published, 50,000 copies were sold in three days. As the book trade expanded and the technology of publishing improved, so did piracy grow. It was during this period that periodicals first entered "the game" on a large scale. They enjoyed the advantages of fewer problems of format, and no worry at all about binding. Two types of periodical engaged in piracy. The popular monthly magazines, such as Harper's Monthly, which Fletcher Harper set up in June 1850, existed almost entirely on "appropriated" material. Harper's Monthly enjoyed phenomenal success, selling 7,500 of its first number and gradually developing a circulation of 200,000 by I860.86 The material cost not a penny! Of course, Harper Brothers were not alone in this type of venture; there were many, many others. Along with them, the large, city newspapers soon found that it was profitable to print a whole novel in a gigantic "extra" which would sell for approximately a dime. Both were greedy for foreign material, and helped to increase the prevalence of piracy.

78

It has unfortunately happened that whenever the subject of International Copyright has been introduced into Congress, there has been some other topic of more immediate interest to engross the attention of the Members, and therefore it has never been broadly or freely discussed either in the House or in the Senate.77 Putnam specifically mentioned that the exciting Oregon boundary disputes interfered with the movement in the 1840's. Certainly that and the Mexican War, the consequent territorial expansion and the growing slavery controversy, must all have operated to hinder somewhat. Against this, however, we must note that Congress found time to pass four private copyright bills for the relief of Mrs. Henry Schoolcraft for her work, History, Statistics, Conditions and Prospects of the Indian Tribes of the United States,76 of Thomas H. Sumner and his work describing a new method for ascertaining the position of a ship at sea/ 8 of Levi H. Corson and his perpetual calendar,80 and of John Rowlett and his book of interest tables.81 Congress also approved a general revision of the domestic copyright acts,82 and extended copyright protection to photographs and photographic negatives.83 These events would 77

Putnam, op. cit., p. 335. U. S. Congress, Journal of the Senate, 35th Cong., 2d Sess., 1858, 117, 180, 183, 207, and Journal of the House of Representatives, ibid., 243, 356. n Ibid., 33rd Cong., 1st Sess., 1854, Senate, 607, 608, and H. R. 1241, 1246, 1269. 80 Ibid., 30th Cong., 2d Sess., Senate, 200, 230, 233 and H. R. 414, 464, 470. a Ibid., 27th Cong., 3rd Sess., Senate, 268, 276, 287 and H. R. 520, 536, 553. 82 II U. S. Stat, at Large, 138 (1865). 83 13 U. S. Stat, at Large 540 (1865). During this period Congress also discussed the creation of the Smithsonian Institution from February 28 to August 10, 1846, and spent some time on details of the deposit of copyrighted books and the records of copyright material. 78

79

"* James D. Hart, The Popular Book (New York: Oxford University Press, 1950), p. 90. 83

39

Ibid., p. 79. Miller, op. cit., p. 314.

80

The Movement Before the Civil War

The Movement Before the Civil War

While the most important centers of literary production and printing, and hence of piracy, were undoubtedly the great cities of New England and the Atlantic seaboard, the small-town printer and publisher deserves mention. There were innumerable smaller cities and towns throughout the nation where active publishing was carried on. Out of contact with the literati, the small-town publisher depended very largely on reprints of both English and American authors. While not on a very large scale, his work was important to the local inhabitants, and taken together with the sum of total of his fellow printers all over the land added appreciably to the amount and extent of piracy.87

dent Fillmore interrogated Harpers on the advisability of negotiating such a treaty in a letter of August 9, 1852.92 The firm declined to offer any advice in the matter, let alone cooperate in the negotiations:

To combat the increase the advocates of copyright tried a change in tactics. The idea of a treaty was not new. As long ago as 1838 Lord Palmerston, Great Britain's Secretary of State for Foreign Affairs, had written to the United States Minister in London on the possibility of a treaty. No action had been taken on the proposal, though the House of Representatives had requested a copy of the correspondence,88 and President Tyler had complied with their request.88 Now in 1852, George Palmer Putnam revived the idea. England and France had just sighed exactly the type of reciprocal agreement, which would prohibit the most common form of English-American piracy.30 Acting upon suggestion, for which Putnam claims the honor of initiating,91 Presi-

After this answer, the whole matter was dropped. Putnam tried again in February of 1853. On February 15 five publishers, G. P. Putnam Co., D, Appleton & Co., Robert Carter & Bros., Scribners and Stanford & Swords, addressed a letter, drafted by George Putnam, to Secretary of State Edward Everett.94 It suggested a treaty with England, and outlined possible provisions. This time there were more fortunate results, but credit is due chiefly to Edward Everett, who was not without literary propensities and an interest in copyright.

^ H e l l m u t Lehmann-Haupt, The Book in America ( N e w Y o r k : R. R . Bowker Co., 1951), pp. 121 ff. There has been relatively little written upon the life and influence of the small-town publisher, perhaps because of the very numbers involved. 83 U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 1841, 672. There is no further mention in the Journal of any action on the correspondence. *" Ibid., 700 where the House noted the reception of a copy of the correspondence, which was referred to* the same committee which was considering the petition of Washington Irving. Evidently the correspondence died with the petition. 00 15 and 16 Victoria, c. 12. 01 Putnam, op. cit,, p. 165 ff. George Haven Putnam claims the honor for his father, but it is difficult to know for certain how much influence this had on Fillmore. Certainly, Putnam would never have suggested that the Harper Bros, have anything to do with the matter. Perhaps the President felt that the other side should be consulted before he did anything.

81

But although our experience and Observations have led us to form opinions more or less definite upon it, we have concluded, in consequence of oijir close relations with all the parties to be affected by i t . j. . to abstain from taking any steps to influence the action of our government in regard to it.83

Edward Everett was a Unitarian minister, who had had a most unusual combination of political and academic careers. At twenty he had .studied at Gottingen University in I Germany along with George Ticknor, and was the first American to receive the Doctorate in Philosophy from that university. jHe later lodged with Sparks and Longfellow at the famous Craigie: House, and circulated among the literati of New England.66 For a time he was editor of the -North American Review. Everett had been Governor of Massachusetts, and when Daniel Webster died, Everett succeeded him as Secretary of State for a brief four months.96 Contact with the leading literary figures of New England, as well as his own work, had given Everett an interest in the problem of international 98 M

Harper, op. cit., p. 107, quotes the very brief letter.

Harper Brothers to Filmore, August 23, 1852, quoted in ibid., pp. 107-108. w Putnam, op. cit., p . 167. 50 Brooks and Bettmann, op. cit., pp. 48, 50, 54, 85. 90 "Edward Everett," D.A.B., V I , 223-226.

The Movement Before the Civil War

The Movement Before the Civil War

copyright, and his name had headed the petition from Boston in 1838.97 Everett and George Putnam, were close friends, and the Secretary of State sought the help of his friend in drafting the treaty.88 He had found it to be difficult. Through John Crampton, the British Minister to America, Everett negotiated a convention, in spite of the fact that the Minister was personally opposed to the idea." The treaty was short and quite simple. It merely provided that authors entitled to copyright in one country should be entitled to it in the other country, on the same conditions and for the same length of time.100

United States, in order to obtain copyright under the treaty, was inserted, and President Pierce included this information in a message presenting the treaty to the Senate for a second time on February 23, 1854.104 Despite this, the treaty was tabled and no action was taken on it then or later. Indeed, no further action on international copyright troubled Congress until after the Civil War. Naturally, the attention of both legislators and constituents on. both sides of the question was directed toward the war. Of course, the piracies went on, and even enjoyed a certain war-time boom as works about soldiers and wars became popular. Les Miserables, for example, sold by the thousand in both North and South despite the scarcity of paper.105 Macaulay's History of England had been pirated by the thousands, but in 1861 was selling in the hundreds of thousands.106 "The game" was far from being over, but further struggles to control it had to wait till hostilities had ceased. Then the fight was taken up again.

82

President Fillmore sent the treaty to the Senate on February 18, 1853. In a short space of time, sixteen petitions against the Senate's advice and consent thereto were presented. Senator Buchanan of Pennsylvania and Representative Toland of Philadelphia presented most of the petitions,101 but others came from New York, Ohio, Michigan, Connecticut and Massachusetts.102 Some of the petitions were ordered to lie on the table, and some were referred to various committees. Evidently they were sufficient to obtain their desired purpose, for there was no vote taken on the treaty in that or subsequent sessions of Congress. Everett and Putnam were convinced that the major difficulty was the lack of a manufacturing clause in the treaty similar to the clause in the national copyright law. Many of the petitions were from manufacturers, who felt they would be hurt by the lack of such a provision. Therefore, the five New York publishers wrote another letter, urging Everett to add such a clause to the treaty.103 A provision to the effect that books must be manufactured in the M

Cf. Chap. II, p. 47. Putnam, op. tit., p. 167. 09 This information was volunteered by George Palmer Putnam in his account of the negotiations. Ibid. ^Richard Bowker* Copyright, Its History and Lam (Boston: Houghton, Mifflin Co., 1912), p. 347. 101 U. S. Congress, Journal of the Senate, 33rd Congress, 1st and 2nd Sess., 1853-54, passim, and Journal of the House, passim. ™Ibid., Senate, III, 225, 251, and passim. 103 Bowker, op. cit., p. 347 and Putnam, op. cit.r p. 168. M

83

"* Bowker, op. cit., p. 347. It is interesting to note that there is no mention of the treaty either as far as negotiations, provisions or consideration by the Senate in Hunter Miller (ed.), Trea'ies and Other International Acts of (he United States of America, William S. Holt, Treaties Defeated by the Senate, or Samuel Flagg Bemis, The American Secretaries of State and Their Diplomacy. 1M Hart, op. cit., p. 116. 100 Ibid., p. 117. I

The Movement After the Civil War to 1880

CHAPTER IV T H E MOVEMENT AFTER T H E CIVIL W A R TO

1880

During the Civil War period, 1860 to 1865, the private citizens who were interested in advocating international copyright did not engage in any noteworthy activity designed to secure a change in the federal law. Congress itself paid little attention to what must have been a very minor problem. It did, however, discuss some aspects of the domestic copyright situation, and passed the Act of 1865, which was a series of amendments to the existing laws.3 The Congress of the Confederate States of America passed, in 1861, its own copyright statute, which included provision for the protection of foreign authors. 2 Although the Confederacy was willing to enter into treaty arrangements with other nations on this subject, no conventions were ever concluded, since no nation recognized the Confederate States to this extent. It seems most likely that this action of the Confederate Congress was merely part of its general effort to secure the good will and assistance of other nations. Although it is an interesting sidelight, its example was not in any way effective on the United States. The Congress of the United States did pass laws during the Civil War which affected copyright indirectly, particularly the tariff acts. As already noted, books had not been singled out in the tariff enactments, but were treated along with the other general items subject to the varying rates which ranged between five and twelve per cent.3 During the Civil War Congress twice raised the general tariff rates in an attempt to secure needed revenue. The Tariff of 1864 placed a tax on imported books of twenty-five per cent ad valorem.4" It continued in force after the war was over. M4 Stat, at Large 540. a E . Merton Coulter, The Confederate States of America (Baton Rouge, La.: Louisiana State University Press, 1950), p. 508. 3 Donald Marquand Dozer, "The Tariff on Books," Mississippi Valley Historical Review, X X X V I (1949), 73. 'Ibid., 74.

84

85

During the tariff struggles which characterized the 1870's and 1880's the principal opposition to the tariff on books came from academic groups which wanted copies pf foreign works in order to keep abreast of the progress of science and learning abroad. They attacked the retention of such a high rate on books as a tax on the dissemination of knowledge.5 There was also some pressure from immigrants hungry for the literature of their homeland. The desire to retain some connection with jhe culture of their native i

land for themselves and for their children was particularly ardent among those who spoke languages not cbmmon in America. The Russians, for example, were among the latter groups, and they were, moreover, particularly interested in world-wide news.0 Such people, knowing that they were not likely to see again the land of their ancestors, desired to retain some of their proud heritage and pass it on to their children. For this reason they needed books and papers not usually printed in the United States. It was true of those who spoke the iSlavic, Scandinavian and Oriental tongues, but such a situation certainly did not exist in the case of the Germans. By the 1850's there was available in the United States enough German literature to satisfy the most ardent Teuton. Editions of Schiller, Goethe, ILessing, Heine, Humboldt and many others were commonly sold, and John Weik of New York City had an "American Poprlar Library of German Classics."7 Support for a continued high rate on books came chiefly from publishers and booksellers, who were aided in their efforts by the trade unions, and, unfortunately, by certain well-known authors. In 1870 Harper Brothers and Henry Lea of Philadelphia tried to interest the protectionist Senator Justin: Morrill of Vermont in an increase in the tariff on books;8 They! were not successful, but they and the other interested parties did succeed in preventing a tariff reduction for some time. The; publishers and typographical c

Dozer, op. cit., 76. "Oscar Handlin (ed.), Immigration as a Factor in American History (Englewood Cliffs, N . J.: Prentice-Hall, Inc., 1959), p. 91. ' C a r l Wittke, Refugees of Revolution (Philadelphia: University of Pennsylvania Press, 1952), j>. 314. 8 Dozer, op. cit., 75.

86

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

unions petitioned in great numbers against every proposed tariff reduction. In this action they were supported by such authors as Thomas Bailey Aldrich, William Dean Howells, Oliver Wendell Holmes and John Greenleaf Whittier. On February 13, 1883, Holmes, Aldrich and Whittier put their names to a petition against reduction.9 The petition made the point that American authors needed American publishers, and whatever hurt publishing must also hurt writing. Dozer feels that the authors were practically forced to assume this attitude by one of the publishers active in the fight against reduction. Henry Oscar Houghton, founder of Houghton, Mifflin & Co., was a leader of the opposition, and the three authors were, at that time, "virtual retainers" of Houghton.10 The interest in a high tariff in books resulted in the playing of some changes upon the arguments used in debating international copyright. The same familiar arguments were used: viz., that the tariff barrier would slow down the influx of foreign books which might otherwise exert too great an influence upon the American mind and character, and that the barrier would operate to promote a distinctively American literature. It is interesting to note that precisely the same arguments, slanted a bit differently, were used to support international copyright. Dozer pointed out that the publishers were:

revived the International Copyright Association. Putnam, with four other men, Samuel Irenaeus Prime,1!2 Henry Ivison,13 James Parton1* and Egbert Hazard, formed a jcommittee and issued a call to interested parties to join a new association. Meanwhile, they began again to deluge Congress with petitions. Between February 19, 1866, and April 10, 1866, twelve petitions were sent to Congress. Senator Sumner presented all but two of these, and all were referred to the Committee on Foreign RjelatJons. The memorials of William Cullen Bryant and Henry Wadsworth Longfellow were the most notable of the group.16 The Committee did not even consider them, for on a motion by Sumner himself the Committee was discharged from considering petitions.16

. . . motivated, in part at least, by a desire to discourage the entry of pirated editions of their own books into the American market and thereby penalize the foreign publishers who refused to compensate them for their use of their literary property. 11 The arguments and even the philosophy were so similar on both sides, only changing as the situation and viewpoint changed, that one is almost tempted to believe that it was all a question of expediency. The first attempt to influence passage of an international copyright law after the Civil War came when George Palmer Putnam 9

Ibid., 81. Ibid., 82. 11 Ibid., 83. 10

87

Lack of success with their petitions discouraged the copyright Association,, which lapsed into a period of inactivity. It came to life again late in 1867, when Charles Dickens paid his second visit to the United States. For years Dickens had been besieged with requests to come to America to give dramatic readings of his works, as he had been doing throughout the English provinces.17 When the news that he finally had agreed to come was made public, the old accusations and controversies ov;r copyright broke out again, iDickens, considerably mellowed citer twenty-five years, 14 Samuel:I. Prime was a Presbyterian clergyman, editor of the New York Observer, for some thirty-four years. His paper was a religious weekly emphasizing social reforms. H e also.served as the author of the "Editor's Drawer" for Harper's Magazine, and was himself a prolific author with over 40 published titles. Cf. D.A.B., X V , 228. | 13 Henry Ivison was the senior partner of Iyison, Phinney, Blakeman, Taylor and Co., then the largest schoolbook; publishing house in the world. H e .was popular among publishers, serving as President of the Publishers' Board of Trade. Cf. J. C. Derby, Fifty Years Among Authors, Books, and Publishers ( N e w Y o r k : Carleton, 1884), p. j316. " J a m e s Parton worked on the staff of the!New York Home Journal and gained his first fame as the author of a life of Horace Greeley. H e specialized in biography and from 1855 on was one ofi the most industrious, prolific, popular;.-and well-paid authors in the United States. H e was married to Sara Parson Willis, the famous "Fanny Fern;" Cf. D.A.B., 278-280. 18 U . S, Congress, Journal of the Senate, 39th Cong., 1st Sess., 196 and 197. 10 Ibid., 39th Cong., 2d Sess., 374. The motion was made and approved on February 28, 1867. None of the petitions was printed by the Senate. " E d g a r Johnson, Charles Dickens ( N e w Y o r k : Simon & Schuster, 1952), II, 1068.

88

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

maintained that his remarks had been "good humored," denying that he had ever expressed himself with "soreness."18 Evidently, both Dickens and America were willing to forget and forgive, because from November 19, 1867, to April 22, 1868, Dickens on tour was the object of even greater adulation than before. He enjoyed an exceptionally profitable reading tour before packed houses. This time he did not speak publicly on copyright, but the newspaper comments before his arrival, and the publicity attendant upon his every move, stirred the copyright committee to life. After some delay there was a meeting held in the Manhattan rooms of the New York Historical Society on April 9/1868, which resulted in the formal creation of the International Copyright Association. It is so called, though its official title was The Copyright Association for the Protection and Advancement of Literature and Art.10 William Cullen Bryant again served as President. George William Curtis was Vice President.20 Edmund Clarence Stedman became Secretary.21 All were personal friends of George

P. Putnam. The Association stated that its primary object was to promote the enactment of a just and suitable international copyright law. It began by collecting 153 signatures on a memorial to be presented to Congress. Authors numbering 101, nineteen publishers, and other distinguished men sighed the petition, but as far as can be determined, it was not at j any time presented to Senate or House. It was, however, published as part of a pamphlet on copyright, which the Association put out under the editorship of E. C. Stedman.22 | Congress had already started to look into the matter. On January 16, 1868, Representative Samuel M.| Arnell of Texas submitted the resolution:

"Ibid., II, 1074. 19 George Haven Putnam, The Question of Copyright (New Y o r k : G. P. Putnam's Sons, 1891), 384. w George William Curtis was one of America's most famous literary figures, and an outstanding example of a man who had set aside the possibilities of greater literary fame because of the urge toward the highest duties of citizenship. H e had been an associate editor of Putnam's Monthly, and in 1863 became editor of Harper's Weekly. Curtis was among the first to advocate civil service reform, serving as Chairman of the National Civil Service Reform Association and doing more than any man in this field. H e left the Republican Party to support Cleveland and became one of the most influential Independents. A most gracious gentleman, he was universally respected as a man of high morals, unfailing rectitude and sincere virtue. Cf. D.A.B., IV, 615-616 and William P. Trent et al. (eds.), The Cambridge History of American Literature (Cambridge: The University Press, 19171921), II, 114 ff. a Edmund Clarence Stedman was a well-known American poet and journalist on the staff of the New York World. From 1864 on he supported himself through his own New York G t y brokerage office, but never lost interest in or retired from writing. H e was quick to "join any efforts to promote the prestige of literature or to alleviate the hard lot of authors." In his day, Stedhain was the most popular and esteemed member of the New York literary circle. Cf. D.A.B., 552-553.

89

Resolved, That the Committee on the Library is hereby instructed to inquire into the subject of international copyright and the best means for the encouragement and advancement of cheap literature and the better protection of authors, and to report to this House by bill or otherwise.23 The House agreed to the resolution. Five days later, the Joint Committee on the Library, composed of Senators John Morgan of Michigan, William Fessenden of Mak:e, Timothy Howe of Wisconsin, and Representatives John Baldwin of Massachusetts (Chairman), Rufus Spalding of Ohio, ana John Pruyn of New York, presented a bill and a report.24 George Haven Putnam claims that the International Association drafted the bill which was presented by Baldwin.26 Certainly both] bill ( H . R. 790) and report were favorable to international copyright. The report stated: We were fully persuaded that it is not only expedient, but in a high degree important to the United States to ^Thorvald Solberg, "International Copyright in the Congress of the United States, 1837-1886," Library Journal, XI (1886), 263. 23 U. S. Congress, Journal of the House of Representatives, 40th Cong.. 2d Sess., 197. *Ibid.t 379. 25 George Putnam, George Palmer Putnam: a Memoir (New Y o r k : G. P. Putnam's Sons, 1912), 168. Representative Baldwin was a Congregationalist minister from Worcester, Massachusetts, who left the ministry to enter politics. H e favored international copyright, "prematurely" says the D.A.B., I, 537.

90

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of justice and honor, in which we should find that justice is the wisest policy for nations, and brings the richest rewards.26

amended several times), needed to be I brought up to date. The statutes were weak in provisions of copyright for paintings, drawings, statuary, and other works of art;;changes in the provisions for dramatic compositions were considered especially desirable. Throughout much of 1869 and the first half of 1870 Congress considered general revision of both copyrights and patents. Each house passed a bill; the H. R. 1714 passed April 25, 1870, and was communicated to the Senate.31 The Senate amended the House bill considerably, and after a joint conference, both houses agreed to the passage of the Act of July 8, 1870.32 This statute remained the domestic copyright law of the United States till the International Copyright Act of 1891. It need only be noted that the former provisions of citizenship and domestic manufacture were retained in the new law, which did not at all affect the situation as far as piracy was concerned.

The bill was designed to secure for authors the benefits of international copyright on the basis of "advancing the development of American literature, and promoting the interests of publishers and book buyers in the United States." 27 The House ordered the report and the bill to be printed, and then recommitted the bill to the same Committee. But upon a motion of Elihu B. Washburne 28 this decision was reconsidered, and the House then voted to lay the bill on the table.29 John Pruyn, one of the members of the Joint Committee, asked and received permission to have a minority report printed, but this does not seem to have been done.30 Nothing more was heard of the Baldwin Bill after this. In fact, Congress did not have the matter of international copyright before either house between February 21, 1868, and December 6, 1871. Congress did, however, after considerable debate, revise the existing domestic copyright law. It was generally admitted that the law, which had not had general revision since 1831 (though M

U . S. Congress, Reports of the committees of the House of Representatives for the 2d Session of the 40th Congress, 1867-68, I, No. 16. The paragraph quoted is the opening of the report which is six pages long., CT U. S. Congress, Journal of the House of Representatives, 40th Cong., 2d Sess., 379. 28 Elihu Benjamin Washburne was a member of a distinguished industrial (flour) and political family. Three brothers served with him in Congress. H e was a close friend of President Grant, a fellow townsman, and chairman of the appropriations committee. Washburne was noted for his opposition to lobbyists and excessive spending. D.A.B., X I X , 504-506. 29 U. S. Congress, Journal of the House of Representatives, 40th Cong., 2d Sess., 545. . * Putnam states that the furor over the impeachment of President Johnson was the cause of the bill's death. Cf. Putnam, Question of Copyright, 385. Perhaps this was why the minority report was never made. John Van Schaick Pruyn was a noted railroad lawyer, better known as counsel in the famous Hudson River Bridge Case. H e represented Albany, New York, in the House at this time.

91

While the advocates of international copyright remained quiet for a while, changes in the book trade and related industries were taking place in the decades after the Civil War. Mention has already been made that the book industry kept pace with the general physical and economic growth of the nation, and that the first half of the nineteenth century was a period of unusual development in typography and the mechanical arts related to book-making and publishing.33 After the war, the fruits of industrialization ripened even more rapidly.34 More technical changes took place in the nineteenth century than had occurred since the invention of printing, and many of them came int<) vogue in America after the Civil War. The change was but a part of the general technical advance of sufficient magnitude to be termed a "second industrial revolution," and is still going on.35 , 31 83

U. S. Congress, Journal of the Senate^ 41st Cong., 2d Sess., 545.

16 Stat, at Large 212 (1870). 33 Cf. supra, Ch. II, pp. 28-30. j :1 * Trent et al. (eds.), op. cit., I l l , 319-323 is an excellent summary of the mechanical improvements of the 1860's, 1870's and 1880's which have a bearing upon American literature. 86 Elizabeth F. Baker, The Displacement of Men by Machines; the Effects of Technological Change in Commercial Printing (New Y o r k : Columbia University Press, 1933), p. 3.

92

The Movement After the Civil War to 1880

Even a partial list of the improvements would have to include book cloth, casing-in, hydraulic presses, backing machines, folding machines, sewing machines, improved mechanical typesetting, the establishment in 1880 of the American point system for type,36 the pantograph,37 the better-known linotype of Otmar Mergenthaler which appeared in 1884, curved stereotype plates, continuous rollpaper printing, done on high speed rotary presses (which implies a host of developments in the paper-making industry), and literally hundreds of other major and minor inventions and new techniques. Enough has been mentioned to show that there was a tremendous change in the mechanical background of the industry, which had its effect on trade practices. During this same period, the press continued to spread throughout the United States, establishing itself where it had not been, and increasing in numbers where it was already established. Any attempt to approximate the number of printers and publishers operating between 1860 and 1890 would be futile, though recent bibliographers have "rescued hundreds of names of firms from oblivion."38 New York City led the nation, followed closely by Boston and Philadelphia; Cincinnati, Chicago, and San Francisco were important regional centers. Every great city had its famous firms, old and new; almost every town worthy of note had at least one local printer-publisher; hundreds of small job presses were scattered all over, some run by boys in an attic. The value of books manufactured has been estimated for the decades following the Civil War :39 ^Hellmut Lehmann-Haupt, The Book in America (New York: R. R. Bowker Co., 1951), 156. 37 The pantograph is an automatic matrix boring machine which eliminates punch-cutting by hand, making it possible to produce matrices with great speed and to engrave various sizes of type from the same design. 33 Lehmann-Haupt, op. cit.r p. 184. 39 Donald Sheehan, This Was Publishing (Bloomington, Ind.: Indiana University Press, 1952), p. 19- Mr. Sheehan states that his figures are adapted from the United States Census Reports with some adjustment.

The Movement After the Civil War to 1880

Year 1860 1869 1879 1889 1899

93

Value 0F Books Manufactured $ 31,063,89s21 41,076,000 90,970,000 93,909,000 121,798,000

' T h e figure here refers to "printing" in general. "This figure, and the following ones, refer to books alone.

More important than numbers or figures is the fact that the years 1860-1890 are notable for marke| changes in the character of American publishing. Most of the important firms originally catered to a special branch of the trade| under personal or family direction by gentlemen who were men of culture, taste, gentility, scholarship and civic virtues. Sons arid relatives' carried on at least to a degree in this tradition in such firms as Putnam's, Harper Brothers, and Appleton. Gradually, however, the firms developed into the more familiar modern general publishers, catering to many fields under corporate management. It would be too much to expect from these establishments more than the average standards of the profession, and among the trade piracy was too common and too familiar to carry much stigma, no matter how often it was personally deplored. A second change was forced upon publishers by the sudden, but quite permanent, boom in magazines after 1865. Hardly a leading firm avoided entering the field of magazine publishing, usually for the simple reason that books alone did not pay. Except for the North American Review, the ;*reat quarterlies had not lived through the Civil War, and the popular magazines which survived, Knickerbocker, Southern Literary Messenger and Godey's Lady's Book, had greatly deteriorated. The new illustrated magazines were well off. They included some founded in the 1850's, such as the Atlantic Monthly (1857), Harper's Monthly Magazine (1850), and Putnam's Monthly Magazine (1853), as well as a host of new ones, such as; Scribner's Monthly (1870), The Galaxy (1868), The Nation (1865) and Lippincott's Magazine (1868). All were immensely profitable.40 w

Trent et al. (eds.), op. tit., Ill, 300. ft., has a lengthy discussion on

American magazines after the Civil War.

94

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

The debate over whether or not publishing is a profitable business proposition was not unknown at this time, and is still going on.401 After the Civil War there was a general feeling that "publishing was the worst business in the world," and Walter Hines Page characterized it as the "least profitable of all the professions, except preaching and teaching."41 How much of this feeling was due to the particular circumstances of the times is impossible to decide. Certainly there existed then one phenomenon calculated to contribute heavily to the melancholia of the regular publishers, to wit, the "cheap book." t The most important event in the book trade during the late nineteenth century was the rise to significant importance of inexpensive reprint series, more familiarly known as "cheap books." The history of this new venture in publishing is most fascinating. Part of it has been told by Raymond Shove, upon whose account this summary depends.42 The story of the cheap book is. important because its existence was based almost entirely upon piracy rendered possible by lack of international copyright:

1891. The term cheap book refers to two types of "book," both conspicuously low in price in comparison with book prices in general.'1* The first type was a cloth-abound "twelvemo" featuring works of standard authors. The second was the quarto in paper covers—or without any separate cover at all; it was called a "reprint," although it was often really a first edition, and was usually published in a series called a "library." Both were made possible by lack of copyright, improvements in manufacturing, economies of manufacture (no proofreading), and the absence of the very important element of risk, which cheap book publishers eliminated by printing only established authors known to be in certain demand. The latter practice was a direct violation of the "trade courtesy" which had gradually developed among most American publishers in lieu of international copyright. According to the unwritten and very irregular custom, there was an understanding among the leading publishers that when one had made terms with a foreign author for the republication of his work in the United States, the rest of the trade would respect thel agreement and leave their colleague in possession of the work. While the principles of trade courtesy were not always scrupulously adhered to, they did afford a certain degree of stability and assurance in what could have been, and for a while was, chaos. The advent of the cheap book publisher threatened to destroy even this modicum of security, for reprints were brought out in complete disregard for the prior "right" of other publishers. Often this practice meant the loss of whatever money the regular publisher had paid to the foreign author and invested in publicity and manufacture.

The so-called libraries—the Seaside Libraryj for instance, the Franklin Square Library, and their fellows— contain nearly all the books which are cheap because they are riot paid for. . . . Piracy is the primary cause of their low prices. . . .43 The first wave of cheap books had come in the 1840's; but enjoyed only a brief two- or three-year vogue. The cheap book really flourished when it was revived: in the 1870's, and continued to be the major item in the book trade until the passage of an international copyright law destroyed the base of their existence in *>a Anon.,' "Letter to a Young Man about to Enter Publishing," Harper's Magazine, CCXIX (Oct. 1959), 182-190. . *lWalter Hines Page, A Publisher's Confession (New York: Doubleday, Page & Co., 1905), p. 77. *2 Raymond H. Shove, Cheap Book Production in the United States, 18701891 (Urbana, 111.: University of Illinois Library, 1937), 155 p. The work was a dissertation submitted for the degree of M.A. in Library Science. 43

Brander Matthews, "Cheap Books and Good Books," in Putnam, Question of Copyright, p. 419.

95

The pioneer in cheap quartos was Lakeside Library of Donnelly, Lloyd and Co., of Chicago, begun;in 1875.4S The most famous of the ten-cent collections included Munro's Seaside Library, The ** Our use of the term does not include the publication of pirated works in railroad timetables, some of which: circulated at the rate of 10,000 per month, nor the so-called "dime novel," which the trade did not consider as cheap books. The dime novel was riot a novel, and during most of its vogue (1860-1900) cost only a nickel. Most of its work and authors were American, and it bore little, if any, relation to the struggle for copyright. Cf. Mary Noel, "Dime Novels," American Heritage, VIII (1956), 50-55. 45

Shove, op. cit., p. 5.

96

The Movement After the Civil War to 1880

The Movement After the Citi'il War to 1880

Riverside Library, Home Library, and the Fireside Library—-all of which specialized in Scott and Dickens. The use of the term "library" or "series" is indicative of the relative unimportance of the publisher. Among regular publishers, the imprint of the house stood for something; in most cases it symbolized high editorial standards and fair business practices. While known in the trade, and to critics, librarians or discerning readers, an imprint meant little to the run-of-the-mill purchaser, who looked merely at the author or title of the works offered. It is significant that cheap books emphasized authors and titles, and most of the statistics on the trade commented on these aspects. The libraries multiplied so rapidly that in 1877 Publishers' Weekly listed fourteen, and noted that some had over a hundred titles. They flourished beyond all expectation. The Munro Library issued 266 pocket-sized volumes in a single year, 1884.46 In 1885 the American Bookseller calculated that approximately 1,500 volumes had been issued in cheap series that year. Using special establishments, called "sawmills," and employing mostly women and the latest high-speed machines, cheap book publishers could turn out reprints with amazing rapidity. Lovell's Library at its peak sold seven million titles annually. The cost ranged from five cents to 10 cents ordinarily, depending upon length, size or even weight, but could go as low as one cent. The ultimate was reached in 1889 when a soap manufacturer gave away a copy with every cake purchased, and whole sets were thrown in with a 50 cent bottle of patent medicine.47 Eventually, Harper Brothers decided to enter the field, and in 1878 the firm began its Franklin Square Library, the only one issued by a regular publisher. The first stated its reasons very frankly in a letter to a fellow publisher: This.was the state of affairs [trade courtesy] when the Lakeside Library, in violation of the laws binding publishers, began to reprint on us not only novels but books of travel for which liberal pecuniary acknowledgment had been made to the authors. The Lakeside "Ibid., p. 17. "Ibid., p. 40.

97

enterprise was followed by the Seaside, and both affairs were nourished by the American News Company, without whose encouragement they would have been short-lived. . . . No book likely to be popular! was safe for a day from these people aided and abetted by the news companies. Darnel Deronda, for which jve had paid £1,700, and had issued in two editions, oijie of them at a low price, was printed upon usj [sic] at twenty cents. Burnaby's Ride to Khiva, for which we had paid £ 3 0 , was printed on us at ten cents. Black's, Green „ Pastures and w .,« & o «nu Picadilly, costing us £600, and the novels of Wilkie Collins, for which we paid nearly £6,000, were printed on us at ten and twenty cents each, j Our idea, therefore, in starting the' Franklin Square Library was to stop the profit on at! least some of their issues. We determined that they should not share our profits, because we intended that there should be no profit for division. We began to print on ourselves.48 A huge firm like Harper Brothers might be able to do such a thing and ride out the storm, or even make a small profit. The others could not, and eventually the cheap publishers themselves ran into difficulties. Prominent among the reasons for the cheap price was the lack of international copyright. The libraries tended to_ be almost exclusively made up of foreign works. In 1886 Harper's issued 54 numbers of their Franklin Square Library; one was by an American author.49 The same authors who had [been popular in standard volumes were equally popular in reprints. Some of the material was very good literature at low prices. In August of 1879 George Munro began to reprint the very expensive English Contemporary Review in large octavo to sell at 20' cents. The trade notices of Publishers' Weekly remarked that "thus does the popular demand for low-cost literature seize hold of the costliest of England's thought." 50 The quality of foreign material tended to decline after 15

J. Henry Harper, The House of Harper (New York: Harper & Bros.,

1912), p. 445. The excerpt is from a letter of the firm to A. I>. F. Randolph •written in February of 1879. w Brander Matthews, op. cit., p. 425. A typical example of the proportion of English and American titles. ™ "Trade Notices," Publishers' Weekly, XVI (1879), 222.

98

The Movement After the Civil War to 1880

The Movement After the Cfyil War to 1880

1885, or whenever a particular firm had reprinted its own edition of the old stand-bys. There just were not that many good unprotected foreign works published, not half enough to satisfy the rapacious demand. In some cases, the publisher might pay the foreign author something. The practice varied, depending entirely upon the personal inclination of the individual concerned. Harper's generally paid; Munro did not. The matter was entirely arbitrary and merely a gesture of courtesy or conscience and "such luxuries of conscience were not indulged in by many." 51 Those who did not pay relied on the argument that the profits on reprints were so small that payment was impossible. It is true that the margin of profit was scaled very low, but the argument does not seem to stand up in the face of the fact that many publishers in this field became extremely wealthy men. It was difficult for the United States in the 1870's or 1880's to plead the old cry of colonial simplicity or pioneering poverty.152 That the pirates themselves soon engaged in such desperate price competition among themselves that they began to fail to survive on an ever-lower margin of profit does not change the situation.53 The vogue of libraries had serious repercussions on the movement for international copyright. The regular publishers were badly hurt by the sales of their cheaper competitors. Charles Scribner wrote:

Many reputable publishers had been opposed to international copyright before the success of the libraries, but around 1880 their attitude became more favorable. For example, the Reverend Isaac K. Funk, founder of Funk & WagnalliS, was at first opposed to any form of international copyright and indulged in piracy on a rather large scale. (Rather incongruously for a clergyman, he began his business career by pirating a life of his Lord.) But by 1884 he had become a convert to copyright revision.55 Advocates of revision found much ammunition for their causein the practices of the cheap book trade. The danger of becoming steeped in English or foreign thought brought forth comment:

We regret very much that the sales are not larger. As we wrote in regard to "Louisiana," the sales of all copyrighted [italics his] novels have very materially fallen off, owing to the unfair competition which makes it possible to sell any of George Eliot's novels for 10 cents.54 61 63

Trent et al.. (eds.), op. cit., IV, 547.

George Stuart Gordon, Anglo-American Literary Relations (London: Oxford University Press, 1942), p. 94. 63 Shove, op. cit,, pp. 37, 63, points out that even the cheap book publishers came to advocate international copyright as the only means to bring order to the trade and make it possible to secure a fair profit. "Letter of Charles Scribner to Dr. Swan M. Burnett on February 9, 1881, quoted in- Sheehan, op. cit.t p. 99.

99

These cheap books are the books which the women of America, allured by the premium of cheapness, are now reading almost exclusively, to the neglect of native writers. There is a resulting deterioration of the public taste for good literature; and there Is a resulting tendency to the adoption of English social standards. It is not wholesome, nor a good augury for the future of the American people, that the books ea< iest to get, and therefore most widely read, should be written by foreigners.86 Exception was made for the "good" English works, by which was meant the classical works of Scott, Dickens, Thackeray, and the like, but most of the new work was considered "bad."57 The miserable print and ugly format of many of the cheap reprints were attacked as dangerous to eyesight and a cultural monstrosity of villainous typography on1 worse paper. Since most were works of fiction, their cultural value could be attacked, and it was obvious by the 1880's that the quality of imported English fiction had steadily declined. The opponents of international copyright, on the other hand, could find some support for their; contentions in the success of cheap books. The most common argument was that an international copyright law would hinder the diffusion of literature. The w

Putnam, Memories of a Publisher, p. 134.

"Matthews, op. cit., p. 420. m Ibid., p. 428. "Good" and "bad" were used freely and loosely by both sides.

100

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

people who bought the libraries were the ordinary people, many of whom could not affort a bound book. Opponents of copyright tended to wax eloquent over the lonely rancher, the humble freed Negro, and poor student who would be deprived of inexpensive literature by a revision of the law. It is debatable whether the cheap libraries flooded the United States with trashy novels, or gave poorer Americans the verybest literature at low prices. The truth would seem to be a combination of both opinions. The system distributed large quantities of both good and inferior volumes. The only point on which there is general agreement is that good or bad were distributed in fantastic numbers, running well into the millions. Before turning again to the fortunes of copyright in Congress, the activity, and opinions of a new element should be noted briefly. Throughout all the discussion on copyright, the typographical unions had hovered discreetly in the background. Despite other disagreements, they had long responded to the appeal of their employers that an international copyright bill which limited book production would also reduce the amount of work for their members. In the 1880's, the union began to see that most of the cheap reprints, especially the duodecimos, were re-set from alreadyprinted plates by cheap, female, non-union help. Stereo plates, once made, passed from publisher to publisher with no increase in work there for union members.

There were, after the Civil War, places in New York City where "over 100 girls were taught the rudiments of printing in one year" in preparation for non-union work, often in the cheap book "sawmills."60 The union tried to organize women, as well as. men, and the first Women's Typographical Uriion No. 1 was chartered on July 19, 1869. The attempt did not prosper, and No. 1 dissolved in 1878, having then only twenty- eight members. All these factors contributed to a change in uniofc attitude towards international copyright, though it would be some time before the details of a satisfactory law met with union approval. The decades of the 1870's, 1880's and 1 1890's each saw one serious attempt to secure passage of a copyright bill. In the 1870's the struggle centered around the Cox Bill in the House and the Sherman Bill in the Senate. In 1871 the International Copyright Association was able to secure the interest of Representative Samuel Sullivan Cox, originally an Ohio Congressman, but now the representative of a New York district. Cox was a courteous and scholarly gentleman, himself a prolific author.61 He is best remembered as an ardent advocate of chil service reform, but he interested himself in a variety of similar reforms and later joined with Putnam and Bowker in the young reformers' New York Free Trade Club.

The use of women printers in New York City started in 1853, and Horace Greeley pointed out that there was "much typesetting that they could do as well as men could, and considerably cheaper."58 The union made its position clear: The printers of the United States have uniformly opposed the introduction of women into printing offices for the following natural reason: (1) that females can be employed at rates much lower than we demand and are properly entitled to, and as a consequence employers would use them for subversion of our national organization. . . .no 08 George A. Stevens, New York Typographical Union No. 6 (Albany: J. B. Lyon Co., 1913), p. 426. ™ Ibid., p. 427.

101

Cox was willing to introduce a bill which was a redraft of the old Baldwin Bill, fashioned by a committee consisting of George Palmer Putnam, William H. Appleton, A D. F. Randolph,62 Isaac E. Sheldon,63 and David Van Nostrand. 64 Cox did so on December w

Ibid.t p. 437. Nicknamed "Sunset" Cox, he wrote witty articles for Harper's Magazine, which the firm later published as a : book under the title Why We Laugh. • ' \\ 83 A. D. F. Randolph was a publisher of religious books and proprietor of the oldest and one of the best retail bookstores in New York City. He served as President of the American Book: Trade Union several times, and was characterized as the "best beloved member of the book trade in New York." Of. • Derby, op.'cit, p. 652 ff.,and Harper, op. cit., p. 445. 88 Isaac Sheldon was the founder and head of the moderately sized firm of Sheldon & Co. °* David Van Nostrand was head of the: firm of the same name, which specialized in military and scientific publications. In that field he was m

102

The Movement

After

the Civil War to 1880

6, 1871. 65 H . R. 740 was a bill "for securing to authors in certain cases the benefit of international copyright, advancing the development of American literature, and promoting the interests of publishers. , . ." It was referred to the Committee on the Library. O n December 11 Cox asked that the rules of the House be suspended to permit him t o introduce a resolution, but the House adjourned before this could be done. A week later, the H o u s e proceeded to a consideration of the motion pending, a n d Cox secured a two-thirds vote in favor of his proposal. H e then introduced the following motion, which the H o u s e considered and passed: Resolved, T h a t the Committee on the Library be directed to consider the question of an international.copyright, and to report to this house, what, in their judgment, would be the wisest plan, by treaty or law, t o secure the property of authors in their works, without injury t o other rights and interests, and if, in their opinion, congressional legislation is best, that they report a bill for that purpose. 6 6 T h e Committee on the Library proceeded to consider copyright and printed the Cox Bill in an extra edition on F e b r u a r y 7. Almost immediately, on February 12, a flood of petitions against any copyright revision descended upon both H o u s e and Senate. W i t h i n a month ten memorials against international copyright had been referred to the Joint Committee on the Library. 6 7 All but three without peer, and gained fame as one of the more rare specialist publishers. Cf. E. M. Crane, A Century of Book Publishing (New York: D. Van Nostrand Co., 1948), 73 p. AH the members of this committee, as of its parent body, were well-known members of the New York publishing or literary world, usually the founders or presidents of their own firms. They came from roughly the same social circles, enjoyed respect and prominence in their profession and in the city, and tended to be found working together on a variety of projects, not just international copyright. ro U. S. Congress, Journal of the House of Representatives, 42nd Cong., 2d Sess., 37. <*Ibid., p. 88. OT At that time the Joint Committee on the Library consisted of Senators Lot Morrill of Maine (Chairman), Howe of Wisconsin, John Sherman of

The Movement

After

the Civil War to 1880

103

of the petitions came from "citizens of Pennsylvania," which meant the protectionist publishers of Philadelphia. Senators Cameron and Scott presented most of them to the Senate. 6 8 I n the House, Representative William D. Kelley w a s the most active opponent. Kelley had been born in Philadelphia and had worked for a time as a copy-reader in a publishing firm there. After serving as a city judge, he entered Congress in 1860 and was subsequently reelected fourteen times. Kelley was considered the best orator on the Republican side of the House, and from 1866 on was the most extreme leader of the protectionists. 69 O n February 12, 1872, h e introduced his own resolution: W h e r e a s it is expedient to facilitate the reproduction here of foreign works of a higher character than that of those now generally reproduced in this country; and whereas it is in like manner desirable to facilitate the reproduction abroad of the wo^rks of our own a u t h o r s ; and whereas the grant of monopoly privileges in the case of reproduction here or elsewhere, must tend greatly to increase the cost of books, to limit their circulation, and to increase the already existing obstacles to the dissemination of knowledge: Therefore, Resolved, T h a t the Joint Committee on the Library be, and hereby is, instructed to inquire into the practicability of arrangements by means of which such production, both here and abroad, may be facilitated, freed fromj the great disadvantages which must inevitably result frqm the grant of monopoly privileges such as are now claimed in behalf of foreign authors and domestic publishets. 7 0 T h e Kelley Resolution was the outcome of a meeting of Philadelphia publishers, which had taken place on J a n u a r y 27, 1872, Ohio, arid Representatives John Peters of Maine, William Wheeler of New York and James Campbell of Ohio. j 68 Senator James Donald Cameron of Pennsylvania controlled the politics of his state from 1867 on, and served! as its Senator from 1877 to 1897. H e was an earnest supporter of the high tariff and measures favorable to business interests. Cf. D.A.B., IV, 368. 03 William Darrah Kelley was an ideal counterpart to Senator Cameron, also an extreme advocate of protectionism, Cf. D.A.B., X, 299-300. TO U. S. Congress, Journal of the House of Representatives, 42nd Cong., 2d Sess., 330.

The Movement After tfa Civil War to 1880

The Movement After the Civil War to 1880

wherein the businessmen of that city expressed absolute opposition to the idea of any form of international copyright.71 The resolution was agreed to and referred to the Committee on the Library. A few days later, on February 21, Senator Sherman of Ohio asked for and received unanimous consent to bring in his own bill.72 The core of S. 688 was a proposal to permit general reproduction and republication of the works of any foreign author upon payment of five per cent royalty to the writer. On the same day Representative James Beck of Kentucky introduced an identical bill in the House.73 Both were referred to the Committee on the Library, making a total of three bills, two resolutions diametrically opposed, and twelve petitions for that group to consider. The Sherman-Beck proposal was one of several alternatives considered at one time or another. Matthew Arnold summed up the opinion of most authors on this type of plan:

should not pass, and on motion of Morrill the bill was postponed indefinitely. The Report stated:

104

But both authors and publishers, and all who have the most experience on this matter, and the nearest-interest, unite in saying that the author's benefit under this plan would be precarious and illusory. The poor man pursuing his ten per cent over Great Britain and Ireland would be pitiable enough. . . . But what should we say of him pursuing it, under an international copyright on this plan between the English-speaking people, over the United States of America?74 On February 7, 1873, the Senate finally received from Senator Morrill of Maine a report on the Sherman bill and all the sundry petitions.76 Technically speaking, the Committee did not report on the Cox or Beck Bills, but they were effectively disposed of by the tenor of the report. The Committee reported that the bill

That, after attentive consideration of the subject matter, the committee have found the question of international copyright attended with grave practical difficulties, and of doubtful expediency, not to say of questionable authority. At the outset of the examination much contrariety of opinion between those who demand the measure as a just recognition of the rights of authors to their works and those representing the manifold j interests, occupations and domestic industries involved! in the contemplated legislation became conspicuous.76 : In the course of the report Senator Morrill mentioned the division among publishers, and stated that printers, type-founders, binders and paper-makers were hostile to the measure. He did not favor the theory of absolute and exclusive property, and held that the Constitution would also be best irterpreted in opposition to such a theory because of the phrase "limited times": The Committee did not feel that the founders of the nation contemplated international copyright: Its [the Constitution's] framers would not, therefore, be solicitous for the protection of individual rights of those alien to its jurisdiction, nor v^ere the circumstances of their national position such as jwere calculated to invite to the consideration of topics so eminently international in their operations and relations.77 The report gave much space to a comparison of the current cost of English and American editions of the same work, and included two tables of comparative prices. The Committee said: While it may be conceded that the tendency of the law of copyright is to stimulate the production of literary and scientific works, it is believed to be equally true that one

""Bowker, op. tit, 352. 72

U. S. Congress, Journal of the Senate, 42nd Cong., 2d Sess., 266. Journal of the H. of R.t 384. 74 Matthew Arnold, "On International Copyright," Publisher's Weekly, X V I (1880), 296. 75 U. S. Congress, Journal of the Senate, 42nd Cong., 3rd Sess., 300.

105

TO

78

Harper's Magazine printed the entire text of the report, XLVI (1873),

906-911. The paragraphs here quoted are the first two. '"Ibid., 907.

106

of its effects is to repress the popular circulation of such works.78 They then concluded; In view of the whole case, your committee are satisfied that no form of international copyright can fairly be urged upon Congress upon reasons of general equity or of constitutional law: that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors as a class, and would be not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hindrance to the diffusion of knowledge among the people and to the cause of universal education ; that no plan for the protection of foreign authors has yet been devised which can unite the support of all or nearly all who profess to be favorable to the general object in view; and that, in the opinion of your committee, any project for an international copyright will be found upon mature deliberation to be inexpedient.79 It is remarkable to note that there is no record .that either Senate or House received any petitions in favor of international copyright from the time the Cox Bill was introduced (Dec. 6, 1871) to the time of the unfavorable Morrill Report (Feb. 7, 1873). There does not seem to be any explanation of this lack of activity, which had apparently been the favorite weapon of its advocates previously. Yet copyright did not go undefended. Representative William Archer of Maryland did make a speech in its favor on the floor of the House, March 23, 1872. This was the first speech on the floor of Congress in favor of international copyright.80 Archer developed the usual peripheral advantages of copyright, but devoted most of his talk to an attack on piracy as a crime against the Seventh Commandment. More important, copyright did find at this time a new supporter who ranks with Putnam in his constant activity for revision. This 9

The Movement After the\Civil War to 1880

The Movement After the Civil War to 1880

Ibid., 907. "Ibid., 911. m Solberg, op. cit., p. 266.

107

was Richard Rogers Bowker. Born September 4, 1848, in Salem, Massachusetts, of merchant ancestry, Bowker moved with his parents to New York City at the age of nine. Educated at the City College of New York, he began a career of journalism, serving from 1868 to 1874 as city editor and then literary editor of the New York Evening Mail.81 Although he turned to other pursuits, Bowker continued for some time to devote part of his interest to journalism, writing for the New York Tribune and other papers. He also edited two monthly free-trade magazines, and from 1880 to 1882 was editor of the European edition of Harper's Magazine. Bowker was an author, poet, world traveler, and from 1890 to 1899 executive vice president of the; Edison Electric Illuminating Co. of New York. In addition to his literary and business careers, he was extremely active in state and national politics, earning the title "the original Mugwump." 82 More important for present consideration is the fact that from its inception in 1872 till his death in 1933 R. R. Bowker was editor and owner (except for a few years) of the most influential American book-trade journal, the Publishers' Weekly. Within a few years the Weekly and Bowker were in ths very center of the writing, publishing, selling and reviewing of books in the United States. He knew intimately many of the leading Americans and Englishmen in the field, and "there were probably several times in Bowker's life when no one had a more comprehensive perspective on the entire book trade of this country." 83 He counted among his friends many who were leaders in the fight for copyright—George Haven Putnam, E. C. Stedman, William Cullen Bryant, A. D. F. Randolph, George William Curtis j and S. S. Cox. The easy intimacy of friendship secured the maximum of cooperation in work for the cause. j Bowker, and the first editor 6i the Publishers' Weekly, Frederick Leypoldt, were, from the jbeginning, staunch advocates of international copyright. The first volume of the journal carried 81

E. McClung Fleming, R. R. Bowker, Militant Liberal (Norman, Okla.: University of Oklahoma Press, 1952), p. 76. The above summary is based upon Fleming's work. "Ibid., p. 117. "Ibid., p. 38.

108

The Movement After the Civil War to 1880

The Movement After the Ciyil War to 1880

several articles,81 and every volume thereafter till the passage of the law devoted some, and in many cases much, space to the need for the revision of the statutes. As an ardent advocate of free trade and tariff revision, Bowker found the cause of international copyright more than compatible with his sentiments on these topics, as well as congenial to his rather puritanical moral approach to issues. Thus, he adhered to the strict theory of literary property:

tion,86 and that the two were united in I support of the movement. William Appleton and David Van Nostrand joined him. Much to his dismay, as he emerged from the Icommittee room, Putnam found a representative of Harper Brothers there to oppose the bill. He expressed surprise, for:

There is nothing which may more .properly be called property than the creation of the individual brain. For property means a man's very own [italics his] and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manufacture. The best proof of oww-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music, or in marble, it would not exist.8-"5

Harpers did oppose the bills, through! their personal representative, a Mr. Hubbard, and by letter to the committee.88 They were supported by H. P. Hazard, a Philadelphia publisher, and by a printed statement of Henry C. Baird presented to the committee a day later. Scribners had opposed the draft of the Cox Bill, which their representative, Edward Seymour/ had not approved at the association meeting, but it is not apparent whether they communicated this to the Morrill Committed. The division among publishers was <.n important factor in defeating the bill, and Morrill made a print of it in the very beginning, in the second paragraph, of his report. The efforts of Putnam were thus in vain, for Congress harkened to the report and to the motion for indefinite postponement; almost a decade passed before international copyright was again mentioned in the halls of Congress. Although the Harper Brothers opposled the various bills introduced into the Senate and House,: they were not without a proposal of their own for international i copyright. On November 25, 1878, the firm addressed a letter to Secretary of State William S. Evarts:

There is no way of assessing the effect of the articles in Publisher's Weekly upon the Congressmen considering the Cox and Sherman bills or upon any of the interested parties. But they did provide the public discussion which some advocates, such as James Russell Lowell, considered to be the necessary preliminary to overcome the ignorance and inertia of people and politicians. In this way Bowker continued to support the movement till the passage of the first law in 1891. While Bowker supported the movement by publications, George Palmer Putnam made his last public effort for the cause before his death on December 20, 1872. He appeared before the Joint Committee in an effort to persuade them to report favorably. He gave the Congressmen to understand that he represented both the International Copyright Association and the Publishers' Associa" T h o r v a l d Solberg has compiled a bibliographical listing of copyright articles in the Publisher's Weekly which was printed in Bowker, Copyright, 34-39. There are literally hundreds of articles. 50 Bowker, Copyright, p. 1.

109

It had not been understood at the time of the latest meeting of the Publishers Association that the Harpers were opposed to the bill or that they intended to antagonise [sic] it.87

Dear Sir,—We see that the; subject of International 50

The Publishers Association was revived in 1872 by G. P. Putnam, though in origin it went back to 1855. when an association was organized to give a banquet at the Crystal Palace : for the authors of the nation. It had been more or less dormant since that occasion. 87 Putnam, George Palmer Putnam-: a Memorial, p. 169. 39 Bowker, Copyright, p. 30. The letter stated that any measure of international copyright was objectionable because it would add to the price of books and thus interfere with the education of the people.

110

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

Copyright is again occupying public attention, and it is not unlikely that there may be renewed attempts at legislation to secure such a law. It does not seem to us, however, that any action originated exclusively either in our country or in any foreign country would ever be likely to result in the establishment of International Copyright. The various bills to accomplish the object which have been proposed from time to time in Congress have conspicuously, we think, deservedly, failed. The net result of all of them may be found in the report of Senator Lot M. Morrill in behalf of the joint Library Committee of Senate and House, made February 7, 1873, a copy of which we send you by accompanying mail. The various treaties that have been proposed between our country and England.have likewise failed. . . . Now, as the last proposition for an International Copyright Treaty came from England, it would seem proper that the next proposition looking to such a measure should emanate from the United States, and we make the following suggestion: That a commission or conference of eighteen American and British citizens, in which the United States and Great Britain shall be equally represented, be appointed respectively by our Secretary of State and the British Secretary of State for Foreign Affairs, who shall be invited jointly to consider and present details of a treaty to be proposed by the United States to Great Britain. . . .89

naire, 'which he circulated among authors and publishers in an effort to stimulate interest and discussion. He asked:

The firm enclosed a draft of a treaty which included as its key provisions the usual manufacturing clause and the stipulation that the work to be copyrighted must be published in America within three months of original publication. There were also the customary details concerning registration of title pages and terms of reciprocity. The "Harper Draft," as it was thereafter called, received a great deal of publicity, particularly in the Publishers' Weekly, which printed the entire text,90 though it does not seem to have been given space in Harper's Magazine. Bowker prepared a questionw

Harper, op. cit., p. 424. "Publishers' Weekly, XV (1879), 317-321.

111

1. Do you favor international copyright? 2. What plan seems to you most; practicable in view of all interests concerned? 3. What method of accomplishing the plan seems most feasible? 4. Can you (if author) estimate sales of your work abroad, and your loss for want of international copyright ? 5. Can you suggest any desirable changes in the domestic copyright law ?B1 RepHes were received from some forty-one authors and seventeen publishers, and from time to time Bowker printed excerpts in the Weekly. The reply of Charles Dudley Warner exhibited both wit and bitterness: 1. Yes. See Eighth Commandment;. 2. Don't mix authors' rights with publishers'. Give every author absolute control of his property in every country in which he complies with the domestic law. If the public and the publishers once admitted the rights of authors, a plan could easily enough be devised. 1 3. By treaty. 4. Have no reason to suppose that sales have been large enough to make my case a; shifting example of injustice. Several editions of one work by different publishers appeared in England; I have j received something from one. On another book, published simultaneously in London and Boston, I got nothing, because a cheap edition of the book with the same title and partly the same matter destroyed the market of the genuine book. : 5: It is useless to suggest. I propose a change in the law of real estate: that no man who builds a house and pays for it shall own it, he and; his heirs, longer than twenty-eight years [then the term of domestic copyright]. 92 ! Bowker kept the Publishers'

Weekly

filled with editorials,

<*.Publishers' Weekly, X V I I , 82. . M Ibid., where there are three similar answers from other authors.

American

112

The Movement After the Civil War to 1880

The Movement After the\Civil War to 1880

articles, and excerpts of correspondence on copyright. In the August 30 issue of 1879 he quoted both advocates and opponents who had written to Harper Brothers. James Parton of the International Copyright Association wrote:

at the Court of Fleet Street." 96 His position as an important figure in Anglo-American letters gave him access to leading authors, publishers and political figures. Bowker helped the cause of his employers' treaty by speaking, writing and distributing an enormous amount of literature on th;e subject. Secretary of State Evarts ordered the United States Minister in London to submit the treaty, although he himself seems to have had some reservations on the subject. He had refused to attend the Dickens banquet, and Harper remarked that he "fought shy of Dickens' copyright propaganda."9? In a letter to George William Curtis, Evarts said: "I cannot, in advance, profess either principles or zeal enlisted on the side of international copyright. . . ."9S Yet, James Parton remarked that "it is highly desirable to seize the golden chance afforded by the occupancy of the Department of State by a gentleman who is much more a scholar and a patriot than he is a politician."98

It gives me great joy to know that your powerful firm are moving in this important matter, because I am aware that when you have put your hand to the plow you do not look back, but plow right on to the end of the furrow. . . . I cannot now object to any of your proposed amendments, and should be glad to have the treaty adopted just as it stands in your pamphlet.95 On another side, Henry Lea94 said: Both as a writer and a publisher I have necessarily given much thought to the subject, and yet there are points in it which have eluded satisfactory resolution. . . . But, in seeking to gain this privilege, caution is requisite lest it should inure almost exclusively to the benefit of English publishers, to manifest detriment of American readers as well as of the industries connected with book manufacture—and this risk is not yet altogether removed by any device I have as yet seen proposed. The interest of the public, moreover, will be affected in many ways, directly and indirectly, by international copyright whether the manufacture be performed in England or here.95

James Russell Lowell was American Minister to England from 1880 to 1885. Already a famous persojnage, he was known to every major literary figure on both sides o'f the Atlantic, and not long after his arrival in London had become one of the most popular and respected of America's representatives among the British. He was on cordial, even "intimate" terms with Lord Granville to whom he submitted the treaty draft.]0° Moreover, in spite of his strictures against a purely "national"! literature, Lowell had been a long-time supporter of international copyright:

In addition to publicity in this country, Bowker was able to campaign for the treaty in England. He had gone to London in 1880 to take up the post of editor of the European edition of Harper's Magazine, and to be, as he put it, "Literary Ambassador ™ Publishers' Weekly, XVI (1879), 221. 01 Henry Lea was the son of Isaac Lea of the Philadelphia firm of Lea & Blanchard. He took over the firm when his father retired in 1851. The company specialized in medical books, but were better known for the Encyclopedia Americana and the usual English novels, which they printed. Lea was a staunch Republican protectionist. Cf. D.A.B., XI, 67-69 and Lea & Febiger, One Hundred and Fifty Years of Publishing (Philadelphia: Lea & Febiger, 1935), 24. x Ibid., 220.

113

It is fifty years since Irving wrote: "How much this growing literature may be retarded by the present state of our copyright law I had recently an instance in the cavalier treatment of a work o!f merit written by an American who had not yet I established a commanding w

Fleming, op. cit., p. 159. Bowker was a friend of the American Minister. James Russell Lowell, who was a fellow Independent in politics. 91 Harper, op. cit., p. 109. 03 Ibid., p. 427. 09 James Parton, International Copyright, "Publishers' Weekly, XVI (1879), 220. 100 Edward Everett Hale, James Russell Lozvell and His Friends (Boston: Houghton, Mifflin & Co., 1901), p. 240.

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

name in the literary market. I undertook as a friend to dispose of it for him, but found it impossible to get an offer from any of our principal publishers. They even declined to publish it at the author's cost, alleging that it was not worth their while to trouble themselves about native works of doubtful success, while they could pick and choose among the successful works daily poured out by the British press, for which they had nothing to pay for copyright." [italics his] This was in 1840, and in the same year Mr. Clay's bill was defeated. We have been fighting for the same cause with the same weapons ever since, and apparently with the same results. But for all of that we have made progress. W e have secured public discussion, and a righteous cause which has done that has got the weather gauge of its adversary. . . . The adversary has cunningly entrenched himself in the argument that there can be no such thing as property in an idea, and I grant this is a fallacy of which it is hard to disabuse the minds of otherwise intelligent men. But it is in the form given to an idea by a man of genius, and in this only that we assert a right of property to have been created.101

American relations at that period, so much so that Lowell's biographer does not even mention his part in copyright negotiation.103 Still, the government of Great I Britain was interested in the problem, and had recently concluded a detailed study of copyright in all its aspects. The Royal Commission, appointed to consider home, colonial and international copyright in 1876, had devoted considerable space to literary relations with the United States and came to the conclusion that "it is without doubt a general opinion that a copyright convention with the United States is most desirable."104 j In the course of their report, the Royal Commission commented on the obstacles as they saw them:

114

The favorable impression gained from these words must be balanced by another comment, especially since the treaty Lowell was negotiating was drafted by publishers. After the negotiations were over, Lowell remarked: I don't think much of any international copyright bill which is drawn by publishers—always in the interests of the manufacturers and not the makers of books. The clause you mention [the manufacturing clause] was no doubt meant for a sop to our protectionists. The British government has already expressed its indifference thereanent.102 Moreover, Lowell presented the treaty at a rather crucial time. Discussion of the Fenian troubles comprised the bulk of Anglom

Charles Eliot Norton (ed.), The Letters of James Russell Lowell (London: Osgood, Mclllvaine & Co., 1894), II, 456. i03 Ibid., II, 297. Lowell to Richard Watson Gilder, editor of Scribner's Monthly,

January 2, 1882.

115

We are satisfied that, though there are other obstacles, the most active opposition in the United States arises from the publishing interests. It is feared that if there were international copyright, British authors would be able to select their own mode of 'manufacturing books, and to choose their own publishersi and that they would in many cases have their books prjinted in this country, and perhaps prepared for sale, so as to avoid the expenses of printing them in America. Moreover, the American publisher fears the competition of the English publisher, because at the present time [1878] books cannot be as cheaply manufactured in t i e United States as in Great Britain; and, but for the protective tariff, there would no doubt be a great inducement to British publishers to compete with those of America in the large and important market of the United States.105 Despite their clear understanding of the situation and some vague remarks about the possibility of retaliation, the Commission concluded : On the whole, therefore, we are of opinion that an arrangement by which copyright owners could secure I0S Horace E . Scudder, James Russell liowell (Boston: Houghton, Mifflin & Co., 1901), pp. 259-321, on the mission to England and passim. 104 Sir Herbert Spencer, "Report of the Royal Commission on Home, Colonial and International Copyright," in Putnam, Question of Copyright, No. 244. * *»/&«*., No. 248.

116

The Movement After the Civil War to 1880

The Movement After the Civil War to 1880

United States copyright by reprinting and republishing their books in America, but without being put under the condition of reproducing the illustrations or re-manufacturing the stereotype plates there, would not be unsatisfactory for Your Majesty's subjects. . . .1-08

give their support to a practical and equitable measure which would, at least to a degree, safeguard their business interests and restore order to a chaotic trade. To a lesser degree the typographical unions had come to share the attitude of the publishers. Although it would take considerable time to work out the details in a manner satisfactory to all parties! concerned (especially the unions), the advocates of international copyright could feel that their goal was in sight.

The Harper treaty allowed the importation of stereo plates and electrotypes of illustrations, and insisted only that the work had to be bound and printed in the United States. Hence, when Lowell presented the treaty to Earl Granville, the way had already been prepared. Within a reasonably short time, in March 1881, Lord Granville informed Lowell that his government was in general agreement, but that the London publishers consulted opposed the manufacturing clause and were vehement in their dislike of the short time limit required for republication. The crux of the matter was the attitude of publishers, not the authors: both American and British authors had signified their approval of the Harper draft.107 Lord Granville ordered the British Minister in Washington, Sir Edward Thornton, to open negotiations on these points in the United States. The matter was brought to a standstill by the death of Garfield and resulting changes in the Department of State.10S While it may seem that the movement for international copyright had not progressed appreciably, nor advanced any further than it had before the Civil War, there were a few signs of real hope. The issue had actually reached the floor of Congress for the first time. The authors of both Great Britain and America had united on at least one proposal, and appeared to be more informed and interested than they had been, thanks largely to the efforts of Bowker. The constant publicity had brought the matter to the attention of more and more people. Most important of all, the cheap books had produced a material modification of opinion on the part of some American publishers who had previously opposed any copyright as inexpedient. These men were now ready to ** Ibid., No. 250. Harper, op. cit., p. 428, Bowker, op. cit., p. 354. 103 Both Bowker, op. cit., p. 355, and Fleming, op. 'cit., p. 170, give the death of the President as the reason negotiations ceased. 1OT

117

Final Efforts: 1880-1890 personal rights and of such national and international rights; to declare any violation of: such personal rights and such national and international; rights to be a species of crime: to classify such species of crime into degrees; to fix the punishment for each degree of crime, and for other purposes.2

CHAPTER V F I N A L EFFORTS: 1880-1890

The 1880's witnessed a continuation of the complicated struggle for revision of the federal copyright statutes, with the actual achievement of an international copyright law in sight at the very end of the decade. There were no attempts to secure protection by means of treaty or convention, and the advocates of revision concentrated their efforts on promoting Congressional action, which was, as usual, postponed again and again. Aside from a mildly interesting collection of petitions and bills which suffocated in committee, attention centered on the Dorsheuner Bill in the House of Representatives and the Hawley and Chace Bills in the Senate. After the decisive setback for revision represented by the Morrill Report of 1873, Congress did not seriously consider international copyright for the next nine years. Three inconspicuous petitions were presented late in 1880 and referred to the Committee on the Library, but no further trace of them can be" found. They were never printed, nor even discussed as far as can be ascertained, and are noteworthy only for the fact that the one presented to the House of Representatives came from Theodore Dwight Woolsey.1 Two bills, one introduced in 1882 and another the following year, are worthy of brief notice, though more as legislative curiosities than for any contribution to the cause of copyright. On March 27, 1882, William Erigena Robinson, Representative from New York, introduced a bill: to declare and define two species of personal rights of property in literary articles; to declare and define national rights and international rights, which the Government of the United States, for the people thereof, possess in literary articles; to provide for the protection of such 1

U . S. Congress, Journal of the House of Representatives, Cong. (1880), 36.

118

3d Sess., 46th

119

In order to carry out the many purposes of the bill, Robinson made provision for a United States Commissioner of Literature and an office of Literature, over which the Cooimissioner would preside at the generous salary of $5,000. The total amount of money which would have been appropriated to carry but the various provisions of the bill was a staggering $1,290,000!: The Robinson Bill was an international copyright proposal only indirectly, for he intended to codify all the ramifications of literary property, but one section stated: Any person of a foreign nation whose government grants, within its jurisdiction, to any and all citizens of the United States the same right > in literary articles which it grants to its own citizers, shall have in the United States the same rights in a literary article originally and lawfully made and conceived by such foreign person, as any citizen of the United States has in the United States. 3 | The bill was a nearly incomprehensible jmonstrosity which ran to seventy-three printed pages, and seems to have been regarded oddly (as was its author).* The House took no action on the Robinson proposal. Patrick Andrew Collins of Boston presented what was by now the eighth proposed bill for international copyright on December *Ibid„ 1st Sess., 47th Cong. (1881), 913. 3

Section 1 8 ( k ) . * Robinson had come to the United States from Ireland in 1836 and after graduation from the Yale Law School he entered upon a checkered political career. H e was a political changeling, sometime Whig, Republican and Democrat, but mostly independent. H e utilized his career chiefly in support of Ireland, and was regarded by his colleagues with disdain as an opportunist and demagogue. Cf. D.A.B., X V I , 57-58.

120

Final Efforts: 1880-1890

10, 1883.5 The Collins Bill would have granted protection to foreign authors by the relatively simple method of striking out of the domestic statutes all phrases which referred to citizens and residents of the United States, and substituting the word, "person." In view of later controversy, it is worth noting that the Collins proposal specifically allowed the importation of stereotype plates manufactured abroad,6 a liberal provision. But he had some odd details concerning the right of American publishers to reprint freely when American copyright was not secured within a year of original publication.7 The effort was as futile as was the whole career of Collins, for his bill never emerged, after having been referred for a refreshing change to the Committee on Patents. s The first serious effort of the decade was, like previous attempts, the outcome of the formation of another organization. March 30, 1883, the American (Authors) Copyright League came into existence, largely through the work of a group of well-known literary figures already united in the Authors Club.9 Chief credit for the foundation of the League belongs to Edward Eggleston and Richard Watson Gilder, both charter members of. the Authors Club, as well as to George Parsons Lathrop, then literary editor of the New York Star. Edward Eggleston had traveled as a Methodist circuit preacher and pastor of several churches in Indiana, but had given up the ministry for journalism in 1866. He came East in 1870, and worked on the New York Independent and Scribner's Monthly. At the time the League was formed, Eggleston was famous as the Hoosier novelist, and had already written at least one attack on piracy.10 He was to prove a valuable asset in the fight for international 5

U. S. Congress, Journal of the House of Representatives, 1st Sess., 48th Cong. (1883), 81. e Section II. "' Section 7. 8 Collins served three terms in the House, but he himself described his work as "futile." Cf. D.A.B., IV, 309. 8 The Authors Club was organi2ed in 1882 and included among its charter members Brander Matthews, E. C. Stedman, Charles de Kay and Noah Brooks. Andrew Carnegie was its "angel." 10 Edward Eggleston, "The Blessings o£ Piracy," Century Magazine, New Series I (1881-82), 942-945.

Final Efforts: 1886-ifyo

121

copyright when his abilities as a shrewd lobbyist and popular socialite were brought to bear on the Congressmen. Richard Watson Gilder was to be even more important to the cause. Gilder was then one of the nation's most important and most influential literary figures, and his home, "The Studio," was a popular center of intellectual life. Mrs. Gilder, an artist herself, established the custom of always being "at home" on Fridays, and for thirty years the literary, artistic and dramatic (and sometimes political) world of New York City could be found gathered at the Gilders' on Friday evenings.11 The first meeting of the Authors Club was held at The Studio, October^ 21, 1882, though the club soon found a most pleasant suite of rooms in the Carnegie Building on 57th Street.12 In 1883 Richard Gilder, having ; been assistant editor of Scribner's Monthly, was editor of its successor, The Century Magazine. H e enjoyed mild fame as a poet,- but it was the position of editor which gave him the opportunity to meet most of the literary men and women of his day. He was especially intimate with Brander Matthews, E. C. Stedman, Mark Twain and James Russell Lowell—all men who were interested in the struggle for copyright. Like so many well-to-do and successful literati of the day, Gilder was an ardent worker for social reform and civic betterment. The Reverend Henry Van Dyke eulogized him as a "militant meliorist," who was interested in the ethical and moral aspects of the causes he espoused. Van j Dyke even coined a word, "politethics," to express Gilder's interests.13 The American Copyright League was but one among a number of committees upon which Gilder served, for his interests ranged from the Free Kindergarten Association to the Tenement House Committee.14 Compared with later reformers, or the muckrakers, u Maria Hornor Lansdale, "Life-work and Homes of Richard Watson Gilder," Century Magazine, LXXXI (1910), 725. "Theodore F. Wolfe, Literary Haunts and Homes (Philadelphia: J. B. Lippincott Co., 1898), 63, 73 and 85. 13 Henry Van Dyke, "As a Moral Force in Politics," Century Magazine, LXXXX (1909), 637. 14 Brander Matthews, "Richard Watson Gilder," North American Review, 191 (1910), lists the various groups, pp. 44-45.

122

Final Efforts: 1880-1890

his rather stodgy and priggish approach must be considered very Victorian, but Gilder was in a position to do much for international copyright, and he more than lived up to his expectations. The fact that he was an intimate friend and fishing companion of President Cleveland did not hurt the cause,15 and his position as a leading New York Mugwump and friend of Richard Rogers Bowker made cooperation with the Publishers Copyright League extremely easy.16 Although it pained him somewhat and cost time and money, Gilder opened the pages of the Century Magazine to copyright enthusiasts and lobbied long and faithfully among the politicians. He did this in spite of the fact that he had, perhaps, less personal motive than anyone else: I am glad you think I like lobbying. The fact is, I think it is absolutely disgraceful that Congressmen should have to be hunted and chased around in order to get them to do their public duties. I believe I have no personal interest in the copyright matter, and I certainly should not devote so much time to anything personal. There are some things that make me at times ashamed of being an American, and the absence o£. copyright is one.17 Eggleston and Gilder were but two even among the very notable members of the American Copyright League, for it grew so rapidly that within a year the League claimed to represent the "entire guild" of American authors with membership between 600 and 700.18 Although the term "authors" is often used in the title to distinguish this league from the publishers' league, it must not be supposed that membership was limited to writers. The A.C.L. included clergymen, lawyers, editors, college presidents and faculty 15 Cleveland and Gilder vacationed together at Buzzards Bay, corresponded frequently and exchanged political opinions. Gilder wrote a life of Cleveland in 1910. Cf. Allan Nevins, Grover Cleveland (Boston: Houghton, Mifflin Co., 1933), 225, 265, 276 and 310. 18 The American Publishers Copyright League was founded in 1887. Cf. infra, Chapter VI. "Lansdale, op. cit.f p. 729. 13 Richard Watson Gilder, "Topics of the Times," Century Magazine, New Series VI (1884), 144, 315.

Final Efforts: 1880-1890

123

members of American Colleges and universities.19 All of these would play roles commensurate with their importance in the battle, and the League started to work at orice. They prevailed upon Representative William E. Dorsheimer of New York City to introduce a bill for international copyright, and he did so January 8, 1884. Dorsheimep was a Buffalo lawyer with a long career behind him in New York State politics, having served as Lieutenant Governor under Tilden and having been elected to Congress in 1882. He was a minor author in his own right, contributing articles frequently to the Atlantic Monthly, reviewing the works of copyright enthusiast James Parton, and writing in 1884 the campaign biography of his fellow townsman, Grover Cleveland.20 His bill was referred to the Committee on the Judiciary, among whose members were at least three friends of international copyright: Dorsheimer himself, John Randolph Tucker and Patrick A. Collins. The Dorsheimer bill comprised only seven short sections, a very brief three printed pages.21 Its bore was the provision that: Whenever any foreign country shall grant by law to citizens of the United States similar privileges, the President shall issue a proclamation to that effect, from the date of which the authors of such country shall be entitled to copyright in the United States.22 Protection was granted for a term of twenty-five years without renewal,23 or until the death of the authors.24 The Committee on the Judiciary unanimously reported the bill favorably on February 25. 26 It made a few minor amendments. The word "maps" had been stricken from the items eligible for 10

Ibid. *>D.A.B„ V, 387-388. j 21 The text was printed by Bowker in Publishers' Weekly, XXV (1884), 59. M Section 5. 28 Section 2. s * Section 3. 35 U. S. Congress, Journal of the House of Representatives, 1st Sess., 48th Cong. (1884), 504.

124

Final Efforts: 1880-1890

Final Efforts: 1880-1890

protection. At the request of George Parsons Lathrop, Secretary of the American Copyright League, the term of copyright had been extended to twenty-eight years with renewal for fourteen years, the terms of the domestic copyright law at that time.20 The Committee stated: There is no civilized country which does not in some form recognize the property which an author has in the creations of his intellect. The Committee think that the United States should grant this right of property to foreigners as well as to citizens. There can be no just discrimination based on the nationality of the person to whom the property rightfully belongs. The policy by which States refused rights of property to foreigners has long been reversed. In most, if not all of the States of the Union, foreigners are entitled to hold property, both real and personal, upon precisely the same terms as natives. It is manifest that the ancient discriminations grew out of ignorance and prejudice, and that the modern rule conduces to civilization, and to the peace of nations. It is believed that if the bill accompanying this., report is passed, American authors will receive great and valuable advantages. . . . The Committee earnestly recommend this measure to the House, in the full belief that its passage will work a high and enduring benefit to the people of the United States, and contribute to the civilization and enlightenment of the world.27 The House ordered the report to be printed and the bill to be placed on the House Calendar. The following Monday, Dorsheimer moved that the rules be suspended so as to enable him to propose the following resolution:

until finally disposed of, not, however, to take precedence of appropriation or revenue bills.28 A brief half-hour debate ensued. Chace (later to introduce his own successful bill in the Senate), who favored a protectionist form of international copyright, entered his objections to the present form of the proposal.29 Kelley of Pennsylvania said that the bill involved the interests of paper-makers, binders and printers who should have an opportunity to be (heard, and pleaded for a twoweek delay in discussion. The question was put to a vote which resulted in 156 yeas and 95 nays;, with 65 abstentions.30 Since two-thirds had not agreed to the rfiotion, the rules were not suspended and the resolution not agreed to. The Bill was then recommitted and died. Joseph Harper later remarked that the bill "with its magnificent send-off, failed by reason of the opposition of the protectionists."31 Gilder stated that the organized hostility came from the publishers of Pennsylvania and was "based on the theory that American industry would be hurt unless every foreign author were compelled to have his book set up, stereotyped, printed and bound in this country."82 Both Chace and Kelley were leading protectionists, and the House received petitions from Pennsylvania printers 83 and the Chicago Trade and Labor Assembly34 expressing hostility on the usual grounds. That the advocates of international copyright well understood the attitude of the protectionists ;ind tried to counter it can be seen from George Haven Putnam's comment later that year: It would be difficult for; protectionists to show logical grounds for their position; American authors are manu28

Resolved, That House Bill 2418, entitled "An Act granting copyrights to citizens of foreign countries," be made a special order for February 27, immediately after the morning hour, and continued from day to day thereafter M George Parson Lathrop, "Open Letter," Century Magazine, New Series VII (1884-1885), 315. 47 U. S. Congress, Reports of the Committee of the House of Representatives, 1st Sess., 48th Cong. (1884), I, No. 189.

125

Ibid., Journal of the House of Representatives, 609. Senator Chace's bill is noted on p. 136 and will be discussed in some detail in Chapter VI. 80 U. S. Congress, Journal of the Mouse of Representatives, 1st Sess., 48th Cong. (1884), 611. 81 Joseph Harper, The House of Harper (New York: Harper Brothers, 1912), p. 434. 33 Lathrop, op. cit., p. 315. 83 U. S. Congress, Journal of the House of Representatives, 1st Sess., 48th Cong. (1884), 884. M Ibid., 943, 29

126

Final Efforts: 1880-1890 facturers 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 . . . ought to be in sympathy. The contingency which 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 lesser 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 [italics his] of the book than for that of the author who created its essential substance.SG

That was precisely the case! And for some time the influence of the protectionists was strong enough to block any bill similar to Dorsheimer's. The Buffalo Congressman did succeed in persuading the House to agree to a new printing of his bill on April 16, and it retained its dormant position on the House Calendar, but no action was taken before the session adjourned. At the beginning of the Second Semester, Congress heard brief mention of international copyright in the President's message of December 1, 1884. President Arthur noted: The question of securing to authors, composers and artists copyright privileges in this country in return for reciprocal rights abroad is one that may justly challenge your attention. It is true that conventions will be necessary for fully accomplishing this result, but until Congress shall by statute fix the extent to which foreign holders of copyright shall be here privileged, it has been deemed inadvisable to negotiate such conventions.36 Congress did not take up the challenge. One lonely petition in favor of international copyright was received. On December 8 a 83

George Haven Putnam, "International Copyright," in Edmund C. Stedman and Ellen Hutchinson (eds.), A Library of American Literature (New York: William Evarts Benjamin, 1894), X, 305. 80 U. S. Congress, Journal of the Senate, 2d Sess., 48th Cong.

Final Efforts: 1880-1890

.127

memorial with 1,420 signatures pleading the passage of the Dorsheimer bill, or one similar to it, came from the Music Teachers' National Association.37 John Spooner presented it to the House, and ten days later Senator Aldrich presented the identical text to the Senate.88 The House referred its topy to the Committee on the Judiciary; the Senate preferred thi; Committee on Patents. Nither petition was printed or received any real consideration. As late as February 19, 1885, the House received petitions in favor of the Dorsheimer Bill,39 though by then any likelihood that it would be revived had disappeared. ! A similar fate, except for a courtesy printing, befell a bill introduced by Representative William English of Indiana. His bill dealt solely with dramatic compositions, and provided that citizens of such foreign nations as should grant ;like privileges to citizens of the United States should have the sole right to reprint or perform their dramatic works in America. Protection was granted for the usual term of twenty-eight years with renewal for an additional fourteen years, and foreign authors were obliged to conform to the ordinary entry regulations of the domestic law.40 Nothing has yet been said here of t h ; influence which lack of international copyright had upon the drama in America, yet the situation of the theatre parallels almost exactly the situation of prose, and may even be said to have been worse. The history of drama in the United States before the present century is a bleak tale. Very few American plays were published, and of those which at one time existed in manuscript form exceptionally few managed to survive. There are long periods; that now can be studied only, if at all, in the files of old newspapers, since most popular plays of the nineteenth century are known to us only as titles.41 The earliest play written by a native of this country was Ben31

Ibid., Journal of the House of Representatives, 45. Ibid., Journal of the Senate, 77. 89 The last petition for the Dorsheimer bill came on February 15, 1885, from the Boston Handel and Haydn Society. *° U. S. Congress, Journal of the House of Representatives, 2d Sess., 48th Cong. (1885), 164 ft. 41 Barrett H. Clark and George Freedley (eds.), A History of Modern Drama (New York: D. Appleton-Century Co., 1947), p. 641. 03

128

jamin Colman's Gustavus Vasa of 1690 ;42 and the first printed play did not appear till Governor Robert Hunter of New York composed Androborus in 1714, and that was never produced. Not till May 23, 1761, was a play printed and acted in America.43 The colonial drama suffered from the same restrictions which hampered all of the arts in the eighteenth century, and the above mentioned and other early efforts are chiefly literary curiosities which had little, if any, bearing on the development of native American drama.44 In fact, up to the time of Edwin Forrest (1806-1872), America had no dramatic literature. The nineteenth century was the golden age of American literature in every form except the dramatic form; not till approximately 1830 could it even be said that the United States had any national drama at all. Early theatre managers looked almost exclusively to London for plays, and found it more than convenient to ignore the question of author's royalties in the absence of international copyright. The first part of the nineteenth century was: . . . a period which respected his [the manager's] pleasures. It gave him little trouble other than to attend to his treasury. Both his system and his actors were imported from England and the one, for some years, worked as well as the other. The modern rage for novelties had not as yet set in. The drama itself was a novelty, which proved quite sufficient. The manager was not forced to hunt for new plays; Shakespeare, O'Keefe, Goldsmith, Farquhar and Cumberland were the staple attractions. The plays were much the same from season to season, and four or five new titles were enough to satisfy the audience.45 The best English plays by the most popular authors were printed and could be purchased for a few pence. Accustomed to 42

Final Efforts: 1880-1890

Final Efforts: 1880-1890

Arthur Hornblow, A History of the Theatre in America (Philadelphia: J. B. Lippincott Co., 1919), I, 51. "Ibid., 52. "Ibid., 54. a Barnard Hewitt, Theatre U. S. A. (New York: McGraw-Hill Book Co., 1959), p. 45.

129

get these for nothing, it is hardly surprising that producers looked with disdain upon unknown American dramatists. And if they did perchance favor one or the other, a suggestion that payment should be made was deemed preposterous. A sturdy little business was built upon this concept. It is doubtful if any of our early dramatists received any compensation for their plays.46 The earliest date at which it became customary to pay stipulated sums to the author cannot be ascertained with certainty, but 1850 would be a safe approximation, and up to the 1880 s the average author took whatever he could get.47 If a charitable manager condescended to allow the practice, an author might be awarded the proceeds of a benefit performance.48 There was little incentive for an American author to write for his own stage. Prejudice against the native-American play in the first half of the nineteenth century was almost insurmountable, so much so that the authors were known to put out plays under pseudonyms and to represent themselves as "English" dramatists.49 The work of native authors, and reside it foreigners as well, was almost wholly imitative; their drama was scarcely original in any sense, being so dependent upon Europe that there existed nothing that could be identified as a body of distinctively American drama in form or idea.60 Throughout the first quarter of the nineteenth century there were only four important centers of dramatic production in the nation, viz., Philadelphia, New York, Boston and Charleston, though a number of secondary centers, such as Baltimore, Washington, and Richmond cannot be ignored. As leadership in the field of publishing gradually passed to; New York, so also did leadership in the drama pass from Philadelphia to New York somewhere around 1825. Soon the theatre was run on principles more and more commercial in nature. Managers astutely watched the foreign market, and produced sure foreign successes. Not w

Hornblow, op. cit., I, 58. "Ibid., 70, 72. *" Ibid., 58. It was customary to give the author the proceeds of the third night, if he was allowed a benefit. "Ibid., 58-59. w Clark, op. cit, p. 640.

130

Final Efforts: 1880-1890

only were the major plays European piracies, but nearly all the actors, as well were obtained from England and France. 61 The professional theatre, except for the French, did not go west of the Alleghenies till the second decade of the century, and it grew very slowly in the West till after the Civil War. The period 1850-1870 was the age of expansion for theatre in America. Improvement in transportation, particularly the extension of the railroad, resulted in a measure of decentralization of the theatre, though New York was still the center with its grand total of six legitimate theatres.52 Local centers sprang up in Providence, St. Louis, New Orleans (which already had a flourishing French theatre), Chicago, Salt Lake City and San Francisco, which last city remained the professional drama center in the West throughout the century.58 The touring company, afterwards so familiar, did not exist before 1860, and only began to make itself felt in the late 1870's and 1880's when about fifty troupes could be found in the United States.54 The American theatre came of age in the last quarter of the nineteenth century, and only then did we have an American dramatist, Bronson Howard (1842-1908), who made his profession dignified and profitable. Bronson scored his first success with a comedy, Saratoga, in 1870, and real triumph came for him in 1887 when The Henrietta grossed $500,000 on its first run and brought him a fortune in royalties.65 Playwriting can be said to have become really a lucrative profession only after Bronson made $100,000 in the year 1889.S6 Before that piracy flourished. Even domestic copyright for dramatic compositions lagged. The first domestic statute was not passed till August 16, 1856, and that merely gave sole right of

Final Efforts: 1880-^890

representation to citizens, and resident authors.57 There was no protection whatsoever for foreign plays or adaptations for the stage of foreign novels and poems. Adaptation was a very popular device. Most of Scott was dramatized somewhere in the South, and eventually every novel of Dickens appeared on the American stage, after having been hastily adapt sd by some "resident" playright.58 The pattern of piracy can be illustrated through the publication history of East Lynne. Mrs. Henry Wood, a semi-invalid Englishwoman, wrote East Lynne as a serial for the London New Monthly Magazine, and then issued it as a three-volume novel in 1861. Late that same year, Dick & Fitzgerald of New York City published a pirated paperback version selling at 75 cents. This, and many subsequent editions, enjoyed fantastic success; the work became a favorite of the cheap book publishers. Its melodrama was suited perfectly for the stage, and it was not long before various adaptations of East Lynne had become a stand-by of every theatrical troupe. It was performed at least once a week in some opera house or tents all across America, and was enjoyed equally by eastern sophisticates and California miners.59 Mrs. Wood, of course, received no pecuniary recompense, though the adaptations went on till as late as 1930 when a movie version was issued.60 A similar pattern could be traced ftpr the works of many other foreign authors. While the elite audiences were delighted with refined performances of Shakespeare, Scott or Dickens, a different sort of throng, perhaps down in the Bowery, enjoyed "blood and thunder" piracies of Byron or the British blonde "burlesques" giving a parody of some classic.61 Lack of copyright helped to OT

61

Glen Hughes, A History of the American Theatre (New York: Samuel French, 1951), p. 90, and William P. Trent et al. (eds.), The Cambridge History of American Literature (Cambridge: The University Press, 191721), III, 280. 68 Ibid., 169, 173. "Ibid., 206. 54 Ibid., 207. tK Ibtd.J2&5. M Hewitt, op. cit.} p. 256.

131

II Stat, at Large 138 (1856). ^Hewitt, op. cit., p. 103, and James p . Hart, The Popular Book (NewYork: Oxford University Press, 1950), !p. 75. In one decade, 1820-30, seven of Scott's novels were dramatized in a single city, New Orleans. 60 M. Wilson Disher, Melodrama (London: Rockcliff, 1954), p. 30. TO Disher traces the whole process, p. 30 ff. The provenance could become rather complicated. The play Miss Moulton (1876) was an adaptation of a French adaptation of Bast Lynne. Cf. Cambridge History of American Literature, III, 271. • "* Hewitt, op. cit, p. 116.

132

Final Efforts: 1880-1890

make all these possible, and no one knows how much this held back or perverted the course of development of an American theatre and American dramatic composition. Something might have been done in 1885 if Congress had considered the English Bill, but it never reached the floor, and the situation remained unchanged. More important than all the foregoing events was the introduction of one of the two bills around which the major controversy of the next two decades would center. On January 6, 1885, Senator Joseph Hawley of Connecticut introduced S2498, a bill to establish an international copyright.62 The American Copyright League had turned to the Senate and prevailed upon Hawley to present a bill substantially the same as the defunct Dorsheimer Bill. By 1885 the League was active under new officers. James Russell Lowell had accepted the office of President, and E. C. Stedman had been chosen Vice President. An executive committee, consisting of Chairman Edward Eggleston, George Walton Greene and Robert Underwood Johnson, had been placed in charge of work for revision. The text of the Hawley Bill was as follows: Be it enacted, . . . I. The citizens of foreign States and countries, of which the laws, treaties, or conventions confer or shall hereafter confer upon citizens of the United States rights or copyright equal to those accorded to their own citizens, shall have in the United States rights of copyright equal to those enjoyed by citizens of the United States. II. This act shall not apply to any book or other subject of copyright published before the date hereof. III. The laws now in force in regard to copyright shall be applicable to the copyright hereby created, except in so far as the said laws are hereinafter amended or repealed. IV. Section 4971 of the Revised Statutes of the United States is hereby repealed. Section 4954 is amended by striking out the words "and a citizen of the United States or resident therein." Section 4967 is amended by striking out the words "if such author or proprietor is a citizen of the United States or resident therein." 83

U. S. Congress, Journal of the Senate, 1st Sess., 49th Cong. (1885), 55.

Final Efforts: 1880-18.90

133

V. The proclamation of the President of the United States that such equality of rights j exists in any country shall be conclusive proof of such equality.63 The Hawley Bill was a relatively simple measure compared to some of the more complicated and lengthy schemes previously submitted to Congress. In essence, the bill proposed to allow foreigners to take American copyright on the same basis as American citizens, provided the nation of the foreigner per aiitted copyright to American citizens on substantially the same basis as to its own citizens. There is a minimum of formalities. The term of protection would have been the term of the domestic statute, which was for a period of twenty-eight years with the option of renewal for another fourteen years. This arrangement was probably considered fair enough, but in the light of the period of protection allowed by other nations cannot be considered generous. The session adjourned before any action could be taken on this bill, but Senator Hawley introduced it a^ain on December 8, 1885, and John Randolph Tucker of Virginia introduced the identical measure in the House on January 6, U586.6* The same day Congress heard President Cleveland state: An international copyright conference was held at Berne in September on the invitation of the Swiss government. The envoy of the United States attended as a delegate, but refrained from cominitting this Government to the result, even by signing the recommendatory protocol adopted. The interesting and important subject of international copyright has been before you for several years. Action is certainly desirable to effect the object in view. And while there may be question as to the relative advantage of treating it by legislation or by specific treaty, the matured views of the Berne Conference can not fail to aid your consideration of the subject.66 The origin of the Berne Convention mentioned by the President ™Ibid., 56. U. S. Congress, Journal of the House of Representatives, 1st Sess., 49th Cong. (1886), 270. *Journal of the Senate, 1st Sess., 49th Cong. (1886), 17. 84

134

Final Efforts: 1880-1890

Final Efforts: 1880-1890

can be traced to a decree of Napoleon III promulgated on March 28, 1852;: A landmark in the history of international copyright, the decree provided that piracy of a foreign work in France would henceforth be a crime punishable by law. The motive for the decree was the desire of the French government to secure better cooperation from other nations in the protection granted to their authors who were being widely pirated in Belgium and Holland. In this it was successful. Out of the discussion evoked by Napoleon's decree came a Congress of Authors and Artists, held in Brussels in 1858, and attended by hundreds of authors, artists, journalists, economists, university delegates and representatives of literary societies. Similar congresses were held in Antwerp (1861 and 1867). The Congresses provoked discussion and published resolutions which influenced the future development of the rights of the author from an international point of view, and led to further meetings. Among the many congresses held in Paris during the Universal Exposition. of, 1878 were an International Artistic Congress and an International Literary Congress presided over by Victor Hugo. The Literary Congress created an International Association, which exists today, with the announced object of the defense of the principles of intellectual property in all countries. The Association called a conference at Berne, Switzerland, for September 10, 1883. There the conference prepared a draft of an international copyright union, which the Swiss government communicated to other nations during 1883. The Swiss government, which had been unofficially participating in this conference also issued an invitation to all interested nations for an official conference. The United States did not send a delegate:to this first conference, giving as its reasons: The difference of tariffs and the fact that besides the author and artist several industries are interested in the production or reproduction of a work of art, must be taken into consideration when it is proposed to grant to the author of a work the right to reproduce it or to prohibit its reproduction in all the countries. There is a difference between a painter or sculptor whose work goes into commerce as it came from his hands, and the

-

135

literary author to whose work the paper manufacturers, the print maker, the printer, the binder and many other persons contribute.66 The discussions at the conference revealed that there existed considerable differences among the delegates over the problem of reconciling those who wished to give1 the broadest possible protection to authors with those who objected to any provisions which were not in conformity with tr eir own national laws. A compromise draft of twenty-one artic es was finally developed, and the Swiss government transmitted this to the various governments for study. A second conference met September! 27, 1885, with a delegate from the United States present ad audiendam, and it was to this meeting that Cleveland referred. After isix sessions and much informal discussion, the delegates approved a new draft, which was signed by the representatives of jtwelve nations and again transmitted by the Swiss government to other governments. Fiftyfive nations were invited to sign. The final protocol was signed by Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunis on September 8, 1886. France, Great Britain and Spain specifically included their colonies and possessions under their signatures, which then meant that a large part of the civilized world had adhered to the convention. Ratifications were exchanged September 5, 1887, and the Berne Convention went into effect on December 5, 1887. The fundamental principle of the Berne Convention was national treatment. Parties entitled to the benefits of the Convention were to enjoy in each country all the advantages accorded by the laws of the signatory nation to its own citizens. The duration of copyright protection was subject to the limitation that it could not exceed the duration allowed by; the country of origin of the author, and the formalities required! for protection were to be the same as those prescribed by the country of origin. The Convention also covered translations, newspapers, periodicals, drama, adaptations and indirect appropriations. An International Bureau was M

Stephen P. Ladas, The International Protection of Literary and Artistic Property (New York: Macmillan Co., 1938), I, 77.

136

Final Efforts: i88o-i8$>p

Final Efforts: 1880-1890

created, and provision was made for financing its operations on a Pro rata basis. The Berne Convention was a remarkable achievement, a great step forward in the direction of international protection for authors and artists. The Union was an "open convention," and other nations gradually acceded to it. The United States did not accede. Gilder did not neglect to point this out in the pages of his magazine: Another reason for prompt action lies in the fact that during the past year the rest of the civilized world has put the seal of shame upon us anew by uniting, at the Berne Copyright Conference, in an international arrangement which is at once the most definite recognition and complete protection of literary property in existence. From this honorable compact the United States Government alone [sic] has excluded itself.67 Congress did, however, proceed to consider the Hawley Bill. On motion of Senator Hoar, December 14, the Committee on the Judiciary was discharged from consideration of the bill, which was then referred to the Committee on Patents. The committee was authorized to hold public hearing and to take testimony.6^ Before hearings could be arranged, a second bill on international copyright was introduced. January 21, Senator Chace presented S1178, a bill to amend Title XL, Chapter III of the Revised Statutes.69 The Chace Bill was quite different from the Hawley Bill, which was based upon a simple reciprocity or the "national treatment" principle as employed in the Berne Convention. The Hawley Bill was rather brief, and did not require a great deal in the way of formalities in order to obtain protection. The Chace Bill, much amended, was the one which would eventually be passed by Congress ; consideration of it in great detail is postponed till the following chapter. It should suffice here merely to note a few major provisions.70

The core of the Chace Bill was its i provision for American manufacture, linked with the prohibition of the importation of any other editions than the one under manufacture here. The bill exemplified, of course, a protectionist approach to the problem of granting some form of international copyright while safeguarding the commercial interests of American industry. The bill also provided that copyright would automatically lapse whenever the American publisher abandoned publication. The Committee on Patents, under the chairmanship of Senator Thomas Piatt of New York, held public hearings on the Hawley and Chace Bills January 28 and 29, February 12 and March 11, 1886. The Senators listened to testimony which presented all possible aspects and sides of the issue—for the bills, for one or the other, against one or the other or both, and some against any form of international copyright. The hearings resembled nothing so much as a full-dress rehearsal for the final battle three years later. The testimony was printed as parti of the Committee's Report, and published as a pamphlet by tbi friends of international copyright. An analysis of the contents of the Report in outline form may facilitate an understanding of the nature of the hearings.

R E P O R T NO. 11&8 O F T H E COMMITTEE OfrjT P A T E N T S Page i-vni

1-2 3-4 4-6 6-8 8-14 14-15 15-17 17-20 20-21 21-27

OT

Richard W. Gilder, "Topics of the Time," Century Magazine, New Series XI (1886-87), 490. ^ U . S. Congress, Journal of the Senate, 1st Sess., 49th Cong. (1885), 80, and 169. m Ibid„ 196. TO The text of the original bill was printed in Publishers' Weekly, XXIX, 232.

137

1

Content Text of Title XL, Chapter III of the Revised Statutes and of thjj bill to amend sections of these statutes, j Texts of both Hawley and Chace Bills. Statement of Dr. Howard Crosby. Statement of Senator Hawley. Statement of A. G. Sedgwick Statement of Henry Holt. Statement of George :W. Greene. Statement of Samuel Clemens. Statement of George T. Curtis. Statement of William Henry Browne Statement of Horace Scudder.1

The above testimony was presented January 28, 1886.

138

Final Efforts: 27-28 28-33 33-44 44-53 53-58 58-60 60-68 68-73 74-86 86-90 90-111 111-115 115-120 120-130 130-131 131-132 132 132-133

1880-1890

Statement of J a m e s Lowndes. Statement of Gardiner H u b b a r d . Statement of J a m e s Russell Lowell. Statement of the Philadelphia Typographical Union presented by J a m e s Welsh. Statement of D a n a Estes. Statement of Richard Rogers Bowker. 2 A brief presented by the American Copyright League. Statement of H e n r y C. Lea. Statement of Roger Sherman. A n o t h e r statement of Dana Estes. Statement of Josiah R. Sypher. A paper submitted by Richard R. Bowker. Statement of H e n r y Carey Baird. 3 Statement of Ainsworth R. Spofford. Statement of George Haven P u t n a m Statement of H a r p e r Brothers. Statement of John W . Lovell Co. Statement of George Munro. 4

2

The above six statements were presented on January 29, 1886. 3 The above seven statements were presented on February 12, 1886. *The last statements were presented on March 11, 1886. <: T h e American Copyright League appeared to support the Hawley Bill through a committee composed of D r . H o w a r d Crosby, 71 A r t h u r Sedgwick, 72 and George W . Greene. 7 3 They were supported by a number of the leading publishers, e.g., George n Dr. Howard Crosby is an example of the support given to international copyright by noted clergymen, who were enlisted in the cause by the League. He was a Presbyterian minister, long a Professor of Greek at Rutgers, and a prolific author on religious and Biblical topics. From 1863 on Crosby served as pastor of New York's First Avenue Presbyterian Church, which was hardly known by any other name than that of Dr. Crosby's Church." He, too, was another champion of numerous reforms, among which copyright was but one. Cf. D.A.B., IV, 567-568 and his eulogy in Publishers' Weekly, XXXIX (1891), 513. 72 Arthur George Sedgwick was a well-known lawyer, co-editor with Holmes of the American Law Review. For a long time he had been assistant managing editor of the New York Evening Post, and in 1886 was assistant editor of The Nation. Cf. D.A.B., XVI, 546-547. 13 George Walton Greene was the least important member of the committee, a New York City lawyer, and minor author.

Final Efforts:

1880,-1890

139

H a v e n P u t n a m , H a r p e r Brothers,! H e n r y Holt, Dana Estes, George T . Curtis and Richard R. Bowker, who either appeared in person or sent statements to be rpad into the record. Probably the most impressive among the publishers was Richard Rogers Bowker, w h o attended all four of thfe hearings. Bowker presented a memorial from 145 leading American authors to the effect t h a t : T h e undersigned American citizens who earn their living in whole or in part by their pen, and who are put at disadvantage in their own country by the publication of foreign books without payment to the author, so that American books are undersold in the American market, urge the passage by Congress of an International Copyright Law, which will protect the rights of authors, and will enable American writers to ask from foreign nations the justice we shall then no longer deny on our own part. 7 * Bowker presented the document in an impressive facsimile form, which must have made an impression) on the Senators. Besides the usual signatures which one would have expected, e.g., Bowker, Gilder, P u t n a m , Lowell, Parton, Egl^leston, etc., the list of subscribers read like a W h o ' s W h o of contemporary American literature. Just a few of the names arej listed h e r e : Louisa May Alcott Thomas Bailey Aldrich H u b e r t H . Bancroft H e n r y W a r d Beecher M a r k Twain George William Curtis Washington Gladden H e n r y George

Walt Whitman Joel Chandler H a r r i s Bret H a r t e Oliver Wendell Holmes H e n r y Cabot Lodge Francis P a r k m a n John Greenleaf Whittier Moses Coit Tyler

Oddly enough, the petition had 3. petition appended to it, which read as follows: T h e undersigned, an American citizen, urges the passage by Congress of an International Copyright Law, ™ The facsimile is reproduced in Richard R. Bowker, Copyright, Its Law and Literature (New York: R. R. Bowker, 1886), p. 59 ff.

140

Final Efforts: 1886-1890 which will protect the rights of authors and will enable American writers to ask the same act of justice from foreign nations. [signed] George Bancroft

The Chace Bill received support from Henry C. Lea and Joseph Welsh, the representative of the Philadelphia Typographical Union. Gardiner H. Hubbard and Henry Carey Baird represented the opponents of international copyright in any form. The Librarian of Congress, Ainsworth Spofford, and a noted copyright law expert, Josiah Sypher, might be considered to have been neutral as far as any specific bill was concerned, but both were obviously in favor of some measure for international copyright. Congress had experienced the presence of businessmen at committee hearings often enough not to be overly impressed by the publishers who came to speak for or against copyright. But the Senators seem to have been impressed by the presence of James Russell Lowell, and, to a lesser extent, by that of Samuel Qemens. Mark Twain had been plagued by constant piracy of his popular works. Much of his business correspondence is filled with complaints about the situation and plans to avoid further trouble.75 Once, while rather ill, he had to make a special trip to Canada in order to secure copyright for The Prince and the Pauper. There he made a public statement, which he repeated to the Senate Committee later, to be rewarded with laughter. He said he hoped "a day would come when, in the eyes of the law, literary property will be as sacred as whiskey, or any other of the necessities of life."76 On this occasion, Clemens did come to Washington to testify for international copyright, but, as can be seen from the outline, his statement was quite brief. He probably had greater influence through more unofficial contacts with the Congressmen, for with 75

Samuel C. Webster, Mark Twain, Business Man (Boston: Little, Brown & Co., 1946), pp. 263, 269, 306, 315 and passim. Webster was Clemens' nephew and publisher. 70 /&«*., p. 176.

Final Efforts: i88o-i8pb

141

the connivance of S. S. Cox he was allowed on the floor and there lobbied personally for copyright.77 The highlight of the hearings definitely was the appearance of James Russell Lowell, January 29th. Lowell, a veteran of almost the entire struggle since the 1840's, appeared as one of the patriarchs of American literature, and was reported to have charmed the committee with his "tact, good nature, ready wit and hurtling sarcasm."78 The poet concentrated more on the moral aspects of the issue than on commercial interests or political expediency. The core of his testimony, which followed the| anti-copyright strictures of Hubbard with telling effect, was the statement: I myself take the moral view of the question. I believe this is a simple question of morality and justice; that many of the arguments which Mr.; Hubbard used are arguments which might be used for picking a man's pocket. One could live a great deal cheaper, undoubtedly, if he could supply himself from other people without labor or cost. But at the same time—well, it was not called honest when I was young, and that is all I can say and if I were asked what book is better than a cheap book, I Should answer that there is one book better than a cheap book, and that is a book honestly come by.79 The last phrase was, of course, an excellent epigram, and the advocates of copyright saw to it that it was often repeated. Lowell was of immense value to the cause because of his marked facility in coming up with such gems. A few days after he had testified, Lowell came to Gilder's office and there dashed off his famous quatrain on international copyright. Gilder immediately printed it in facsimile80 and the Committee on Patents reproduced it in their report. It runs thusly: In vain we call old notions fudge And bend our conscience to our dealing; The Ten Commandments: will not budge, And stealing will continue stealing. "Albert Bigelow Paine, Mark Twain (New York: Harper Brothers, 1912), IV, 1341. ra

"Topics ot the Time," Century Magazine, New Series X (1886), 161. Ibid., 162. 60 Century Magazine, New Series IX (1885-1886), 627. TO

142

Final Efforts: 1880-1890

The testimony of the friends of international copyright contained nothing particularly new or startling, but was a mature and logical presentation of the same arguments which they had been using for fifty years. As one can see from the outline guide, most of the statements were relatively brief, except for the printed essay submitted by the American Copyright League, which was incorporated into the report without being given orally. The most lengthy and most important observations were those made on the last day of the hearings, March 11, by the Librarian of Congress. After summing up all the presumed effects of an international copyright bill upon every party likely to be affected by whatever type of measure Congress should pass, Spofford concluded: Finally, Mr. Chairman, there can be no higher aim in statesmanship than the endeavor to establish justice; for justice is the highest interest of all men. The authors appeal for what they deem a right long denied. Either we must hold that authorship is the only form of human labor that shall go unpaid, or we must grant a copyright that shall be paid pro rata by all who use an.author's works. . . . If, as has been said, the policy of nations is enlightened selfishness, and the aim of the legislators not justice, but expediency, the question recurs, is it expedient to foster a brood of merely cheap and common literature, at the expense of the great masters of English and American thought and speech ? The book manufacturing interests have enjoyed, for nearly a century, production in every form; the bookwriting interests now ask you to consider their appeal for some measure of protection,—an appeal seconded by the majority of publishers and by the almost unanimous voice of the American press. By simple extension of the area of copyright, already granted by all the leading nations except our own, it is plain that the present worth of that copyright to authors will be enhanced. If it is true that the chief glory of a nation is its literature, whatever Congress can do to promote and elevate that literature should be done. Beyond question, the just thing will be found in the long run to be the expedient thing, and the fact that we cannot do perfect justice should not deter us from doing as much justice as we may.81 81

Reports of the Committee of the Senate of the United States, 1st Sess., 49th Cong., VII, No. 1188, pp. 129-130.

Final Efforts: 1880-1896,

143

The witnesses who spoke in favor of the Chace Bill, Lea and Welsh, confined their testimony generally jto familiar protectionist arguments. They were opposed to the Hawley Bill, but not necessarily to international copyright as such,! for they merely wished to have it limited in such a way as to protect the commercial interests of the parties to book manufacture. It was obvious that once some form of a "manufacturing claus;" were conceded, these gentlemen cared little about the other details of any copyright measure. The only two witnesses who were against international copyright as such and in any form were Hubbard and Baird. The presence of Gardiner Hubbard is difficult to explain. His name had not arisen in connection with copyright before this time, and he does not seem to have taken any further interest. He is better known in history for his work as a pioneer organizer of the Bell Telephone system, and not for any literary or manufacturing interest. Still, he gave a lengthy diatribe against the very concept of international copyright. It is impossible to determine what effect his speech had on the committee, but it se;ms likely that Lowell, who followed him, effectively dissipated the force of his statement. The presence of Henry Carey Baird is understandable. He will be remembered as the leader of the Philadelphia publishers, protectionists and pirates, whom he had called together in 1872 to fight the Cox bill. He repeated the principles he had then espoused: 1. That thought, unless expressed, is the property of the thinker; when it is given to the world, it is, as light, free to all. 2. As property, it can only demand the protection of the municipal law of the country \6 which the thinker is subject. 3. The author, of any country, by becoming a citizen of this country, and assuming and performing the duties thereof, can have the same protection that an American author has. 4. The trading of privileges to foreign authors for privileges to be granted to American authors is not just, because the interests of others than themselves may be sacrificed thereby. 5. Because the good of the people and the safety of

144

Final Efforts:

i88o-i8po

republican institutions demand that books shall not be made costly for the multitude by giving the power t o foreign authors t o fix their price here as well as abroad. 8 1 ' H i s testimony was couched in the language of the protectionists, and calculated to appeal to Congressmen w h o inclined to the principles of protection. While the hearings were being held, both opponents and advocates of copyright revision were conducting a vigorous campaign to influence Congress and public opinion. Between January 22 and March 27, roughly the period of the hearings, Congress received a deluge of petitions opposing international copyright. They came from all over the country—Connecticut, Pennsylvania, Illinois, Iowa, Wisconsin and Oregon—and most of them were from local unions or trade groups. 8 2 Memorials descended upon Senate and H o u s e at the rate of one every few days. Only one petition in favor of an international copyright law was received, and that from the not very influential Music Teachers Association. 8 3 American composers were in a situation not very different from that of American authors and dramatists. Century Magazine sent a circular to a number of leading musicians, asking for their opinions on international copyright. Twenty-one answers favorable to the proposal w e r e received, and Gilder printed them in 1886. T h e reply of Julius Eichberg is brief, but t o the point, and may serve as an excellent summary of the position of American composers in the absence of international copyright: T h e absence of an international copyright law is working directly t o the grave injury of our native composers. S o long as American music publishers can reprint the ^"•Reports of the Committee of the Senate of the United States, 1st Sess., 49th Cong. VII, No. 1188, pp. 115-120, from which the five basic principles of the Philadelphia publishers have been deduced. 83 U. S. Congress, Journal of the House of Representatives, 1st Sess., 49th Cong., 441, 447, 456, 501, 638, 720, 905, 906, 993, and Journal of the Senate, 1st Sess., 49th Cong., 199, 210, 217, 233, 282, 318, 328, 455, 462, and 485. ^Ibid., 210.

Final Efforts:

I88O-I8$O

most successful foreign compositions, without paying a farthing of royalty to their authors, so long will they prefer doing so instead of printing! American works of possible equal merit. A n International Copyright L a w will encourage our composers by giving them a chance to see their scores printed—The ab'sence of such a law benefits solely our music publishers :l its enactment would remove one of the chief obstacles to our eventually taking rank as a musical nation. 8 4

145

;

Century Magazine, like Publishers' Weekly, also sent a questionnaire on copyright to the leading Authors of the nation. It printed forty-one favorable replies during the month of February 1886. ss A m o n g those who praised the idea and pleaded in public print for the passage of a law were Lyman Abbott, Thomas Bailey Aldrich, Frances Hodgson Burnett, George Washington Cable, Frederick Douglass, Charles Dudley W a r n e r , and many others who signed Bowker's petition. I n t!he light of later developments, it is worthy noting that among those questioned were a number of university presidents, and favorable replies were received from Noah Porter of Yale, F . A. P . Barnard of Columbia, and David Coit Gilman of Johns Hopkins, D u r i n g this period the Publishers' Weekly devoted a great deal of space to the cause so dear to its editor's heart. Throughout the final years of the struggle the Publishers' Weekly gave more space to discussion of copyright than all the foreign trade journals combined, and much more than any literacy journal in the United States or abroad. 8 6 A n average of a n jarticle a week for the issues of the 1880's was not unusual. 8 ^ Bdwker was determined to keep copyright before the trade, and |do |his best to persuade all interested parties to support or accept the cause. H e reprinted articles from papers and other magazines', published the texts of M "Open Letters," Century Magazine, New Series XI (1886), 969. *Ibid., IX (1885-1886), 627-634. ^Madeline B. Stern, "The First Half-century of Publishers' Weekly," Publishers' Weekly, 151 (1947), 302. 87 Thorvald Solberg, "A Bibliography of Literary Property," in Richard R. Bowker, Copyright, Its Law and Its Literature (New York: Publishers' Weekly, 1886), pp. 34-39.

146

Final Efforts: 1880-1890

Final Efforts: 1880-1890

bills and petitions, opened the pages of his magazines to friends (and in all justice it must be said, to enemies) of copyright so that their opinions could find an outlet in print, and generally did all in his power to promote his project. Bowker also compiled a campaign handbook for the cause, Copyright, Its Law and Literature, which the Weekly published first in its own pages and then in book form in February 1886. He stated his purpose was to "give in brief and simple shape a comprehensive view—such as did not exist, despite an evident need—of the principles, history and present law of copyright."83 The treatise is brief (115 pages), but an excellent summary with a valuable fifty-page bibliography of the literature on copyright to that date. In spite of these and other efforts on the part of the advocates of revision, on May 21 Senator Chace reported adversely on his own bill.89 But along with the adverse report the Senator presented a new and amended version of his original text, which he felt would meet the objections and fulfill the desires of the parties represented at the hearings or by petitions.90 Chace Bill II was a similar, but simplified, version of Chace Bill I. The clause demanding that copyright be considered void in case the American publisher abandoned publication was missing. The time for registration had been shortened to the day of publication, a gesture which meant the loss of a convenient threemonths' grace for foreign authors, but did not seriously diminish the protection afforded. The new bill prohibited the copyrighting of works in a series of which one volume had been published before the act took effect. This would have excluded from the benefits of the act such sets as the Encyclopedia Britannica and other valuable series publications. It was a rather picayune sop to the pirates who were working on English series. Outside of a few minor details in formalities, Chace Bill II was otherwise the ^Ibid., i. ®U. S. Congress, Journal of the Semite, 1st Sess., 49th Cong. (1886), 771 ff. George Haven Putnam is evidently confused when he states in his Question of Copyright on p. 46 that the bill was reported favorably. "Ibid.

147

same as the first act. Most important pf all, of course, was the retention of the manufacturing clause! The session adjourned before any action could be taken on the altered version, which had been recommitted to the Committee on j Patents. The only mention of international copyright in the second session of the 49th Congress came from President Cleveland. In his message of December 6, 1886, he agaii devoted a few lines to the topic: The drift of sentiment in civilized communities toward full recognition of the rights of property in the creations of the human intellect has brought about the adoption by many important nations of an International Copyright Convention, which was signed at Berne on the 18th of September, 1885. Inasmuch as the Constitution gives to Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights- to their respective writings and discoveries" this Government did not feel warranted in becoming a signatory pending the action of Congress upon measures of international copyright now before it, but the right of adhesion to the Berne Convention hereafter has been reserved. I trust the subject will receive at -your hands the attention it deserves, and that the just claims of authors,) so urgently pressed will be duly heeded. si Ten days later, Cleveland of his o\yn accord sent to both Senate and House copies of the correspondence between the Swiss government and the United States Department of State concerning the foundation of the Berne Union.92 The House took no action. The Senate, for some reason known only to the presiding officer, sent the documents to the Committee on Foreign Relations instead of to the Committee on Patents which was supposed to be considering international copyright. The 49th Congress adjourned without further mention of the subject. Brander Matthews summed up the situation in a paragraph U. S. Congress, 2d Sess., 49th Cong. (1886), Journal of the Senate, 17. Ibid., 63.

148.

Final Efforts: 1880-1890

which would have been applicable to the cause of copyright revision at almost any time:

CHAPTER VI PASSAGE OF THE PLATT-SIMMONPS ACT

The struggle to secure the protection of our laws for literary property produced by citizens of foreign countries has been long and wearisome. To some it may seem fruitless. An ocean of ink has been spilt and a myriad of speeches have been made; and yet there are no positive results set down in black and white in the Revised Statutes of the United States. But the best cure for pessimism is to look back down the past, and to take exact account of the progress already made. This examination reveals [in 1885] solid grounds for encouragement in the future. The labor spent, although often misdirected, has not been in vain. Something has been gained. Public opinion is slowly crystalizing. . . . Far more important . . . is the foundation of the American Copyright League, and the massing together in a solid phalanx of nearly all the American authors. This organization is ready to move on the enemy's works at once and is prepared to "fight it out on this line if it takes all summer."93 It looked that way in 1887, too. 83

Brander Matthews, "Open Letters," Century Magazine, New Series VIII

(1885), 488.

Even the encouraging words of Brander Matthews could not compensate for the blunt fact that as 18§7 dawned all the efforts for copyright revision had not yet resulted in the alteration of a single word of the United States Statutes at Large. With the vision of hindsight, Matthews is seen to have been correct in his judgments—opinion was changing and success not really far away—but to contemporary workers in the cause years of defeat and delay must have been exceptionally frustrating. It is to their credit that they had sufficient optimism to continue, and truly were willing "to fight it out on this line," not only all summer, but for as long as it would take to secure success. The next move in the fight was the creation, or more accurately the revival, of another organization. George Palmer Putnam had been the guiding force of the first Publishers' Copyright League, which had taken part in the early stages of the struggle, and which continued to exist in a more or 'ess comatose state until his death in 1872. His son, George Haven Putnam, had been associated in the first league with his fatier, who must have instilled in his son some of his own ardent concern for international copyright. Haven thus recalled: During the years of our partnership, from 1866 to his death in 1872, I had the opportunity |of listening to much of the talk that went on in the office ion the part of those who were, like my father, working for a recognition of literary property and the removal of the stigma which had been placed upon our countfy by the complaints of transatlantic authors in regard jto the piracies of the Americans, . . . It was natural/ therefore, that after the death of my father I should have jkept before me the idea of taking up the fight to which he had devoted himself. The only question was as to the time when any fresh efforts could be made with prospect of success.1 1 George Haven Putnam, Memories of a Publisher (New York: G. P. Putnam's Sons, 1916), p. 370.

149

150

Passage of the Platt-Simmonds

Act

Putnam felt that the time had come in 1887. In November of that year he called a meeting attended by a number of the leading publishers or their representatives, and out of the discussions there emerged the American Publishers Copyright League. William H. Appleton accepted the post of President, which his father, Daniel, had held for many years in the first league. Alexander McQurg was elected Vice President, and Charles Scribner, Treasurer. Putnam took the post of Secretary, which, as in so many organizations, was the position of real power and most work. An executive committee was formed and instructed to cooperate with their opposite numbers in the Authors Copyright League. They had "full discretion to deal with such limitations upon copyright as may be prepared, and the acceptance of which by them may be deemed advisable."2 Putnam suggested a standing committee representing the two leagues. His proposal was accepted, and every subsequent step in the campaign till the passage of a bill was taken by this Conference Committee, which consisted of the following:3 From the Authors League: The President ex officio The Vice President ex officio Edward Eggleston (Chairman) Robert Underwood Johnson Thomas W. Knox George Walton Greene Richard Rogers Bowker Richard Watson Gilder From the Publishers League: William H. Appleton (Chairman) George Haven Putnam W. W. Appleton Charles Scribner (Treasurer) Joseph W. Harper A. D. F. Randolph Henry O. Houghton Henry Holt Craig Lippincott Dana Estes a

Letter of A. D. F. Randolph to the Editors, The Critic, New Series VIII (1887), 303. 3 A brief announcement of the members of the Conference Committee appeared in Publisher? Weekly, XXXIX (1891), 370.

Passage of the Platt-Simiftonds Act

151

Putnam also acted as Secretary of the Conference Committee until a breakdown of his health in November 1889 forced him to retire to Colorado for a rest. Robert Underwood Johnson succeeded to the position. Until that time, Putnam and Johnson had acted as a team. They divided the work of directing the correspondence of the Committee,4 and the preparation of documents. They took turns attending in Washington the various congressional committee hearings, as well as in making excursions to the capital to lobby among individual Congressmen. They tried to keep their efforts in the latter endeavdr on a strictly bi-partisan plane, and published a joint statement tojthe effect: It is probably hardly necessary ••. to explain that the Conference Committee which represented the several Copyright Leagues, and which has had charge of the campaign, has from the outset done all that was in its power to keep the business of copyright reform free from the entanglement of party politics. Tjie membership of the Committee included Republicans, Democrats and Mugwumps, protectionists, revenue-reformers and freetraders; but it was held that the caise of copyright had no logical connection with any of the policies or opinions indicated by these terms. 6 It is interesting to note that even on a rest cure in Colorado Putnam did not let slip by an opportunity to do a bit of work for international copyright. He talked to the Governor, a fellow Yale man, and persuaded him, as well as other influential acquaints ances, to send petitions to Representative Townsend. Putnam later checked on the effect of his efforts by a personal call on Townsend, who remarked to him: Mr. Putnam, I have a very intelligent contituency. I find that they are much interested in this measure of *An example of the powerful impression which could be created by uniform control of correspondence occurred when the North American Review opened its pages to a plan which the leagues proposed, and invited comment. Letters which were for the Chace Bill poured in from the Committee. Cf. North American Review, 146 (1888), 67-85. ''Publishers' Weekly, XXXIX (1891), 399.

Passage oj the Platt-Simmonds

152

copyright. You have no idea of the extent of this interest. I have during the past weeks received dozens of petitions and reports of addresses in favor of international copyright. I a m going to vote for your bill. 6 P u t n a m ' s single-minded devotion to the cause, which was shared by many others, goes a long way to explain the eventual success of its advocates. T h e American Publishers Copyright League organized a number of auxiliary branches across the nation, in Buffalo, Cincinnati, St. Louis, Minneapolis and Denver. T h e two most influential branches were in Boston and Chicago. T h e Copyright Association of Boston was organized a month after its parent body, D e cember 1887. H e n r y Houghton of Houghton & Mifflin and Dana Estes of Estes & Lauriat were members of the Conference Committee and took the initiative in inviting a group of Bostonians interested in literature to form the organization. Some forty ladies and gentlemen, meeting at the P a r k e r House, elected a distinguished roster of officials :7 President: President Charles Eliot of H a r v a r d Vice Presidents: James Russell Lowell Francis Parkman H e n r y Houghton T r e a s u r e r : T h o m a s Bailey Aldrich Secretary: W a r r e n F . Kellogg T h e Boston Association included not only literary figures, such as E d w a r d Everett Hale, Richard "Dana, J a m e s Parton and Charles Lauriat, but any willing citizens, such as Samuel J. Elder, a distinguished Massachusetts copyright lawyer. Elder came to N e w Y o r k and took part in the meetings of the Conference Committee when the technical legal aspects of the league's bills were under discussion, and "his thorough knowledge of the legal requirements to be provided for rendered his cooperation particularly valuable." 8 0

Passage of the Platt-Simmonds

Act

Putnam, op. cit, p. 373. ' T h e roster was published in The Critic, New Series VIII (1887), 339. 8 George Haven Putnam, The Question of Copyright (New York: G. P. Putnam's Sons, 1904), p. 49.

Act

153

General (Civil W a r brevet) Alexander Caldwell McClurg organized the Copyright League of Chicago to handle the campaign in the midwest. T h e Secretary of the League was Congressman George F . Adams of Chicago, who worked for copyright on the floor of the H o u s e and as a member of the Committee on the Judiciary which presented the favorable A d a m s Report at a crucial stage in the congressional manoeuvres. 0 A d a m s did this in spite of serious opposition from influential papers in his own constituency, viz., the Chicago Globe, Tribune, ^Inter-Ocean and Herald.10 F o r his persistence he won the praise and respect of Senator Plenry Cabot Lodge, 1 1 when the time came t o award laurels for those who were responsible for the passage of the law of 1891. All the local auxiliaries were expected to support the Chace Bill, which had been re-introduced in Congress December 12, 1887. 12 I t had been referred to the Committee on Patents again, and the Committee reported it favorably on March 19, 1888. 18 A host of petitions, this time mostly in favor of the bill, were presented to the Senate while the act was under consideration. On the same day that Chace reported in t!ie Senate, Representative W . C. P . Breckinridge of Kentucky introduced the identical bill in the H o u s e of Representatives. 1 4 T h e copyright leagues worked behind the scenes for the Chace Bill, largely through the efforts of E d w a r d Eggleston, who made seven trips to Washington during the first four months of 1888. T h e Conference Committee had determined that their strategy at this time would be to keep the issue constantly before the members of Congress, and the technique Eggleston employed was the familiar, but effective, routine of social approach. H e conferred privately with Senators, gave parties for as many as 300, including a liberal sprinkling of Congressmen, and on March 19 delivered a public address to a distinguished gathering which included 0

Cf. infra, p. 165. Cf. Public Opinion, VIII (1889), 502-503, and X (1891), 556, 559. "Henry Cabot Lodge, "International Copyright Celebration," Publishers' Weekly, XXXIX (1891), 567. 13 U. S. Congress, Journal of the Senate, 1st Sess., 50th Cong., 48. "Ibid., 487. " Journal of the House, 1240. 10

154

Passage of the Platt-Simmonds

Act

President Cleveland, the Cabinet and members of the Supreme Court.15 That same evening he escorted Mrs. Cleveland to dinner at the White House, while his wife, who assisted him in entertaining, went in on the President's arm. Gilder, of course, arranged all this.16 Such efforts seriously interfered with his writing,17 but Eggleston told his wife: This active leadership [sic] of a great movement is not unpleasant to my vanity and this discovery of unexpected ability in a new direction is very gratifying. But I dreadfully grudge the time it takes and the loss it entails in many ways. . . . I am a public-spirited man, else I should never meddle with anything so little to my taste as lawmaking.18 Still, he did the same thing the next year, and the next. April 10 Senator Chace moved that his bill, S.554, be made the special order of the day on Tuesday, April 12, at three o'clock. Two-thirds of the Senators present agreed to the. motion and it was so ordered, 19 but the Journal of the Senate for April 12 makes no mention of any discussion of this bill. Chace tried again on April 23rd, proposing that the Senate discuss his bill as in a Committee of the Whole. This was agreed to, but Chace barely had time to start to explain his revised form, when the Senate 55

William P. Randel, Edward Eggleston (New York: King's Crown Press, 1946), 182. 18 Gilder wrote Cleveland and received the following answer: We should be very glad to see the authors who propose to infest the National Capitol next Saturday within the doors of the White House; and we have given the subject a little attention and thought. We hear that Mrs. Hearst proposes a reception on Saturday night. What kind of a job would it be to have the party visit us after the reading, Monday night the 19th? Cleveland to Gilder, March 11, 1888, in Allan Nevins, Letters of Grover Cleveland (Boston: Houghton, Mifflin Co., 1933), p. 176. 17 Eggleston was then working on his History of the United States which Appleton published that summer. 18 Randel, op. tit., p. 183. 19 U. S. Senate, Journal of the Senate, 1st Sess., 50th Cong., 637.

Passage of the Platt-Simmonds

Act

155

decided to consider other business. The same thing happened on April 24th. Finally, on Monday, April 30, the Senate actually got around to discussing the Chace Bill at length. The Senate started to debate the provision of the bill relating to the importation of editions other thati the one copyrighted, but during the course of the discussion Senator Kenna requested a quorum call. When it was found that only 33 Senators were present, not enough to constitute a quorum, the Senate adjourned. Discussion resumed May 9th. Then the Senator rejected an amendment proposed by Senator Jones of Arkansas, but the number voting (37) did not constitute a quorum, and the President pro tempore directed a call. Forty-eight Senators answered the roll, but then Senator Jones withdrew his amendment. Senator Vance proposed an amendment to the effect that newspapers, periodicals and magazines should not be entitled to copyright, but it was defeated 12 to 28. No further amendments were proposed. The bill was read for a third time, and it was resolved by a vote of 35 to 10 that it pass.20 The Chace Bill was then sent to the House of Representatives for its concurrence. The House had under consideration the identical proposal in the Breckinridge Bill. It, too, had received copies of most of the petitions which had been sent to the Senate. On April 21 Chairman Collins of the Judiciary Committee presented the bill with a favorable report.21 It was placed on the House Calendar. The same procedure was followed for the Chace Bill, which the Speaker sent to the Judiciary Committee, which reported it without amendment on iMay 24th. It, too, was placed on the calendar. A host of petitions in favor of the Chace-Breckinridge Bills poured into the House at this time.22 It appeared as though the long-sought goal of a successful passage was in sight. Unfortunately the' House was then so completely occupied with the tariff controversy, centered around the Mills Bill, that the copyright bill never managed to obtain a position 30

Ibid., 796. U. S. Congress, Journal of the Hoiise of Representatives, 1st Sess., 50th Cong., 1710. ™Ibid., 1747, 1789, 1872, 1915, 2032, 2042, 2111 and passim. 21

156

Passage of the Platt-Simmonds

Act

on the calendar which would even allow debate to start. During April, and May, 151 speeches were made on the tariff, and from May to July the House considered the Mills Bill paragraph by paragraph. 23 The 50th Congress adjourned without further mention of copyright. It was necessary to start the process all over in the next Congress, and the advocates of international copyright girded themselves for what would prove to be the final battle. That at least one of the organizations was able and willing to spend a fairly large: sum of money to accomplish its purpose is evident from an incomplete and slightly inaccurate financial report of the American Publishers Copyright League for 1890.24 The Publishers League charged annual dues of $25 for Members and $10 for Associate Members> and sought contributions from any likely source. Treasurer Charles Scribner reported the annual income as follows: Balance on Hand: Annual Dues 1890: Contributions:

$ 110.41 965.00 5,925.00 $6,500.41

Almost all of this had been spent during the year, but Scribner did not itemize the disbursements any more than the contributions, merely lumping it all as "printing, postage, travel and expenses in Washington: $6,373.32." He then stated the balance on hand to be $127, and evidently no one was petty enough to question nine cents, for his accounts were approved as read. Although further details would be most interesting it is known that one group spent more than $6,000 in the final year of the struggle. The last efforts for revision took place on the usual distinct, but inter-related fronts—the floor of Congress and the channels of influence outside of Congress. On the floor, the only mention 28 Edward Stanwood, American Tariff Controversies in the Nineteenth Century (Boston: Houghton, Mifflin Co., 1903), I, 234, 235. M The report was printed in Publishers' Weekly, XXXIX (1891), 440. It is hardly likely that even so righteous a lobby would broadcast the deails of their expenditures.

Passage of the Platt-Simmonds

Act

157

of international copyright during the second session of the 50th Congress occurred when Senator Chace asked for and received permission to have printed 1,000 copies of his bill. Congress heard President Harrison devote a very brief word to copyright: The subject of an internatic nal copyright has been frequently commended to the attention of Congress by my predecessors. The enactment of such a law would be eminently wise and just. 25 On the following day Senator Orville Piatt of Connecticut reintroduced the Chace Bill (Senator Chace having resigned his seat), and Breckinridge re-introduced it into the House. 26 The Conference Committee of the A.A.C.L. and the A.P.C.L. began to employ every conceivable effort in their final campaign to insure passage of the Chace-Platt-Breckinridge Bill, as it came to be called. The Committee promoted petitions, booked author's readings which included appeals for international copyright, gave banquets, solicited the use of names and letters, and placed articles favoring revision in the press all ov;r the nation. The campaign for the bills in the 51st Congress opened with a breakfast given in New York City or. December 7, 1889, in honor of Count Emile de Keratry, a representative of French literary and artistic associations. Although managed by the A.A.C.L. representative, Edward Eggleston, Episcopalian Bishop Potter of New York actually presided, and a host of distinguished New Yorkers were present. Eggleston used the opportunity to make a rather lengthy speech in favor of international copyright, emphasizing that, although piracy of English works was a familiar phenomenon, the general public j would probably be shocked to hear that our gallant ally, France! also could accuse us of robbery. De Keratry made the same point, if somewhat more courteously. News of the affair and excerpts' from the speeches were promptly printed by Gilder in an article ^hich concluded: Every man and woman interested in literature to any degree ought to write a letter to his or her Congressman, ;

U. S. Congress, Journal of the Senate, 1st Sess., 51st Cong., 8.

'Ibid., 17 and Journal of the House of Representatives, 91.

Passage of the Platt-Sinipnonds Act 158

Passage of the Pldtt-Simmonds

begging him to exert himself to correct this great wrong by the passage of a law in keeping with the intelligence and honesty of our people.27 Gilder had already noted something of piracy against the French,28 and De Keratry was encouraged to extend his remarks in print, and did so in an article which appealed to Congressmen for speedy, bi-partisan passage of the Copyright Bill.29 The whole affair was an admirable exercise in multiple propaganda technique! The Conference Committee was equally effective in promoting petitions and soliciting the authorization of names to be used to persuade Congress that both the elite and the masses favored revision. During the last year of the struggle, from the time the Chace Bill was re-introduced till its final passage, the Senate received 77 petitions in favor of the bill, and the House received 74. There was some duplication, but not much; the Typographical Unions concentrated on the House, as did the librarians and teachers.80 The use of individual letters and names seems to have been confined to presentation at hearings or to private lobbying among Congressmen. The Committee managed to gather an impressive collection. 27

159

Act

Richard W . Gilder, "Topics of the Time," Century Magazine, New Series X V I I (1899), 793. 38 Richard W . Gilder, "Our Sins Against France," Century Magazine, X X X I X (1890), 792. ^ E m i l e de Keratry, " A Plea for Copyright," North American Review, 150 (1890), 106-109. 30 The petition from the American Library Association, the National Education Association, and individual librarians and teachers can be traced to Richard Rogers Bowker and the Joint Committee of the A.L.A. and N.E.A. Bowker was a charter member of the A.L.A. and co-founder of its organ, the Library Journal. At its national convention, September 1890, the A.L.A. passed a resolution in favor of international copyright and chose a representative for the Conference Committee. Frank P . Hill, Librarian of the Brooklyn Public Library where Bowker was Vice President of the Board of Directors, served during the few months left before passage of the law. Cf. E . McClung Fleming, R. R. Bowker, Militant Liberal (Norman, Okla.: University of Oklahoma Press, 1952), 187, 191, 193, 364 and 370 and Library Journal X V (1890), 130, for remarks of Senator Chace. Also, Proceedings of the Department of Superintendence (Washington, U. S. Bureau of Education, 1888), 12.

After resurrection some of the older documents, e.g., the Bowker Memorial of 145 Authors and the Century Magazine's circular to composers, the Conference Committee; presented to the House Committee on Patents a petition of southern authors with 114 signatures, including those of Thomas Nelson Page, Joel Chandler Harris, Frances Hodgson Burnett, George Washington Cable, and Mary N. Murfree. They addressed a circular to 40 leading monthly magazines and received favorable replies from all of them, authorizing the use of their names before jCongressional committees. Several distinguished citizens allowed the use of their names, and letters from such disparate sources as Cardinal Gibbons, ex-President Cleveland and Prime Minister William Gladstone were read to the Representatives.31 The American Publishers Copyright League adopted a resolution of the Chace Bill: Resolved, That the Chace copyright! bill, with the amendments now recommended by your committee, appears fairly to meet the several requirements of American writers, readers, manufacturers, and sellers of books, domestic and foreign, and has the approval of this league; and our executive committee is hereby instructed to take such action as it may find requisite to secure the passage of the bill. . . . Sixty-five firms signed the document, Vrhich was then presented to the Committee on Patents. 82 Obviously, a committee composed of authors, editors and publishers enjoys unique publication facilities, and the Conference Committee did not neglect this aspect of their campaign. Samuel Clemens and Brander Matthews published a joint article,33 which the league re-published and distributed as a pamphlet.34 Even 31 All the above documents and similar items can be found printed as appendices to the Simmonds Report. Reports of the Committee, of the House of Representatives, 1st Sess., 51st Cong.,; VII, 2041.

^Ibid. 33 Samuel Clemens and Brander Matthews, "American Authors and British Pirates," New Princeton Review, New Series V (1888), 47-65. 34 Brander Matthews, American Authors and British Pirates (New Y o r k : The American Copyright League, 1889), 39 p.

160

Passage of the Platt-Simmonds

Act

The Nation, which opposed the Chace Bill,36 had to praise the quality of this work as "entertaining and to the point." Matthews also authored another pamphlet and an article, and his work was particularly directed to convincing people that copyright would not mean the end of cheap literature for the masses. To mention all the published works of the men in favor of international copyright is not possible here. Holt wrote two articles; Lathrop, McClurg, Solberg, Putnam, Lowell, Warner, Lodge, Johnson, Hale and many others managed to break into print at this opportune time. Occasionally, what they wrote in a journal was re-printed in another periodical.38 The spread of their propaganda was nationwide. Nor did the Conference Committee fail to arrange for its members to attack any proposal not pleasing to them. When Pearsall Smith secured space in the North American Review for his own little scheme of copyright, letters from Eggleston, Stedman, Harper, Gilder,. and others found their way into print to condemn the plan.87 Poor Smith, incidentally, was pilloried by almost everybody, including the ubiquitous Theodore Roosevelt,38 and writers on both sides of the Atlantic.89 The Conference Committee expected.members not only to write for the cause, but also to speak. One of the favorite ways to raise money was the device of "author's readings." The Committee asked authors to read publicly selections from their better-known works, and charged admission for anyone who wished the pleasure of the experience. Held on various occasions in New York, Boston, Washington and Chicago, these performances were popular and quite profitable.40 One of the more notable sessions was the twoday program given on November 28 and 29, 1887, in Chickering 35

"The International Copyright Bill," The Nation, XXX (1888), 44. CI The Critic, New Series VIII (1887), 168 ff., 184. ""North American Review, 146 (1888), 67-85; Henry Holt, "The Recoil of Piracy," The Forum., I (1888), 24-27; The Critic, New Series VIII, 273. 88 Theodore Roosevelt, "Remarks on Balloting and Copyright," North American Review, 146 (1888), 221. 89 Ci. Nineteenth Century, XIX (1887), passim. " I t was publicly announced that the meeting described herein earned proceeds of $4,000. Similar sums, if not as great, should have been earned at each such meeting. 39

Passage of the Platt-Simpnonds Act

161

Hall. Under the direction of James Rus$ell Lowell, the Committee presented a most attractive program: On November 28: Mark Twain Reciting "The Fatal Anecdote" Edward Eggleston .. Reading from "Prophetic Retrospect" Richard Stoddard - Reciting "The Flower of Love" and; "The Follower" G. W. Cable Reading "The first ringing of the school bell at Grand Point" James W. Riley Reciting "When the frost is on the

purikin'" On November 29: J. R. Lowell

Reading "The Finding of the Lyre" "Aladdin" "After the Burial" C. D. Warner Reading "The Hunting of the Bear" Thomas N. Page Reading "Unc' Edinburgh's Drowndin'" Wm. Dean Howells Reading a chapter from April Hofes G. W. Curtis Reciting "Tfc e New Livery" James W. Riley Reciting "Nothing to say"

Lowell stated the purpose bluntly: The meeting here today is held for the purpose of raising funds to promote the aims of a society founded in the hope of relieving America from a jreproach and American authors from an unjust and unwisely-imposed burden.41 The efforts of the Conference Committee to secure newspaper space were tremendous, and their success in literally hundreds of papers too vast to do more than explain briefly their judicious use of "boilerplate."42 Putnam himself has recorded their method. * "Authors Readings," The Critic, New Series VIII (1887), 282. Every account of the event was so much free publicity for the cause. 43 "Boilerplate" is printers' slang for exactly the kind of prefabricated newspaper page, or any other similar material, which Putnam -knew as "patent insides."

162

Passage of the Platt-Simmonds

Passage of the Platt-Sinimonds Act

Act

Something was accomplished, however, towards the education of far-off communities by the use of the. press. We sent out from our committee rooms from week to week thousands of more or less cleverly written editorial sermons, paragraphs, references to literary conditions, stories turning upon the value of copyright for literary production and upon the necessity, for the interests of the community, of removing all restrictions upon literary production. The editors of a number of newspapers, particularly in the smaller and far-off places where editorial and literary material was comparatively scarce, were not unwilling to make space for our communications. Some labor was saved also in the matter of the typesetting of this material by arrangements made with two or three syndicates which at that time controlled what is known as the "patent inside" business. Such syndicates have doubtless largely increased in later years, but in 1888, there were, I think, but three of any importance, two in New York and one in Chicago. These syndicates made up a quarto page of the size which was standard or at least usual with the county town papers. This page, containing literary material, guaranteed to be "interesting and informative," was put into the form of a stereotyped or electrotyped plate and this plate was sent by express to the county papers which had subscribed for it. The cost of such a plate, for a weekly issue, averaged if I remember rightly $5.00. It was intended in any case to be something less than the amount that would be paid by the newspaper for putting into type similar material irrespective of any price paid for the literary material. . . . It was agreed that the columns should contain "interesting and informing" matter. I secured contributions for the column from Edward Eggleston, Richard Watson Gilder, Henry van Dyke, R. R. Bowker, and other clever writers working in the cause of copyright. The materials possessed, of course, a higher literary quality than was as a rule to be found in the literary sketches and papers purchased by the editors of the "patent insides"; and the authors, particularly men like Eggleston who had been in direct touch with the Western taste, were on the whole clever in shaping their "sermons" so that they would not be skipped by the readers of the page. These "patent insides" went to thousands of journals [italics mine] and while the Congressmen from the districts in which these papers were published must have heard of the "patent inside" system, they could not get over the impression

163

that an article printed in the home paper must represent, to some extent at least, the opinion of the constituents. I heard Congressman after Congressman refer with pride, mingled with a little surprise, to the intelligent service that was being rendered by the local paper in his district to the educational work of the copyright cause.48 Finally, since so many of the members of the league approached the problem of international copyright from a moral or ethical standpoint, the Conference Committee did not neglect to secure the services of noted ministers. Dr. Henry van Dyke of New York City published a sermon on international copyright,4* and the Committee brought him to Washington where he gave the same sermon in the Presbyterian Church, to which Congressmen had been invited by individual, personal invitation. The influence of van Dyke and other preachers, such as Archdeacon A. Mackay Smith, is difficult to measure, but it must have added some weight to the constant hammering to which Congressmen were subjected. The Conference Committee reached the peak of its strength in the middle of 1889 when it added to its number representatives of the Typographical Union and the Typothetae. In 1888 the Typographical Union had passed a resolution in favor of the Chace Bill, and instructed its lone member in Congress, Representative Amos J. Cummings, to interest himself in its passage.45 The following year they selected a committee to work with the A.C.L. and the A.P.C.L., and President William E. Boselly of Local No. 6 joined the Conference CommitteeL Local unions were urged to petition Congress, and some twenty-four sent in memorials.46 The Typothetae was the union of employing printers. Oddly enough, it can trace its origin to a pioneer pirate, Matthew Carey of Philadelphia, who suggested the formation of a cooperative 43

Putnam, Memories of a Publisher, pp. 374-375. Henry van Dyke, The National Sin of Literary Piracy (New York: C. ;Scribner's Sons, 1888), 26 p. 46 Stevens, op. cit., p. 652. " U . S. Congress, Journal of the Senate, 1st Sess., 51st Cong., 69, 117, US, and passim and Journal of the House of Representatives, 125, 128, 129, 133, 142, 150, 165, 170, 180, 191, 213, 292 and passim. 44

164

Passage of the Platt-Simmonds

Act

organization in 1801. 47 T h e original association lay dormant for many, many years, till Peter Carpenter Baker and Theodore de Vinne revived it, February 23, 1863. 48 T h e idea caught on across the country, and representatives from various locals joined with Baker in 1887 to form the United Typothetae of America. T h e Vice President, Theodore d e Vinne, one of the nation's leading experts in the mechanical aspects of the printing field, joined the Conference Committee as representative of his organization, which added its petitions to the pressure on Congress. T h e addition of D e Vinne meant that the Conference Committee then represented the American A u t h o r s Copyright League, the American Publishers Copyright League, the Typographical Union and the Typothetae—large and influential groups, whose voice Congress could not afford to ignore. They had at their command all the above-described methods of propaganda, and they used them religiously all the while Congress was considering the ChacePlatt-Breckinridge Bill. Much of the credit for its eventual passage must go to the men who worked outside the floor of Congress. T h e rather complicated course of international copyright on the floor of Congress was halting and tortuous, even though the ground had been prepared and the Conference Committee labored faithfully during all the sessions. A s mentioned above, Senator Qrville Piatt had re-introduced a modified Chace Bill, 49 which "John Clyde Oswald, Printing in The Americas (New York: The Gregg Publishing Co., 1937), 357. The early Typothetae concerned themselves chiefly with the management of book fairs in Philadelphia and New York. 48 Thomas Dreier, The Power of Print—and Men (New York: Mergenthaler Linotype Co., 1936), p. 117, and "Peter Carpenter Baker," D.A.B., I, 525-526. The Typographical Unions did not generally get along with the Typothetae, since each had a slightly different approach to the problems of the trade, but they had cooperated in the past on a few occasions. Cf. George A. Stevens, New York Typographical Union No, 6 (Albany, N. Y.: J. B. Lyon Co., 1912), pp. 318, 342, 375, 377, 457. This time, at least, they were in accord, though there seems to be no record of any special action on the part of the Typothetae other than resolutions and petitions. *° The text of the Piatt Bill was an amalgam of the Chace Bill and a draft submitted by Thorwald Solberg to the Conference Committee and amended by the committee seventeen times. Thorwald Solberg, "The Bibliography of International Copyright in Congress," Publishers? Weekly, XXXIX (1891), 789.

Passage of the Platt-Simmonds

Act

165

had been referred t o the Committee on Patents. Representative Breckinridge 5 0 had introduced an identical bill in the House of Representatives, and this had been referred to the Committee on the Judiciary. Since Colonel Breckinridge was a Democrat and the Conference Committee desired to make! the issue as bi-partisan as possible, they arranged for Representative Benjamin Butterworth, a Republican from Ohio, to introduce the same bill on the same day, January 6, 1890. H i s bill went to the Committee On Patents. 5 1 T h i s secured a double chance for copyright, and future events showed that if it had not been for this move international copyright might not have passed in the Fifty-first Congress. O n F e b r u a r y 15 Representative George Adams, Secretary of the Chicago Copyright League and member of the Committee oh the Judiciary, reported the Breckinridge Bill ( H . R. 3853) favorably. 52 T h e new bill was placed on the H o u s e Calendar. Three days later Representative Simmonds of Connecticut submitted a favorable report from t h e Committee <\n P a t e n t s on the Butterworth Bill, along with a substitute version of that bill. 53 T h e new version was the same as the original with the sole addition of a reciprocity clause stating: T h a t this act shall apply only to a citizen of a foreign state or nation when such foreign s:ate or nation permits t o citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation permits to citizens of the United States <j>f America copyright privileges substantially similar to those provided for in this act; or when such foreign state or nation is party t o an international agreement which provides for reciprocity in the grant of copyright, by the terms of which agreement the United States |of America may at its pleasure become a party to such an agreement. T h e w W. C. P. Breckinridge was a friend iof Putnam. He had worked with Putnam in the Free-Trade League, and readily accepted the directions of the Conference Committee in the fight for copyright. ^ U. S. Congress, Journal of the House of Representatives, 1st Sess., 5lst Cong., 92. 02 Ibid., 235. The new version was H. R. 6941, ^Ibid., 253. His new version was H. R. 7312. Almost every bill on copy* right was revised, or re-introduced, thus acquiring a different number. ;

166

Passage of the Platt-Simmonds

Act

Passage of the Platt-Sfymnonds Act

167

i

existence of either of these conditions shall be determined by the opinion of the Attorney General of the United States whenever an occasion for such a determination arises.84

mediately moved to reconsider, but his motion was laid- on the table so the House could adjourn. The House did not again consider the motion or the bill, and the Butterworth bill never reached the top of the calendar.

The bill in its new version was also placed on the calendar. Senator Piatt evidently judged this version to be the best one,05 for two days later he asked for and received permission from the Senate to substitute it for his own bill.66 The Senate also decided to consider the Piatt Bill on the following day, but in the proceedings of the Senate for the remainder of the first session there is no mention of the Piatt Bill. The House, however, continued to carry its two copyright bills on the calendar, and eventually came to consider the first one. May 1, McKinley from the Committee on Rules submitted as a privileged question a resolution that the House proceed to consider bills from the Committee on the Judiciary. The House passed the resolution, and, considering said bills finally came to H. R. 6941 (the Adams version of the Breckinridge Bill), but it was too late in the day and the House adjourned. The next day the House debated the bill till 4:00 P.M., equal time being given to friends and opponents. Opposition to the bill came from Representative Louis R. Payson, Republican of Illinois, who proposed a whole series of amendments. Most were very minor changes on details of wording or cessation of reciprocity, but one amendment implied revocation of the manufacturing clause, which was a key provision. Discussion of these filled the allotted time, and when 4:00 P.M. came, the question of the third reading was put and defeated 99 to 125 with 103 not voting.57 Breckinridge im-

But Simmonds, May 16, reintroduced the Bill, which was again referred to the Committee on Patents. This Bill, now numbered H. R. 10254, was to be the successful one, and generally is known as the Simmonds Bill. Its sponsor reported it on June 10 in a lengthy document which contained all of the above-mentioned petitions, letters, circulars, signed memorials, lists of papers and magazines which favored copyright, as well as brief passages on literary property, terms of copyright throughout the world, copyright law, book prices, and almost anything relevant to the subject. It was the most comprehensive and forceful report which Congress had yet received, though much of it was compiled from previous hearings and reports. In closing, Simmonds recapitulated the whole document:

M

Section 13. Piatt and Simmonds were both specialists in patent law, and presumably thought along similar lines. Simmonds served later as U. S. Commissioner of Patents, and Piatt headed the Senate Committee on Patents for ten years, and his name is associated with almost every patent law passed in Congress during his long career, 1879-1905. 68 U. S. Congress, Journal of the Senate, 1st Sess.,'51st Cong., 134. 67 U. S. Congress, Journal of the House of Representatives, 1st Sess., 5lst Cong., 562. The Payson amendments on reciprocity were actually agreed to, being in reality only a version of the original clause worded hi the stronger ro

The intelligent voice of the whole country asks for the passage of a measure substantially the same as this; authors, publishers, printers, musical composers, colleges, educators, librarians, newspapers and magazines join in the prayer. Clay and Webster favored such a thing in the past; Gladstone, Cleveland, Harrison and Cardinal Gibbons favor it today. Our term jof copyright is shorter than that sanctioned by the verdict jof the rest of the world. Substantially all the world, except Great Britain and the United States, treats foreigners and citizens alike in the matter of copyright; Great Britain permits copyright to foreigners on the same basis as citizens, if the foreigner be at the time of publication on British soil; the Queen is empowered by law to establish reciprocity with us if we will permit it, knd we stand alone in rejecting and refusing overtures! A hundred international copyright agreements have been signed; the name of the United States is in no one of them. It is shown that an author has a natural exclusive right to his intellectual productions; that the common negative form, but his other amendments would have destroyed the value of the bill in the eyes of the printers, binders and manufacturing interests.

168

Passage of the Platt-Simmonds

Act

law of England always recognized the right; that our present procedure \ represses authorship by putting the products of the labor of American authors into untrammeled competition with the products of English labor, for which nothing is paid; that our present procedure deprives American authors of the advantages of the British market; that our present procedure vitiates •the education and! tastes of American youth; that our present procedure bars our people from the benefits of the good literature of England, and that our present procedure prevents the cheapening of good and desirable books in the United States. It cannot be possible that the American Congress will, with full knowledge, permit the present procedure to continue.58 The Simmonds bill was referred to the calendar, but did not come up for debate during that session. On: the second day of the second session, Simmonds called up his bill, and won permission of the House for immediate consideration.59 He started to explain his bill, but was interrupted constantly by motions that the House adjourn or lay the bill on the table. Evidently the House was not in the jmood for serious discussion, for the members seemed to delight in very involved discussion on motions to amend the motion to consider the previous motion, to the accompaniment of much laughter. From 1:25 P.M., when he started, till 5:05 P.M., Simmonds accomplished nothing, and he himself finally moved an adjournment.60 Simmonds was allowed twenty minutes the next day, and he gave most of his time to Breckinridge and McAdoo. Representative Peters, who opposed the bill as a measure of special privilege, moved to consider whether or not it might be more expedient to limit the term of copyright to only fourteen years, and Breckinridge countered with an amendment to his motion which was defeated and saved the! bill from the delay of re-commitment to 68

U. S. Congress, Reports of committees of the House of Representatives, 1st Sess., 51st Cong., VII, No. 2401, 24-25. 69 U. S. Congress, Journal of the House of Representatives, 2d Sess., 5lst Cong., 14. 00 U. S. Congress, Congressional Record, XXII, Part I, 38.

Passage of the Platt-Simmonds

Act

169

committee for further study.61 No one proposed further amendment, so the Speaker put the bill to thej question and the House decided by vote of 139 to 95 (with 96 not voting), that the bill should pass.62 Thus, on December 3, 1893, for the second time an international copyright bill had passed in Congress, this time in the House. It remained to seek the concurrence of the Senate. Since the Senate had once passed the Chace Bill, it seemed reasonable to hope that there would be little difficulty with the Simmonds Bill, which was practically identical. Putnam claimed that the Conference Committee was able to secure second place on the Senate Calendar for the copyright bill precisely because of this, 63 but the records of the Senate merely state that it was read twice and ordered to lie on the table.64 Since the Senate did not refer the bill to any committee or hpld further hearings, the efforts of the Conference Committee were confined to personal lobbying and to watchful assistance in the parliamentary manoeuvring by friends of the bill.65 | February 9 Senator Piatt moved that the Senate consider H. R. 10881 (the new number of the Simmonds Bill as amended) in Committee of the Whole, and so it proceeded. The bill was read, and a minor printing error corrected, Senator Piatt then addressed the chair: Mr. President, I do not wish to take the time of the Senate in any lengthy explanation of this bill. We have 61 Ibid., 59. During the final phases of passage, the friends of the copyright bills considered delay their greatest enemy and vigorously fought any measure, such as re-commitment to a committee, which they considered would mean the death of the bill. 63 U. S. Congress, Journal of the House of Representatives, 2d Sess., 51st Cong., 21. 83 Putnam, Question of Copyright, p. 57. Even though the author notes in his preface that this work was "prepared for the press hurriedly," the number of incorrect citations, particularly when compared with the Journals of Congress, is very great; it should be used with care. M U. S. Congress, Journal of the Senate, 2d Sess., 51st Cong., 14. 05 Congressional Record, XXII, Part 3, 2378-2379. Members of the Conference Committee were always in attendance at the sessions which dealt with international copyright.

170

Passage of the Platt-Simmonds

Act

now waited fifty-three years for this moment, when an international copyright law could be enacted. Fifty-three years ago Henry Clay made a report which, in the estimation of thoughtful men, thoroughly demonstrated not only the expediency, but the duty of extending the right of copyright to foreigners, the passage of an international copyright law. This bill is practically the same bill which was passed by the Senate some two or three years ago, known as the Chace Bill. It passed the Senate then with only ten votes in the opposition, as I remember, on the yeas and nays. It does not differ in principles or material from the Chace Bill, except in one particular, and that is it depends upon foreign countries adopting similar legislation. . . . It differs in structure from the Chace Bill in that the Chace Bill suggests amendments to the existing statutes, whereas this bill recites the existing statutes as they will be when amended, a better form of enactment. As I said, there has been no departure in principle from the Chace Bill. There may be one or two instances a little change of language from the Chace Bill, but not in principle. As that bill was so thoroughly discussed in the Senate and received so strong a support in the Senate I shall not, at j this period of the session, with the important business which is to come, take the time of the Senate in discussing the bill. Piatt then very briefly outlined the principle of literary property and authors' rights therein, comparing this with patents. He emphasized the fact that he knew his bill was not a perfect measure, but hoped that it would be a step in the right direction. Senator William P. Frye of Maine then took the floor to state: I am in favor of a copyright bill and have been ever since I have been in Congress. I shall vote for this bill whether it is amended or not: but I haye always entertained the notion that any constituent of mine had a right to have presented to the Senate any petition respectful in its form, any bill, or any amendment to any bill, and that I as a Senator had no right to refuse a constituent in these directions. . . . Therefore I offer the following amendment: "In section 3, line 23, after the word 'book' insert 'map,

Passage of the Platt-Simmonds

Act

171

chart, dramatic or musical compositeon, engraving, cut, print, photograph, chromo, or lithogr:aph.' . . ."ee Senator Frye also made the corresponding changes in lines 26, 28, 29 and 35. He felt obliged to explain his Amendment, pointing out that the bill gave protection to printers, but that the lithographers, photographers and plate engravers did riot enjoy like protection under the bill as presented. He stated that his amendment was for one purpose only, i.e., to afford protection to these neglected groups which formed a large segment [of American business.67 He read letters from two Maine publishers with an interest in chromos, and later Senator McPherson d>f New Jersey presented a lengthy petition from the National Lithographers of the United States and some 57 establishments represented thereby. Senator Evarts spoke briefly in favor jof the Frye amendment, and then Piatt arose to reply. While he expressed respect for the interests and wishes of lithographers and photographers, the nature of their work and printing, which made him feel that the amendment ought to be considered more fully in a committee that would have the opportunity to study the nature of these special processes. A vote was then taken, and the Frye amendment was adopted by a vote of 27 to 24.68 Senator Sherman proposed an amendment changing Section 3, line 30 and following to read: During the existence of such copyright the importation into the United States of any book, map, chart, dramatic or musical composition, engraving, chromo, or lithograph cut, print, or photograph, so copyrighted, or any edition or editions thereof, or any plates ofl the same not made from type set, engraving negatives or drawings on stone, made within the limits of the United States, shall be, and they are hereby, subject to the duties provided by law, except in the cases specified in Section 2905 of the Revised Statutes of the U. S.S9 ">Ibid., 2379. 67 Frye claimed he spoke for ''thousands," who represented a business worth $18,000,000. <* Ibid., 2392. "Ibid.

172

Passage of the Platt-Simmonds

Passage of the Platt-Simpionds Act

Act

This caused a furor, but the Senate adjourned at 6;00 P.M. before the arguments could be developed. The next day the Senate considered the Naval Appropriations Bill, and although Senator Piatt might have secured a few minutes, he decided to let the copyright bill go over a day or two. Senator Sherman had gone to New York, and little could be done during his absence. Discussion resumed February 14. The Sherman amendment posed a real threat. It authorized the importation of foreign editions of books by American as well as foreign authors, and did not even stipulate that permission of the author was required. It was, therefore, a practical denial of all copyright, and would have in practice rendered void domestic as well as international copyright. Senator Piatt later remarked: It seemed to me that every argument against it [international copyright] was levelled not at international copyright, but at domestic copyright as well. . . . I told your committeeJat the time that the fight was going on, that I feared more that we should lose American copyright, than that we should fail to accomplish International : Copyright.698 | : It can be doubted if this is what the Senator from Ohio intended, for he seems to have (been most interested in allowing the importation of foreign books! and in seeking that copyright for foreigners should not be inclusive. Senator Piatt tried to make it clear to him and the other Senators, particularly Daniel, Carlisle, Hale and Plumb, that such an attitude was inconsistent with the very meaning of copyright and \ incompatible with the manufacturing clauses of the bill, but he did not succeed. When put to a vote, the Sherman amendment passed by the narrow margin of 25 to 24.™ Piatt did not have much time, for discussion was closed in order to take up a message from the President. 69,1 Speech of Senator JPlatt at the International Copyright Banquet, April .13, 1891, Publishers' Weekly, XXXIX (1891), 566. 70 U. S. Congress, Journal of the Senate, 2d Sess., Slst Cong., 139. Friends of international copyright, writing after passage of the bill, seem to be unanimous in their criticism of the hasty and ill-considered amendments of Senators whom they claim knew nothing of the highly technical details of copyright.

173

The next day Senator Carlisle proposed a very lengthy and highly technical amendment on the importation of foreign editions, defining legal responsibilities and imposing penalties for violations of the law. It was intended to implement the policy of the Sherman amendment, and the question of its meaning and effect gave rise to long discussion, chiefly of a legal character. The Senate approved the Carlisle amendment 29 to 24 n Its most practical provision provided that anyone could import non-copyrighted editions to the extent of not more than two cop es at any one time, such copies to be certified for use of any purchaser, who for some reason preferred a special foreign edition which also existed in an edition protected by copyright. Senator Reagan moved to strike out the proviso requiring two copies of books, maps, charts, etc., to be deposited with the Librarian of Congress, and to be printed from type set within the limits of the United States. This was summarily defeated by vote of 29 to 16.72 No further amendments were proposed. The Committee of the Whole then reported the bill to the Senate, and Piatt demanded the yeas and nays of the Senate on the committee amendments in toto. The amendments were defeated by a vote of 31 to 29.73 This left the Senate with the original bill to consider, and the whole process started all over again. Senator Daniel proposed to amend the manufacturing clause by adding "or otherwise produced from processes executed in the United States," having in mind to include the new process of heliographing. Discussion of this started and soon drifted far afield, but was interrupted at 3:30 P.M., by a message from the President announcing the death of General William Tecumseh Sherman, after which the Senate adjourned. February 17 the Senate took up the Piatt Bill for a short time in the afternoon. Daniel's amendment was defeated 27 to 18.7* An amendment proposed by Senator Vance to allow publishers to import not more than two copies of any newspaper or periodical 1

Congressional Record, XXII, Part 3, 2664-2668. 'Ibid., 2675. ! Journal of the Senate, 2d Sess., 51st Cong., 142. 'Ibid., 150.

174

Passage of the Platt-Simmonds

Act Passage of the Platt-Simmondk Act

published in a foreign country was defeated by the same vote.73 Senator Edmunds proposed to substitute the President for the Attorney General as the proper authority to announce by proclamation the conditions of reciprocity, and this was agreed to without vote. The Senate adjourned at 5:58 P.M. On the afternoon of February 18, in the absence of Senator Sherman, Senator Power again proposed the Sherman amendment now modified to read: Except that all books, maps, charts, dramatic or musical compositions, engraving, cut, print, lithograph or photograph or negative thereof, or any paintings, drawings, chromos, or any statues so copyrighted, the author, inventor, designer, or proprietor of which shall be a citizen, subject or resident of a foreign country, may be imported into the United States upon the payment of duties, if any, imposed by law at the time of such importation.76 After a certain amount of re-hashing of the arguments already debated in the Committee of the Whole, the Senate again passed the amendment by vote of 36 to 24.77 Senator Frye also reintroduced his amendment (on lithographing), which was likewise again adopted by vote of 41 to 24.78 Senator Ingalls proposed a short amendment simply exempting newspapers and periodicals from the purview of the act, and this was agreed to. A few minor amendments, slight variations in details of wording, were passed without serious discussion. As these minor matters passed along very smoothly, and the tenor of discussion remained good-natured, it appeared that the bill was well on its way, when suddenly Senator Daniel moved to strike out almost all of Section 3, the very heart of the act. In justification, he had resurrected the old Morrill Report, a good part of which he proceeded to read into the record. After a brief "Ibid. ™ Congressional Record, XXII, Part 3, 2835. •"Ibid., 2837. ™Ibid., 2842. The Conference Committee objected to the final form of the Frye amendments and started a campaign to persuade the Senate to reconsider. A letter from R. U. Johnson was read to the Senate, but all efforts were in vain. Ibid., 2843.

175

rejoinder by Piatt, Daniel's proposal was Rejected by decisive vote of 31 to 17.79 There seems to be little1 doubt that a solid majority of the Senators were in favor of the bill bill as as aa whole, whole, and and that what controversy existed was directed to form and detail, rather than essence. Yet, this did not deter Senator Pasco of Florida from making one last effort to defeat the bill by moving to strike out all of it and substitute his own version. The Pasco substitute bill comprised a brief twenty-three lines of text, and stated, in essence, that foreign authors could contract with American publishers on the same basis as citizens of the United States, and that said contracts would have the same force and effect as contracts between two citizens. No one took this proposal! very seriously, and it was defeated 33 to 18.80 No further amendments were proposed. The Piatt Bill was then read for the third time, and the question, shall the bill pass, was put. It was determined in the affirmative : Yeas 36; Nays 14. The vote of the Senators present was as follows: I Blair Carey Chandler Cullom Dixon Dolph Edmunds Evarts Farwell Faulkner Frye Gray Hampton Higgins Hoar McConnell McMillan

YEAS McPherson Mitchell Morrill Paddock Pasco 1 Piatt Plumb Sanders Sawyer Stanford Stewart Stockbridge Warren Washburn Wilson of Iowa Wilson of Md. Wolcott

NAYS Bab Bejrry Call CaHisle Cagey Coke Daniel George Harris Jones Pettigrew Pugh Reagan Vest

1 Pasco voted first with the opponents, but then changed his vote in order to move reconsideration. The manoeuvre did not accomplish anything. w

Ibid., 2845-2846. Ibid., 2847.

80

176

Passage of the Platt-Simmonds

Act

The House was duly notified of the action of the Senate, but did not consider their action till February 28th. Then the Speaker laid before the House H. R. 10881 as amended by the Senate, and Payson moved immediately that it be passed over. It was agreed to delay consideration till the evening session. At that time, on a point of order, Payson moved that the bill should be referred to the Committee of the Whole as containing a new provision relating to the tariff. He claimed that under Rule 20 such business must receive its first consideration in the Committee of Whole House on the state of the Union, and that the bill and the amendments were not in order for present consideration as business properly on the Speaker's table.81 The Speaker ruled against Payson, and Simmonds immediately moved that the House nonconcur in the amendments and request a conference. Payson, as an expedient, moved to concur. The question was put, and the House voted not to concur and agreed to a conference.82 Before conferees could be appointed, Payson submitted a very lengthy resolution containing instructions to the conferees, which would have forced the conferees to insist upon a ,bill which embodied the 10 per cent royalty plan (the Pearsall Smith plan) .8S Simmonds fought this on a point of order, namely, that the instructions would do away with the text of the bill to which both houses had already agreed and that such instructions were not permissible according to the practice and precedents of the House. The Speaker sustained the point of order, and appointed as conferees Representatives Simmonds, Buchanan and Cowles.84 The Senate was informed that same day, Saturday, February 28. The Conference Committee met on Sunday and presented its report on Monday. The report was presented in the House as follows: The committee of conference on the disagreeing votes of the two Houses to the bill ( H . R. 10881) to amend Title LX, chapter 3, of the Revised Statutes of the United States, relating to copyright, having met, after full and Congressional Record, XXII, Part 3, 3606, 3608. Ibid., 3609. Ibid., 3610. Ibid., 3611.

Passage of the Platt-Simmonds

Act

177

free conference have agreed to recomnjiend and do recommend to their respective Houses as fbllows: That the House recede from its disagreement to the amendment of the Senate numbered I and agree to the same with an amendment as followsj: Insert in lieu of said amendment the words "photograph, chrome or lithograph"; and the Senate agree to the same. That the House recede from its disagreement to the amendment of the Senate numbered II, and agree to the same with an amendment as follows: Insert in lieu of said amendment the words: "or from pegatives or drawings on stone made within the limits of the United States, or from transfers made therefrom"; and the Senate agree to the same. ! That the House recede from its disagreement to the amendment of the Senate numbered Iljl, and agree to the same with an amendment as follows: Insert in lieu of said amendment the words "chrome-lkhograph of photograph" ; and the Senate agreed to the same. That the House recede from its disagreement to the amendment of the Senate numbered IV, and agree to the same with an amendment as follows: Insert in lieu of said amendment the words "negative or drawings on stone"; and the Senate agree to same. That the House recede from its disagreement to the amendments of the Senate numbered VII, VIII, IX, X and XI, and agree to the same. That the House recede from its disagreement to the amendment of the Senate numbered XII, and agree to the same with an amendment as follows: Strike out of section 13 after the word "citizens" oh page 8, line 21, down to and including the word "arises" on page 9, line 2, and insert the following: "Or when such a foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require," And the Senate to agree to the same. As to the amendments of the Senate numbered V and VI, the committee is unable to agree.85 85 U. S. Congress, Journal of the House of Representatives, 2d Sess., Slst Cong., 346-347.

178

Passage of the Platt-Simmonds

Passage of the Platt-Simmdfids Act

Act

Senator Piatt submitted the identical report to the Senate. The House agreed to the report of its conferees by vote of 139 to 90 (with 100 not voting), and Simmonds moved that the House insist upon its disagreement to amendments V and VI, and ask a further conference with the Senate. The motion was agreed to after two minor interruptions on points of order which the Speaker refused to sustain. Simmonds, Buchanan and Cowles were reappointed as conferees, and the Senate informed of the action of House.86 Substantially the same procedure occurred in the Senate, which refused to recede from its amendments on a division requested by Senator Sherman.87 Amendment V was the Sherman amendment in its final form, which allowed the importation of books, maps, etc., upon payment of the duties imposed by law, and has been discussed above.88 Amendment VI was the one which allowed the importation of newspapers and periodicals, exempting them from the bill's prohibition of importation of copyrighted material. The second conference took place at 1:00 A.M. the night of March 3. The conferees reported as follows: j The committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate numbered V and VI, to the bill (H.R. 10881) to amend Title XL, chapter 3, of the Revised Statutes of the United States, relating to copyrights, having met, after full and free conference have agreed to recommend and do recommend to their respective Houses as follows: That the House recede from its disagreement to the amendments of the Senate numbered V and VI, and agree to the same with an amendment as follows: to wit: Strike out all of section 3, after the word "prohibited" in line 13, and insert in lieu thereof as follows: "Except in cases specified in paragraphs 512 to 516, inclusive, in section 2 of the act entitled 'An act to reduce the revenue and equalize the duties on imports, and for other purposes,' approved October 1, 1890; and except in the cases of persons purchasing for use and not for

sale, who import subject to the duty! thereon not more than two copies of such book at any one time; and except in the case of newspapers and magazines not containing in whole or in part matter copyrighted under the provisions of this act, unauthorized by the author, which are hereby exempted from prohibition of importation; Provided, nevertheless, That in the case of books in foreign languages, of which only translations in English are copyrighted, the prohibition of importation shall apply only to the translation of the same, and the importation of books in the original language shall be permitted." 89 Stripped of legal wording, this recommendation amounted to the House bill in its original wording, with a minor, concession in favor of amendment VI. Simmonds pointed this okit to the House, in the course of a final brief debate of forty minutes. He was supported by short statements from Breckinridge, Eitch and Cummings.90 Simmonds then moved the previous question, which was, Shall the House agree to the said report? It did so by vote of 127 to 77 with 125 not voting, and in this manne:- the House of Representatives passed the international copyright Act of 1891.91 The Senate managers did not have 'quite so easy a time of it, for they were compelled to request the Senate to recede from an amendment which it had twice approved, and Sherman was quick to point this out. He repeated his previous assertions that the object of this bill was to make copyright an exclusive monopoly, and he objected to the personnel of the j conference committee which had been made up of men opposed to the action of the Senate on that amendment. The change had, in fact, been brought about by a change of opinion on the part of Senator Hiscock, who felt compelled to explain his action: . . . But there is an interest that is entitled to be heard upon this great question, the printers; and they have been heard. In their judgment a bill ought not to pass here, the effect of which might be to transfer the publication "Ibid., 22$. This seems to have been Cummings' major effort, in spite ;of the exaggerated version of his role which he gave to his fellow union members. 91 Journal of the House of Representatives, 2d Sess., 51st Cong., 363. 00

Ibid., 348. Journal of the Senate, 2d Sess., Slst Cong., 218-219. Cf. supra, pp. 171-172.

179

180

Passage of the Plati-Simmonds

Act

of books, either of this country or of foreign authors to be sold here, to England, Germany, France, or the islands of the sea. The arguments which they have urged on us against it, the necessities which they have urged, were controlling upon the House conferees, and I do not hesitate to say that they have controlled my action in this matter.92 The Third conferee, Senator Gray, had not signed the report, and now stated that he felt the greed of the publishing interests in Whose favor the bill was watertight made it necessary for him to resist further compromise, all of which had already been on the part of the Senate. Senator Piatt defended the report as the only agreement that could be reached, and pointed out that failure to accept it would mean the defeat of the bill, since time was so short. (It was then about 2 A.M. of the last legislative day.) A vote was then taken, and the Senate agreed to the report by 27 to 19, thus passing the international copyright act of 1891.9S The Senate quickly disposed of three other pending bills, and then Senator Pasco at 2:25 A.M., moved to reconsider the vote on the copyright bill. Though Pasco explained his proposal briefly, there was no debate. Evidently the Senate must have been in utter confusion, for Pasco spoke amid constant appeals from the Presiding Officer for silence so the Recorder could hear, and the Sergeant-at-Arms had to; be called.94 A vote on the motion resulted in its defeat, 22 to 13, but the total number did not constitute a quorum, and the Presiding Officer had to issue a call. The call resulted in answers from fifty Senators, but instead of repeating the vote on Pasco's motion, the Senate considered an appropriations bill just received from the House. A delay of about three hours ensued before the Senate returned to the pending motion. Meanwhile, the record notes that the international copyright bill had been signed by the Speaker of the House and returned to the Senate, whereupon the Vice President had signed it.95 When Pasco finally secured time to discuss his motion, he 92 88

94

Congressional Record, XXII, Part 4, 3884-3885. Ibid., 3888.

Ibid. Ibid., 3905.

m

Passage of the Platt-Simtkonds Act

181

angrily objected to the fact that the bill had been signed while a motion was still pending. A lengthy discussion on the parliamentary propriety of this procedure ensued, during which the central issue of the bill itself became quite blurred. The discussion was halted briefly to act upon the agricultural appropriations bill. Meanwhile, Senator Spooner saw the "Vice President, who was not in the chair, and informed the Senate that the Vice President told him that he had signed the copyright bill along with a number of other last-minute acts, not knowing that a motion was pending.96 Since it was then 6:0G A.M., the Senate recessed, to resume at 9:00 A.M., on March 4 (still March 3, as a legislative day). When the Senate convened the next day, the pending motion was the first order of business. A quorum was not present at 9:00 A.M., but was found by about 10:30 A.M. Then Pasco's motion was defeated by a vote of 29 to 21, and the fight was over.97 The bill was laid before President Harrison, who signed it immediately. After considering the topic intermittently for fifty-five years, the Congress of the United States, on the last day and almost the last hour of the Fifty-first Congress, passed an international copyright act. "Ibid., 3909. ""Ibid., 3912.

Conclusion

CONCLUSION The subject—the now less thorny subject—of international copyright engaged for a century the attentions and passions of both American and British literary and publishing figures. In 1891 the most difficult step forward to a logical and civilized policy in regard to literary property was taken when the United States expressed in law a willingness, even if conditional, to acknowledge the rights of aliens. It settled temporarily the highly controversial status in the United States of alien literary and artistic property and the rights of alien producers of literature, drama and music. And in some minds the act of 1891 blotted out a national disgrace. The part played in the movement for revision by such men as the Putnams, Bowker and Curtis is a minor chapter in the history of patrician reform, that movement "from above downwards" distinguished by gentlemen of property and position disinterestedly seeking justice. At the same time, their work to secure an international;copyright law affords an interesting study of the American political process. The organization of a'! strong pressure group, the use of propaganda ("education") techniques, the enlisting on one's side of influential notables, and the tactic of setting up alliances with other groups to influence or procure legislation is not peculiar to the twentieth century. Revision of the domestic law brought the United States to a point which had been reached by France in 1810, and by Great Britain and most of the German states in 1837. Fifty-five years of effort on the part of individual workers and the work of successive leagues, clubs and committees had been necessary to achieve this fundamental position. Perhaps the United States lagged because international copyright was a new kind of ownership, involving, as we have seen, not only politics and economics, but also social and psychological factors quite complex's their nature. By the time America had decided to take its first step, the rest of the civilized world had united in the Berne Convention (1887). Even today, the United States cannot bring itself to take another 182

183

step and become signatory to the Berne Protocol. The story of our constant lag in copyright is a neglected phase of American history. Yet, culture and politics are always intimately connected, never more so than today, and it is worth the effort to try to impose the beginning of continuity upon the history of international copyright in America. The law of 1891 was not a new statute, but a series of amendments to sections of the general copyright law of 1870. The direct effects of its passage were immediate and obvious. Generally, it provided by the principle of reciprocity a chance to secure recognition of similar rights for Americans from foreign nations. In particular, it bettered literary relations with England. Income soon flowed to American authors from Great Britain, and vice versa. There were more authorized editions with complete and correct texts edited at leisure. On both sides of the Atlantic, the institution of branch houses of major publishing firms received encouragement. There was an increase in international literary collaboration, since it was now practical :o employ the services of the most authoritative experts wherever located. A drastic reduction in the number of "cheap books" ensued—a fact which must be considered a mixed blessing. There was, however, after 1891, a tendency to lower prices, since costs could be divided between two or more markets and there was no need to secure the highest possible profit on the first edition before the pirates stole the market. It must be noted that the above effects prevailed chiefly in the Anglo-American market, since works which demanded translation suffered from a time lag which made simultaneous publication difficult. Above all, American publishers were now in a position to give American authors better attention. One of the most striking features of the years before international copyright was the simple fact that publi. ;ers hesitated to print the works of native writers, for which they had to pay, when they had the best of Europe available for little or nothing. Literary beginners especially had no fair chance; publishers as a matter of course returned unopened hundreds of manuscripts. The situation explains the need for secondary occupations, usually public office, which plagued our

184

Conclusion

nineteenth century literati and stifled the genius of Hawthorne in the custom house. It accounts also for the dependence on English models. The oldest charge that American literature has had to meet is the reproach of imitation, of aping English models, and not always the best of these. A number of American authors did secure publication by forced compliance with what publishers knew would sell, and not because of any personal desire to ape English models. One hesitates to speculate, but it is impossible not to wonder what distinctive forms of prose, poetry and drama might have emerged, what genius was blighted, and what masterpieces were not produced because of trade dependence on piracy. International copyright was a necessary prerequisite before native authors, composers and dramatists could flourish in America. . The study of the movement for international copyright in America should be of special value for the literary historian and critic. Too many scholars have assumed that literary history can be adequately represented by a line between writer and reader. Actually, the pattern ;is more triangular, for with writer and reader one must include the whole complex organism of the book trade and the law under which it operated. Influence runs in both directions along each side jof the triangle, and instruments for.determining the force of the reciprocal influences are rare. This study may help to illustrate some of the more crude economic and legal facts which have been neglected realities of literary history. One can see, for j example, how centers of culture were determined not by some myth of "culture cities," but by the economics of transportation. One can see how improvements in the technology of printing coupled with the existing law led to cheap printing and killed the American novel for decades, while keeping alive books that might (and should) have died within a few years. This study may be of some assistance to the literary historian looking for circumstances and social conditioning, or trying to decide precisely why a particular author became "great" and widely disseminated in the nineteenth century. It should serve also to counterbalance the intensive study of pure form alone. One is at least led to wonder how much cheapness prevailed over aesthetics—a material concept largely neglected in the study of literary criticism. It was the

Conclusion;

185

prevalence of piracy, and the lack of {an international copyright law, which helped to dictate such matters of form as length of chapters and occurrence of climaxes, as well as the fondness for the short story. Finally, throughout the story of international copyright in America there runs the constant theme] of the influence of foreign literature on American culture—an influence conceived of as a force for good or for evil depending on the viewpoint of the protagonists, but never neglected. The flow of British, literature to the west certainly had some implications for our cultural history. Partisans, today as then, can still be grouped roughly into those who would follow Lionel Trilling in his statement that an acquaintance with the literature of England is part of any educated man's intellectual equipment, and those who would decry the baneful influence of an extranational culture which gave America a literary inferiority complex. It is not likely that this difference of opinion will ever be resolved, but the story of international copyright shows that nineteenth-century Americans were aware, perhaps more aware than we are, that :nuch of our language took its correctness from "The Queen's English," and that a good deal of our grammar, syntax, forms, constructions, proverbs and oaths owed its very existence to that lack of an international copyright law. James Russell Lowell had this in mind when he wrote: You steal Englishmen's books and think Englishmen's thought; | With their salt on your tail your wild eagle is caught; Your literature suits its each whisper and motion, To what will be thought of it over the ocean; His opinion hardly differs from the more politely expressed conclusion of a Merton Professor of Poetry at Oxford who recently stated that the United States was a monument to England, built largely on her language and examples, and able to achieve no glory in which England did not have a share. The literary relations between America and England have never been fully sur-

Ig6

Conclusion

veyed, but it seems likely that no attempt to do so can hope to be at all adequate or come to a correct understanding of the nature of the relationship unless it takes into account the movement for international copyright in; America. American literature, considered m itself, is still a bit too young to have a very lengthy history. American drama seems: to have sprung full-grown from the imagination, of Eugene O'Neill and is still able to remember its own origin. Yet, when the time comes, its history will be inadequately presented if one neglects an account of the struggle for an international copyright law.

APPENDIX TEXT OF THE SIMMONDS BILL

Be it enacted . . . That Section 4952 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4952. The author, inventor, designer o:-, proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print or photograph or negative thereof, or of a painting, erawing, chromp, statuary, statue, and of models,or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole right of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors and their assigns shall have exclusive rights to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States. SECTION 2. That Section 4954 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4954. The author, inventor, designer, if he be living, or his widow or children, if he be dead, shall have the same exc usive right continued for the further term of fourteen years, upon recording the title, of the work or the description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term; and such persons shall within two months of the date of said renewal cause a copy of said record to be published in one or more newspapers printed in the United States for the space of four weeks. SECTION 3. That Section 4956 of the Revised Statutes be, and the same is hereby amended, so that it shall read as follows: Section 4956. No person shall be entitled to a copyright unless he shall on or before the day of publication in this or any foreign country deliver at the Office of the Librarian of Congress, or deposit in the mail of the United States, addressed to the Librarian of Congress, at Washington, D. C, a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or chromo, or a description of the painting, drawing, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright, nor unless he shall also, not later than the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, at Washington, 187

Appendix

Appendix

D. C, or deposit in the mail of the United States, addressed to the Librarian of Congress, at Washington two copies of such chromo, print, photograph, or, in the case of a painting, drawing, statue, statuary, model or design for a work of the fine arts, a photograph of the same: Provided, That in the case of a book the two copies of the same required to be delivered or deposited as; above shall be printed from the type set within the limits of the United. States, or: from plates made therefrom. During the existence of such copyright the importation into the United States of any book so copyrighted, or any edition or editions thereof, or any plates of the same made from type set within the limits of the United States shall be, and it is hereby prohibited, except in cases specified in Section 2050 of the Revised Statutes of the United States and except in the case of persons purchasing for use and not for sale, who import not more than two copies of such book at any one time, in each of which cases the written consent of the proprietor of the copyright signed in the presence of two witnesses, shall be furnished with each importation: Provided, That any publisher of a newspaper or magazine may, without such consent, import for his own use, but not for sale, not more than two copies of any newspaper or magazine published in a foreign country: Provided, That in the case of books in foreign languages, of which only translations in English are copyrighted, the prohibition shall apply only to the translations of the same, and the importation of the books in the original language shall be permitted. . .

the deposit of two copies of such Other article made or produced in the United States; and the Secretary of the Treasury is hereby directed to prepare and print, at intervals of not more than a week, catalogues of such title entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails, and such weekly lists, as they are issued, shall be furnished to all parties desiring them, at the sum not exceeding $5 per annum; and the Secretary and the Postmaster-General are hereby empowered and required to make and enforce such rules and regulations as shall prevent the importation into the United States, exept under the • conditions above specified, of all articles copyrighted under this act during the term of copyright.

188

SECTION 4. That Section 4958 of the Revised Statutes be, and the same is hereby amended, so that it will read as follows: Section 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees: First. For recording the title or description of any copyright book or other article, 50 cents. Second. For every copy • under seal of such record actually given to the person claiming the copyright or his assigns, 50 cents. Third. For recording or certifying any instrument or writing for the assignment of copyright, $1. Fourth. For every copy of an assignment, $1. All fees so received shall be paid to the Treasury of the United States: Provided: That the charge for recording the title or description of any article entered for copyright, the production of a person not a citizen of the United States, shall be $1, to be paid as above to the Treasury of the United States, to defray the expenses of lists of copyrighted articles as hereinafter provided for. And it is hereby made the duty of the Librarian of Congress to furnish to the Secretary of the Treasury copies of the entries of the titles of all books and other articles wherein the copyright has been completed by the deposit of two copies of such book printed from type set within the limits of the United States, in accordance with the provisions of this act, and by

189

SECTION 5. That Section 4959 of the Revised Statutes be, and the same is hereby amended, so as to read as folljows: Section 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of | Congress, or deposit in the mail, addressed to the Librarian of Congress at Washington, D. C, a copy of every subsequent edition wherein any substantial changes shall be made: Provided, however, That the alterations, revisions, and additions made to books by foreign authors heretofore published, of which new editions shall appear subsequently to taking effect of this act, shall be held and deemed capable of being copyrighted as above provided for in this act, unless they form part of a series in course of publication at the time this act shall take effect. SECTION 6. That Section 4963 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4963. Every person who shall insert or impress such notice or words of the same purport in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shkll be liable to a penalty of $100, recoverable one-half for the person who; shall sue for such penalty and one-half to the use of the United States. SECTION 7. That Section 4964 of the Revised Statutes be, and the same hereby is amended, so as to read as follows: ] Section 4964. Every person who, after the recording of the title of any book and the depositing of the two copies of such a book, as provided by this act, shall, within the terms limited and without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two witnesses, print, publish, dramatize, translate, or import, or knowing the same to be so printed, published, dramatized, translated or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction.

Appendix

Appendix

SECTION 8. That Section 4965 of the. Revised Statutes.be, and the:same is hereby amended, so as to read as follows: Section 4965. If any person;after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, .or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this act shall within the term limited, and without the consent of the proprietor first obtained in writing, signed in the presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in the whole or in part or by varying the main design with the intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor of all the plates on which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit $1 for every sheet of the same found in his possession, either printed, copied, published, imported, or exposed for sale, and in case of a painting, statue, statuary, he shall forfeit $10 for every copy of the same in his possession or by him sold or exposed to sale; one-half thereof to the proprietor and one-half ito the use of the United States.

the grant of copyright, by the terms of which agreement the United States may at its pleasure become party to such agreement. The existence of either of these conditions shall be determined by the opinion of the Attorney General of the United States, whenever an occasion for such determination arises.

190

SECTION 9. That Section 4967 of the Revised Statutes be, and the same is hereby, amended, so as to read as follows: Section 4967. Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained shall be liable to the author or proprietor for all damages occasioned by such injury. SECTION 9. That Section 4971 of the Revised Statutes be, and the same is hereby repealed. SECTION 11. That for thd purposes of this act each volume of a book in two volumes or more, when such volumes are published separately and the first one shall not have beeti issued before this act shall take effect, and each number of a periodical, sljiall be considered an independent publication, subject to the form of copyrighting as above. SECTION 12. That this act shall go into effect on the 1st day of July A. D. 1890. SECTION 13. That this act shall apply to a citizen of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens, or when such a foreign state or nation permits to citizens of the. United States of America copyright privileges substantially similar to those provided for in this act, or when such foreign state or nation is a party to an international agreement which provides for the reciprocity in

191

TEXT OF THE CHACE-PLATT BILL

Be it enacted . . . That Section 4952 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4952. The author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph, or negative thereof, or of a painting, qlrawing, chromo, statue, statuary, and of the models or designs intended to be perfected as works of the fine arts, and the executors, administrators or assigns of any such person shall, upon complying with the provisions ejf this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing it or representing it or causing it to be performed or represented by others; and the authors or their assigns shall have exclusive right to dramatize or translate any of their works for which copyright shall have been obtained under the laws of the United States. SECTION 2. That Section 4954 of the Revised Sjtatutes be, and the same is hereby amended, so as to read as follows: Section 4954. The author, inventor, or designer, if '.he still be living, or his widow and children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured the second time, and complying with all regulations in regard to original copyrights, within six months before the expiration of the first term; and such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks. SECTION 3. That Section 4956 of the Revised Statutes be, and the same hereby is amended, so as to read as follows: Section 4956. No person shall be entitled to a copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress at Washington, D. C, a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo, or a description of the painting, drawing, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright, nor unless he shall j also, not later than the day of publication thereof in this or any foreign country,

192

Appendix

deliver.at the office of the Librarian of Congress, at Washington, D.C., or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, D: C, two copies of such copyright book, map, chart, dramatic or musical composition, engraving, chromo, cut, print, or photograph, or in the case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same; Provided, That in the case of a book, or other article, the two copies of the same required to be delivered or deposited as above shall be printed from type set within the limits of the United States, or from the plates made therefrom. During the existence of such copyright the importation into the United States of any book, or other article, so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set within the limits of the. United States, shall be, and is hereby, prohibited, except in the case.of persons purchasing for use and not for sale: Provided, nevertheless, That in the case of books in foreign languages, of which only translations in English are copyrighted, the prohibition of importation shall apply only to the translations of the same, and the importation of the books in the original language shall be permitted. SECTION 4. That Section 4958 of the Revised Statutes be, and the same hereby amended, so as to read as follows: Section 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees: .First. For recording the title or description of any copyright book or other article, fifty cents. Second. For every copy under seal of such record actually given to the person claiming copyright, of his assigns, fifty cents. Third. For recording and certifying any instrument for the assignment of copyright, one dollar. Fourth. For every copy of an assignment, one dollar. All fees so received shall be paid to the Treasury of the United States;. Provided, That the charge for recording the title or description of any article entered for copyright, the production of a person not a citizen or a resident of the United States, shall be one dollar, to be paid as above into the Treasury of the United States, to defray the expenses of lists of copyrighted'articles as hereinafter provided for. And it is hereby made the duty of the Librarian of Congress to furnish to the Secretary of the Treasury copies of the entries of titles of all books and other articles wherein the copyright has been completed by the deposit of two copies of such book printed from type set within the limits of the United States, in accordance with the provisions of this act, and by the deposit of two copies of such other article made or produced in the United States: and the Secretary of the Treasury is hereby directed to prepare and print, at intervals of not more than one week, catalogues of such title-entries for distribution to the collectors of the customs of the United States and to postmasters of all post-offices receiving foreign mails, and such weekly lists, as they are issued,

Appendix

193

shall be furnished to all parties desiring them, at ja sum not exceeding five dollars per annum; and the Secretary and the) Postmaster-General are hereby empowered and required to make and enforce such rules and regulations as shall prevent the importation into the United States, except upon the conditions above specified, or all articles prohibited by this act. SECTION 5. That Section 4959 of the Revised Statutes be, and the same hereby amended, so as to read as follows: Section 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congrsss, or deposit in the mail addressed to the Librarian of Congress at Washington, D. C, a copy of every subsequent edition wherein substantial charges shall be made, Provided, however, That the alterations, revisions, and additions made to the books by foreign authors, heretofore published, of which new editions shall appear subsequently to the taking effect of this act, shall be held and deemed capable of being copyrighted as above provided for in this act, unless they form a part of a series in course of publication at the time this act shall take effect. SECTION 6. That Section 5963 of the Revised Statutes be,'and the same hereby is amended, so as to read as follows: Section 4963. Every person who shall insert o impress such notice, or words of the same purport, in or upon any bookj map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the perse n who shall sue for such penalty and one-half to the use of the United Stajtes SECTION 7. That Section 4964 of the Revised |Statutes be, andthe same hereby is amended, so as to read as follows: Section 4964. Every person who, after the recording of the title of any book, and the depositing of the two copies of sudh a book as provided by this act, shall, contrary to the provisions of this act, within 'the term limited, and without the consent of the proprietor of the . copyright first obtained in writing, signed in the presence of two' or more witnesses, print, publish, dramatize, translate or import, or, knowing the same to, be printed, published, dramatized, translated or imported, sell or expose to sale, any copy of such book shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as ;may be recovered in a civil action by such proprietor in any court of competent jurisdiction. SECTION 8. That Section 4965 of the Revised Statutes be, and the same hereby is amended, so as to read as follows: Section 4965. If any person, after the recording of title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of

194

Appendix

fine arts, as provided by this act, shall within the term limited, contrary to the provisions of this act, and without the consent of the proprietor of the copyright, first obtained in writing, signed in the presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design with intent to evade the law, or knowing the same to be printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plate upon which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printed, printing, copied, published, imported, or exposed for sale, and in the case of a painting, statue, statuary, he shall forfeit ten dollars for every copy of the same in his possession or by him sold or exposed to sale; one-half thereof to the proprietor and one-half to the use of the United States. SECTION 9. That Section 4967 of the Revised Statutes be, and the same hereby is amended, so as to read as follows: Section 4967. Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained in writing, signed in the presence of two witnesses, shall be liable to the author or proprietor for all damages occasioned by the injury. SECTION 10. That Section 4971 of the Revised Statutes of the United States be, and the same is hereby, repealed. SECTION 11. That for the purpose of this act each volume of a book of two or more volumes, when such volumes are published separately take effect, and each number of a periodical, shall be considered an independent publication, subject to the form of copyrighting as above. SECTION 12. That this act shall go into effect on the first day of July, Anno Domini, eighteen hundred and ninety-one. SECTION 13. That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizen of the United States of America benefits of copyright on substantially the same basis as its own citizens. The existence of the condition aforesaid shall be determined by the President of the United States by proclamation made from time to time, as the purpose of this act shall require. TEXT OF THE PLATT-SIMMONDS ACT

An act to amend Title Sixty, Chapter Three, of the Revised Statutes of the United States, Relating to Copyrights. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Section forty-nine hundred

Appendix

195

and fifty-two of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4952. The author, inventor, designer] or proprietor of any book, map, chart, dramatic or musical compositioiji, engraving, cut, print or photograph or negative thereof, or of a paintihg,;, drawing, chromo, statue, statuary or models or designs intended to bej perfected as works of the fine arts, and the executors, administrators, or| assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of publishing, printing, reprinting, co:>njipleting, copying, executing, finishing, and vending the same; and in the case of dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the! United States. SECTION 2. That Section 59541 of the RJevised Statutes be, and the same is hereby amended, so as to read as follows: Section 4954. The author, inventor, or designer, if he still be living, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to the original copyrights, within six months before the expiration of the first term; and such person shall, within two months from the date of renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks. SECTION 3. That Section 4956 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4956. No person shall be entitled to ja copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, D. C, a printed copy of the title of the book, map, chart, dramatic or musical compositions, engraving, cut, print, photograph, or chromo, or a description of the painting, drawing, statue, statuiry, or a model or design for a work of the fine arts, for which he desires-a copyright, nor unless he shall also, not later than the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, D. C, two copies of such copyright, book, map, chart, dramatic or musical composition, engraving, chromo, print, cut or photograph, or in the case of a painting, drawing, statue, statuary, model or design for a work 1 Section 4953 pertains to the first term of twenty-eight years. It, and the other sections omitted here, were not changed by the act.

Appendix

Appendix

of the fine arts* a photograph of the same; Provided, That in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited as above shall be printed from type set without the limits of the United States, or from plates made therefrom, or from negatives, or drawings on stone within the limits of the United States; or from transfers made therefrom. During the existence of such copyright the importation into the United States of any book, chromo, lithograph, or phonograph, so copyrighted, or any edition or editions thereof, or any plates of the same, not made from type set, negatives or drawings on stone made, within the limits of the United States, shall be, and it is hereby, prohibited, except in cases specified in paragraphs 512 to S16 inclusive, in Section 2 of the act entitled "An Act to reduce the revenue and equalize the duties on imports, and for other purposes," approved October 1, 1890; and except in cases of persons purchasing for use and not for sale, who import not more than two copies of such book at any one time; and except in the case of newspapers and magazines not containing, in whole or in part, matter copyrighted under the provisions of this act, unauthorized by the author, which are hereby exempted from prohibition of importation; Provided, nevertheless, That in the case of books in foreign languages, of which only translations in English are copyrighted, the prohibition of the same, and the importation of books in the original language shall be permitted.

to prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to postmasters <jf all post-offices receiving foreign mails, and such weekly lists, as they are issued, shall be furnished to all parties desiring them, at the sum not exceeding five dollars per annum; and the Secretary and the Postmaster-General are hereby empowered and required to make and enforce such rules and regulations as shall prevent the importation into the United States, except under the conditions above specified,; of all articles copyrighted under this act during the term of copyright.

196

SECTION 4. That Section 4958 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees: First. For recording the title or description of any copyright book, or other article, fifty cents. Second. For every copy under seal of such record actually given to the person claiming copyright, ori his assigns, fifty cents. Third. For recording or certifying any instrument of writing for the assignment of a copyright, One dollar. Fourth. For every copy of: an assignment, one dollar. All fees so received shall be paid into the Treasury of the United States: Provided, That the charge for recording the title or description of any article entered for copyright, the production of a person not a citizen of the United States, shall be one dollar, to be paid as above to the Treasury of the United States, to defray the expenses of lists of copyright articles as hereinafter provided for. And it is hereby made the duty of the Librarian of Congress to furnish to the Secretary of the Treasury copies of the entries of the titles of all the books and other articles wherein the copyright has been completed by the deposit of two copies of such book printed from type set within the limits of the United States, in accordance with the provisions of this act, and by the deposit of two copies of such other article made or produced in the United States; and the Secretary of the Treasury is hereby directed

197

SECTION 5. That Section 4959 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of mail, addressed to the Librarian of Congress, at Washington, D. C, a copy of every subsequent edition wherein any substantial changes shall be made: Provided, however, That the alterations, additions, and revisions made to books by foreign authors heretofore published, of which new editions shall appear subsequently to the taking effect of this act, shall be held and deemed capable of being copyrighted as abo4e provided for in this act, unless they form part of a series in the course of publication at the time this act shall take effect. SECTION 6. That Section 4963 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving, photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States. SECTION 7. That Section 4964 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4964. Every person who, after the recording of the title of any book, and the depositing of two copies of such book, as provided by this act, shall, contrary to the provisions of this1 act,..within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in the presence of two or more witnesses, print, publish, dramatize, translate, or import, or knowing the same to be printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, ahd: shall also forfeit and pay such damages as may be recovered in a civil' action by such proprietor in any court of competent jurisdiction.

198

Appendix

SECTION-8. That Section 4965 of the Revised Statutes be, and the same is hereby amended, so as to read as follows: Section 4965. If any person, after the recording of the title of any mapy chart, dramatic or musical composition, print, cut, engraving, or photograph, or chronio, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected as a work of the fine artsy as provided by this act, shall within the term limited, contrary to the provisions of this act, and without the consent of the proprietor first obtained in writing, signed in the presence of two witnesses, engrave, etch, work, copy, print, publish, dramatize, or translate, or import, either in whole or in part, or by varying the; main design with intent to evade the law, or knowing the same to be printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or any other article aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, and in the case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy; of the same in his possession, or by him sold or exposed to sale; one-half thereof to the proprietor and the other half to the use of the United States. SECTION 9. That Section 4967 of the Revised Statutes be, arid the same is hereby amended, so as to read as follows: Section 4967. Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained, shall be liable to the author or j proprietor for all damages occasioned by such injury. SECTION 10. That Section 497P of the Revised Statutes be, and the same is hereby repealed. SECTION 11. That for the purposes of this act each volume of a book in two or more volumes, when such volumes are published separately and the first one shall not have been issued before this act shall take effect, and each number of a periodical, shall be considered an independent publication, subject to the form of copyrighting as above. SECTION 12. That this act shall go into effect on the first day of July, anno domini, eighteen hundred and ninety-one. 2

Section 4971 stated, "That nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, composed or made by any person not a citizen of the United States or resident therein."

Appendix

]

199

SECTION 13. That this act shall only apply to a citizen of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens, or when such a foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require.

Bibliography BIBLIOGRAPHY 1 •.,! The literature of copyright is quite extensive and a complete bibliography •(if it, existed) would be a monumental work. Unfortunately, there are very few general bibliographies, and even in these very little matter on the movement for international copyright in America can be found. The. most extensive and recent compilation is Henrietta Mertz, Copyright Bibliography .(Washington,. D. C.: Library of Congress, 1950), a volume designed primarily to serve practicing lawyers by listing works, in both English and foreign languages, which are available in the Library of Congress. Items are listed alphabetically by author or title and no attempt has been made to index or classify the entries. The volume was the first step in a projected complete bibliography, which seems to have lapsed since the retirement of Miss Mertz. The list of 1,500 titles compiled by the first Register of Copyrights, Thorvald Soldberg, and printed in Richard R. Bowker, Copyright, Its Laws and Literature (New York: Office of Publishers' Weekly, 1886) is now out of date, but of some value for the historian because of its analysis of nineteenth-century periodical literature. This work should be consulted by those who wish a more complete listing than the articles given below. No other worthwhile general bibliographies exist. Literature on the legal aspects, and relating to court decisions on copyright, is vast and readily available; but the historical introductions in legal treatises are sketchy, inaccurate, and almost worthless. They are hardly more than chronological lists of laws and cases, mostly on domestic copyright, with little or no treatment of the political, social and economic background of interest to the historian. American works on copyright law do not devote more than a paragraph or so to the law of 1891 and the 1

The generic term, "copyright," embraces such a broad range that certain distinctions must be made before a bibliography for this essay is attempted. The time limits of the study exclude modern copyright literature. Domestic copyright and the ramifications of legal technicalities are of incidental interest only insofar as they provided a situation which called for revision of the law, or insofar as they can serve as illustrations or parallels. Every legal phase of copyright has been treated exhaustively elsewhere, and the author of this study has tried to avoid wandering from the historical into the legal domain. Since the United States participated only as an observer at the Berne Convention, and not at all in the other similar international congresses, literature on this phase of international copyright has been held to a minimum. We are concerned chiefly with matter which pertains to the struggle for the passage of a federal law on international copyright within the United States between 1836 and 1891.

200

\

201

story of its passage. The broad aspects of copyright as an international legal and political problem have been treated in Stephen Ladas, The International Protection of Literary and Artistic Property (New York: Macmillan, 1938). He touches on the participation of the United States in the Berne Convention, but he barely mentions the struggle for revision of the federal law; and his bibliography, though extensive, does not contain a single work treating the movement for international copyright in the United States. The early history of copyright is to be traced only through incidental references in classical and medieval literature. George Haven Putnam has selected the most important items relating to the first stages of printing privileges and copyrights and included them in Authors and Their Public in Ancient Times (New York: G. P. Putnam's Sons, 1908), and in Books and Their Makers in the Middle Ages (2 vols.}, New York: G. P. Putnam's Sons, 1898). The foundation for a bibliography of copyright in England is — — e>~—j" given in Harry Ranson, The First Copyright Statute (Austin: University of Texas Press, 1956). He states that no adequate bibliography for Engirt, !»... and —i practice !••---exists, •- though scholars ' lish law at the University of Texas plan to compile one. The present list is valuable, up to the nineteenth century. •D.-.t—j R. T> Bowker, T>-.-I_- Copyright, ^ • . . . - Its . —History • Richard and /fj -.» Law ~~.~ (Boston: IXJUBIUU, Houghton xj.uugw.uu Mifflin Co., 1912) included one chapter on bibliography, but even he could list very little other than Soldberg's compilation and some periodical articles The movement for international copyright Jin America centered around attempts to secure the passage of a suitable |aw in Congress. Hence, for the period 1836-1891, the student must follow the Journal of the Senate, the Journal of the House of Representatives, Ithe „.^. Globe, ^.^^^, and
202

Bibliography

Cooper and others," printed without signatures in Congressional Globe, Vol. 24, Part 3, p. 1832. After : the Civil War a number of committee reports were published; seven important ones are listed below. Although the movement for international copyright resulted in much writing, no suitably relevant book emerged during the controversy, i Indeed, the first work in the English language devoted even to the law of international copyright did not appear till 1906. Since then, authors have explored the legal implications of the law of 1891, but no work on its history exists. Contemporary discussion was carried on largely through pamphlets and articles in periodicals. The pamphlets most useful for the historian are: Francis Lieber, On International Copyright (New York: Wiley & Putnam, 1840); George H. Putnam, International Copyright (New York: G. P. Putnam's Sons, 1878) ; Robert Pearsall Smith, International Copyright (London: Ballantyne, Hanson & Co., 1886) ; and Henry Van Dyke, The National Sin of Literary Piracy (New York: C. Scribner's Sons, 1888). Four other pamphlets are included in George H. Putnam, The Question of Copyright (New York: G. P. Putnam's Sons, 1891). The periodical literature is amazing in its extent. The people concerned with the movement were authors, journalists, editors and publishers, possessing unique opportunities for dissemination of their opinions. The use of "boilerplate" has been explained in the text, and at one time or another articles for and against international copyright appeared in every major periodical of the nation. The list below contains only a partial selection, intended to illustrate the types of articles and the range of personages involved. Publishers' Weekly deserves special mention as the magazine which devoted most space to copyright. Its editor, the ardent international copyright enthusiast Richard Rogers Bowker, devoted an average of an article a week to the cause. Thfere were thirty-three articles in the very first volume (1872), and Bowker kept the pages of the Weekly sprinkled with every sort of item on international copyright, even though most were only a page or two in length (which brevity is not surprising considering the nature and format of the periodical). The items included editorials, letters from all sorts of interested parties, historical surveys, texts of American and English laws, petitions, bills and proposals, reprints from other sources, and book reviews where appropriate—almost a thousand in number! No attempt has been made here to furnish a detailed list of these items. Since the movement at: times took on the nature of a crusade on the part of certain individuals, autobiographies, memoirs and biographies of its leaders reveal details and motivation which could not otherwise be known. The usual precautionary measures must be taken, but such information is particularly necessary in the case of the Putnams and Bowker, for whom international copyright was an intensely personal issue. Their warmth was equalled by their great antagonists, the Harper brothers, and also by some of their less important contemporaries. The lives and letters of noted authors, who took a personal interest in international copyright because of

Bibliography

203

some experience of injustice, are informative on details of assistance which they gave to the movement, and for sampling contemporary opinion of American and English literati on copyright. Almost every publishing firm or publisher has issued some sort of centennial or commemorative volume or a printed account of the firm's achievements. From these may be gleaned items on the position of the trade in the movement. More general works on the history of printing, on the book trade, and on the story of American literary taste supply useful background and description of the economic and social atmosphere in which the contest was waged. Such works ijive insight into the attitude of politicians and general public toward international copyright. Above all, they describe "The Game" of piracy. CONGRESSIONAL REPORTS

! U. S. Congress. House. Committee on the Judiciary. Report to Accompany H. R. 2418 submitted by Mr. Dorsheimir. Washington, D, C.: 48th Cong., 1884, Report No. 189. . Report to Accompany H. R. 8715 submitted by Mr. Collins. Washington, D. C.: SOth Cong., 1888, Report No. 1875. ; Report to Accompany H. R. 6941 submits•ed by Mr. Adams. Washington, D. C.: 51st Cong., 1890, Report No. 65. -. Report to Accompany H. R. 10881 submitted by Mr. Simmonds. Washington, D. C.: 51st Cong., 1890, Report No. 2041. U. S. Congress. Joint Committee on the Library. Report to Accompany H. R. 779 submitted by Mr. Baldwin. Washington, D. C.: 40th Cong., 1868, Report No. 16. U. S. Congress. Senate. Committee on Patents. Report to Accompany S. 534 and S. 2498 submitted by Mr. Chace. Washington, D. C.: 50th Cong., 1888, Report No. 622. . Report to Accompany Bills S. 232 and S. 2221 submitted by Mr. Piatt. Washington, D. G : 51st Cong., 1890, Report No. 142. BOOKS

Adams, George P. (ed.). Contemporary American Philosophy. 2 vols. New York: Macmillan, 1930. Allen, Hervey. Israfel, the Life and Times of Edgar Allan Poe. New York: Farrar & Rinehart, 1934. American Copyright Club. An Address to the American People. New York: The Club, 1843. Baker, Elizabeth F. Displacement of Men by Machines: the Effects of Technological Change in Commercial Printing. New York: Columbia University Press, 1933. Bancroft, George. Literary and Historical Miscellanies. New York;: Harper & Brothers, 1855.

204

Bibliography

Bayless, Joy. Rufus Wilmot Griswold. Nashville, Tenn.: Vanderbilt University Press, 1943. Bemis, Samuel Flagg. The American Secretaries of State and Their Diplomacy. 10 vols. New York: Knopf, 1927-1929. Bennett, H. S. English Books and Readers: 1475-1557. Cambridge; The University Press, 1952. : Bonal, Alphonse. Institutions Theologiae. 8 vols. Tolosae: Apud Douladouse, .1882. Bowker, Richard Rogers. Copyright, Its History and Its Law. Boston: Houghton, Mifflin, 1912. Bradsher, Earl L. Mathezv Carey. New York: Columbia University Press, 1912. Brooks, Van Wyck and Otto Bettmann. Our Literary Heritage. New York: E. P. Dutton & Co., 1956. Burlingame, Roger. Of Making Many Books. New York: Charles Scribner's Sons, 1946. Cathrein, Victor. Philosophia Moralis. Friburgi Brisgovia: Sumptibus Herder, 1900. Chesterton, Gilbert Keith. Charles Dickens. London: Methuen & Co., Ltd., 1925. Clark, Barrett H. and George Freedley (eds.). A History of Modern Drama. New York: D, I Appleton-Century Co., 1947. Clemens, Samuel and Brander Matthews. American Authors and British Pirates. New York: Ainerican Copyright League, 1888. Connell, Francis. Outlines of Moral Theology. Milwaukee: Bruce Publishing Co., 1953. Coulter, E. Merton. The Confederate States of America. Baton Rouge, La.: Louisiana State University Press, 1950. Davis, Elmer. History of the New York Times. New York: The New York Times, 1921. Derby, J. C. Fifty Years among Authors. New York: G. W. Carleton & Co., 1884. Dickens, Mamie (ed.). The Letters of Charles Dickens. London: Macmillan & Co., n.d. Disher, M. Wilson. Melodrama. London: Rockcliff, 1954. Dopp, Herman. La Contrefagpn des Livres Francais en Belgique. Louvain: Uystpruyst, 1932. Dreier, Thomas. The Power of Print—and Men. New York: Mergenthaler Linotype Co., 1936. Drone, Eaton S. A Treatise on the Law of Property in Intellectual Productions. Boston: Little, Brown & Co., 1879. Duniway, Clyde Augustus. The Development of Freedom of the Press in Massachusetts. New York: Longmans, Green & Co., 1906. Evans, Charles. American Bibliography. 12 vols. Chicago: Privately Printed, 1903-1934.

Bibliography

205

Fleming, E. McClung. R. R. Bowker, Militant I Liberal. Norman, Okla.•:'. University of Oklahoma Press, 1952. i Ford, Worthington C. The Boston Book Markkt. Boston: Club of Odd Volumes, 1917. Friedel, Frank. Francis Lieber, Nineteenth Century Liberal. Baton Rouge, La.: Louisiana State University Press, 194f. Genicot, Edouard. Institutiones Theologiae Moralis. 3 vols. Bruxellis: Albert Duvit, 1922. Gohdes, Clarence. American Literature in Nineteenth-Century. England. New York: Columbia University Press, 1944. Goodrich, G. G. Recollections of a Lifetime. 2 vols. New York: Miller, Orton & Mulligan, 1856. Gordon, George Stuart. Anglo-American Literary Relations. London: Oxford University Press, 1942. | Gregory, John M. A New Political Economy. New York: American Book Co., 1882. Hale, Edward Everett. James Russell Lowell and His Friends. Boston: Houghton, Mifflin & Co., 1901. Hamilton, John C. (ed.). The Works of Alexander Hamilton. 7 vols. New York: Charles S. Francis & Co., 1850. Handlin, Oscar. Immigration as a Factor in American History. Englewood Cliffs, N. J.: Prentice-Hall, 1959. Harmon, Francis B. The Social Philosophy of \the St. Louis Hegelians. New York: n.p., 1943. Harper, J. Henrv. The House of Harper. New York: Harper & Bros., 1912. Harper, Joseph. / Remember. New York: Harper, 1934. Harrington, John H. The Production and Distribution of Books in Western Europe to the year 1500. Ms., Privately Circulated, 1956. Hart, James D. The Popular Book. New York: Qxford University Press, 1950. Hewitt, Barnard. Theatre U. S. A. New York: McGraw-Hill Book Co., 1959. Holloway, Emory. Whitman. New York: Knopf, 1926. Holt, William S. Treaties Defeated by the Senate. Baltimore: Johns Hopkins Press, 1933. Hopkins, Charles Howard. The Rise of the Social Gospel in American Protestantism, 1865-1915. New Haven: Yale University Press, 1940. Hornblow, Arthur. A History of the Theatre in America. Philadelphia: J. B. Lippincott Co., 1919. Hughes, Glenn. A History of the American Theatre. New York: Samuel French, 1951. Hyslop, James H. The Elements of Ethics. New York: Charles Scribner's Sons, 1895. Iorio, Thomas. Theologia Moralis. 3 vols. Neopoli: M. D'Auria, 1954.

206

Bibliography

Johnson, Edgar. Charles Dickens. 2 vols. New York: Simon & Schuster, 1952. Ladas, Stephen. The International Protection of Literary and Artistic Property. New York: Macmillan, 1938. Lea, Henry Carey. One Hundred and Fifty Years of Publishing. Philadelphia : Lea & Febiger, 1935. Lehmann-Haupt, Hellmut. The Book in America. New York: R. R. Bowker Co., 1951. Lehmkuhl, Augustin. Theologia Moralis. 3 vols. Friburgi Brisgovia: Sumptibus Herder, 1887. Lodge, Henry Cabot. Early Memories. New York: Charles Scribner's Sons, 1913. Lowell, James Russell. The Pioneer. New York: Scholars' Facsimiles and Reprints, 1947. McMurtrie, Douglas C. A History of Printing in the United States. New York: R. R. Bowker, 1936. Matthews, Brander. American Authors and British Pirates. New York: American Copyright League, 1899. . Cheap Books and Good Books. New York: American Copyright League, 1888. May, Henry F. Protestant] Churches and Industrial America. New York: Harper & Brothers, 1949. Mecklin, John H. An Introduction to Social Ethics. New York: Harcourt, Brace & Co., 1920. [ Merkelback, Henri. Summa Theologiae Moralis. 3 vols. Parisiis: Typis Desclee, 1931-1933. \ Miller, Hunter (ed.). Treaties and Other International Acts of the United States of America. 3 vols. Washington, D. C.: G.P.O., 1931. Miller, Perry. The Raven and the Whale. New York: Harcourt, Brace & Co., 1956. Milton, John. Areopagitica. New York: P. F. Collier & Son, 1909. Mott, Frank Luther. Golden Multitudes. New York: Macmillan, 1947.. Nevins, Allan. Grover Cleveland. New York: Dodd, Mead & Co., 1932. . Letters of Grover Cleveland. Boston: Houghton, Mifflin Co., 1933. Nqldki, Henri. Summa Theologiae Moralis. 3 vols. Oeniponte: Sumptibus et Typis Feliciani Rauch, 1941. Norton, Charles Eliot (ed.). The Letters of James Russell Lowell. 2 vols. London: Osgood, Mcllvaine & Co., 1894. Oliphant, Mary C. Simms (ed.). The Letters of William Gilmore Simms. 5 vols. Columbia, S. C.: University of South Carolina Press, 1952. Oswald, John Clyde. Printing, in the Americas. New York: The Gregg Publishing Co., 1937. Oxnam, G. Bromley. Christian Values and Economic Life. New York: Harpers, 1954. Page, Walter Hines, A Publisher's Confession. New York:, Doubleday, Page & Co., 1905.

Bibliography

207

Paine, Albert Bigelow. Mark Twain. New Yorki Harper & Brothers, 1912. Parrington, Vernon L. Main Currents in American Thought. 3 vols. New York: Harcourt, Brace, 1939. Plant, Marjorie. The English Book Trade. New York: R. R. Bowker Co., 1939. Porter, Noah. The Elements of Moral Science. New York: Charles Scribner's Sons, 1885. Powell, J. H. The Books of a New Nation. Philadelphia: University of Pennsylvania Press, 1957. Prummer, Domincus. Manuale Theologiae Moralis. 3 vols. Barcelona: Herder, 1945. Putnam, George Haven. Authors and Their Public in Ancient Times. New York: G. P. Putnam's Sons, 1908. j . Books and Their Makers in the Middle Ages. 2 vols. New York: G. P. Putnam's Sons, 1898. j . George Palmer Putnam: A Memoir. New York: G. P. Putnam's Sons, 1912. . The Question of Copyright. New York: G. P. Putnam's Sons, 1891. Randel, William P. Edward Eggleston. New York: King's Crown Press, 1946. Ransom, Harry. The First Copyright Statute. Austin: University of Texas Press, 1956. Regatillo, Edward and Marcellino Zalba. Theologiae Moralis Summa. 3 vols. Matriti: Biblioteca de Autores Christianos, 1953. Reyburn, Hugh A. The Ethical Theory of Hegel. Oxford: Clarendon Press, 1921. Riegel, Robert E. Young America. Norman, Okla.: University of Oklahoma Press, 1949. Rubin, Joseph Jay (ed.). Walt Whitman of the New York Aurora. State College, Pa.: Bald Eagle Press, 1950. Ryan, John K. (ed.). Philosophical Studies in Honor of Very Rev. Ignatius Smith. Westminster, Md.: Newman Press, 1952. Sabetti, Aloysio. Compendium Thologiae Moralis. Ratisbonae: Fr. Pustet et Co., 1892. Saveth, Edward N. Understanding the American Past. Boston: Little, Brown & Co., 1954. Scudder, Horace Elisha. James Russell Lowell. 2 vols. Boston: Houghton, Mifflin, 1901. Shard, Sigmund. The Study of American Literature. Philadelphia: University of Pennsylvania Press, 1949. Sheehan, Donald. This Was Publishing. Bloomington, Ind.: Indiana University Press, 1952. Shrove, Raymond H. Cheap Book Production in the United States, 1870 to 1891. Urbana, 111.: University of Illinois Library, 1937. Siebert, Frederich S. Freedom of the Press in England: 1476-1776. Urbana, 111.: University of Illinois Press, 1952.

208

Bibliography

Silver, Rollo. The Boston Book Trade. New York: New York Public Library, 1949. Spencer, Herbert. Principles of Ethics. New York: D. Appleton & Co., 1891. Spiller, Robert E. (ed.). Literary History of the United States. 3 vols. New York: Macmillan, 1948. Stanwood, Edward. American Tariff Controversies in the Nineteenth Century. 2 vols. Boston: Houghton, Mifflin, 1903. Stedman, Edmund C. and Ellen M. Hutchinson (eds.). A History of American Literature. 11 vols. New York: William Evarts Benjamin, 1894. Steinberg, S. N. Five Hundred Years of Printing. Edinburgh: R. & R. Clark, Ltd., 19SS. Stevens, George A. New York Typographical Union No. 6. Albany: J. B. Lyons Co., 1913. Trent, William Peterfield et alii (eds.). The Cambridge History of American Literature. 4 vols. New York: G. P. Putnam's Sons, 1921. Triibner, Nicholas. Trubner's Bibliographical Guide to American Literature. London: Trubner, 1859. Van Dyke, Henry. The National Sin of Literary Piracy. New York: Charles Scribner's Sons, 1888. Van Nostrand, David. A Century of Book Publishing. New York: D. Van Nostrand, 1948. Vermeersch, Arthur. Epitome Juris Canonici. 3 vols. Mechliniae: Dessain, 1946. Warfel, Harry R. Noah Webster. New York.: Macmillan, 1936. Wayland, Francis. The Elements of Moral Science. London: The Religious Tract Society, 1835. ! Webster, Samuel C. Mark Twain, Business Man. Boston: Little, Brown & Co., 1946. Winship, George P. The Cambridge Press, 1638-1692. Philadelphia: University of Pennsylvania Press, 1945. Winterich, John T. Early American Books and Printing. Boston: Houghton, Mifflin Co., 1935. Wittenberg, Philip. The Protection and Marketing of Literary Property. New York: J. Messner, Inc., 1937. Wittke, Carl. Refugees of Revolution. Philadelphia: University of Pennsylvania Press, 1952. Wolfe, Theodore. Literary Haunts and Homes. Philadelphia: Lippincott, 1898. Wright, Louis B. The Cultural Life of the American Colonies. New York: Harper, 1957. Wright, Thomas Goddard. Literary Culture in Early New England. NewHaven: Yale University Press, 1920. Wroth, Lawrence C. The American Bookshelf, 1775. Philadelphia: University of Pennsylvania Press, 1934.

Bibliography

209

-. The Colonial Printer. Portland, Maine: t h e Southworth-Authoensen Press, 1938. ! • ARTICLES

•

Abbott, Benjamin V. "The Progress of Copyright Law," Popular Science Monthly, XX (1882), 340-347. Bader, Arno L. "Frederick Saunders and the Early History of the International Copyright Movement in America/'V Library Quarterly, VIII (1938), 25-39. Barnard, Charles. "An Author's Plea for Copyright," The Critic, IV (1884), 53-54. Barwick, G. F. "The Laws Regulating Printing and Publishing in France," The Library, XIV(1915-1917), 69-107. Bowker, Richard Rogers. "The Literature of Copyright," Library Journal, XLVII (1911), 492-496. Charvat, William. "Literary Economics and Literary History," English Institute Annuals (1949), 73-91. Clemens, Samuel L. "American Authors and British Pirates," New Princeton Review, V (1888), 47-65. Curtis, George William. "International Copyright," The Critic, XVII (1890), 135-136. Dozer, Donald Marquand. "The Tariff on Books," Mississippi Valley Historical Review, XXXVI (1949), 73-96. Eggleston, Edward. "The Blessings of Piracy/'' Century Magazine, New Series I (1881), 942-945. Friedel, Frank. "Lieber's Contribution to the International Copyright Movement," Huntington Library Quarterly, VIII (1945), 200-209. Gilder, Richard Watson. "Our Sins Against France," Century Magazine, XXXIX (1890), 792-793. Godkin, Edwin L. "Who Owns An Author's Ideas," The Nation, IV (1867), 520-522. Hale, Edward Everett. "A Market for Books,' The Forum, VII (1889), 481-487. Hanson, James C. "Thorvald Solberg, the First Register of Copyrights," Scandinavia, I (1924), 75-78. Holt, Henry. "The Recoil of Piracy," The Forum, VI (1888), 27-47. Johnson, Robert Underwood. "International;Copyright," The Critic, XVIII (1891), 187-188. Keratry, Emile de. "A Plea for Copyright," North American Review, CL (1890), 106-109. Kouwenhoven, John. "Cooper and the American Copyright Club: an Unpublished Letter," American Literature, XIII, 265. Lieber, Francis. "On Literary Property," North American Review, LII (1841), 385-404.

210

Bibliography

Lansdale, Maria Honor. "Life-work and Homes of Richard Watson Gilder," Century Magazine, LXXXI (1910), 716-733. Lathrop, George Parsons. "Should Foreign Authors be Protected?" The Forum, I (1886), 495-505. Lodge, Henry Cabot. "International Copyright," Atlantic Monthly, LXVI (1890), 264-270. Lowell, James Russell. "International Copyright," The Critic, VIII (1886), 119-123. —• . "Topics of the Times," Century Magazine, New Series, X (1886), 161-162. McClurg, Alexander. "Justice to Authors," The Dial, VII (1886), 5-9. Mackensie, J. S. "The Relation between Ethics and Economics," International Journal of Ethics, III (1893), 281-308. Mathews, Cornelius. "International Copyright," Southern Quarterly Review, IV (1843), 1-46. Matthews, Brander. "Richard Watson Gilder," North American Review, CXCI (1910), 38-48. Pacey, W. C. Desmond. "Washington Irving and Charles Dickens," American Literature, XVI (1944), 332-339. Parton, James. "International Copyright," Atlantic Monthly, XX (1867), 430-451. Pforzheimer, Walter. "Copyright and Scholarship," English Institute Annual (1941), 164-199. Prime, Samuel Irenaeus. "The Right of Copyright," Putnam's Magazine, XI (1868), 635-637. ; Randall, David. "Waverly in America," The Colophon, New Series I (1935), 39. Rawley, James A. "An Early History of the International Copyright Movement," Library Quarterly, XI (1941), 200-206. Rice, Allan Thorndike. "Anglo-American Copyright," North American Re•••• view, CXLVI (1888),; 67-85. Simms, William Gilmore. "International Copyright Law," Southern Literary Messenger, X (1844), 7-17; 137-151; 449-469. Smith, Robert Pearsall. "An Olive Branch from America," Nineteenth Century, XXII (1887), 601-624. Spencer, Benjamin T. "The Smiling Aspects of Life and a National American Literature," English Institute Annual (1949), 117-146. Van Dyke, Henry. "As a Moral Force in Politics," Century Magazine, LXXIX (1909), 627-628.

INDEX Act of Anne, 9 ff., 26 Adams (Rep.), George, 153, 165 Adams, Isaac, 29 Adams, John Quincy, 76 Adams Report, 165 Alcott, Louisa May, 50 Aldrich, Thomas Bailey, 86 American A u t h o r s Copyright League, 120 ff., 138, ISO American Copyright Club, 70 ff. American International Copyright Association, 44 American Library Association, 158, £30 American P u b l i s h e r s Copyright League, 149 , ff., 159, expenditures, 156 Anne, Queen, See Act of Anne Appleton & Co., 76 Appleton, George S., 76 Appleton, William H., 150 Archer (Rep.), William, 106 Areopagitica, 7 Arnell (Rep.), Samuel* 89 Arthur, President, 126 Authors' incomes, 49-50 Authors' Readings, 160 ff. Bader, Arnold, 41 Baird, Henry Carey, 143 Baldwin (Rep.), John, 89 Baldwin Report, 89 ff. Bancroft, George, 67, 139-140 Barnes, A. S. & Co., 76 Beek Bill, 104 Berne Copyright Convention, 133 ff. Bohn, Henry, 50 "Boilerplate," 161-163 Bowker, Richard Rogers, 107 ff., 122, 139, 146 Bos: A Masque Phrenologic, 60 Bradford, Alexander, 70 Breckinridge (Rep.), W. C. P., 153, 155, 165, 168 Breckinridge. Bill, 153 Briggs, Charles, 70 Brockaway, John, 76 Bryant, William Cullen, 37, 42, 44, 66, 70-71, 73-77, 87-88 Bucceroni, Gennaro, 22

Buchanan j(Sen.), James, 43, 53, 68 Bulwer-Lytton, Edward, 36, 42, 68 Butler, E. H. & Co., 35 Butterwortfa Bill, 165 Byrd, William, 16 i

Cambreling (Rep.), Churchill, 43 Carey & Hbrt, 36, 79 Carey, Matthew, 35-36, 39 Caritat Catalogue, 12 Carlyle, Thomas, 42, 68 Carter, T. H. & Co., 76 Caxton, 3-4 "The Centurion," See Mathews, Cornelius Chase, Senator, 125, 136, 146, 154-155 Chace Bill !(I), 136 ff. Chace Bill J(II), 146 ff.; text of, 192 ff.; progress in Senate, 154 ff. Chace Report, 146 Chapbook trade, 33 "Cheap books," 94 ff.; effects of, 99100 Chesterton, Gilbert Keith, 61 Chicago Trade and Labor Assembly, 125 j Clark, Louis Gaylord, 64, 65, 67, 72 Clark, Willis G., 41 Clay Bill, 43 Clay (Sen.), Henry, 42-43, 48, 54, 56,68 Clay Report, 43 Clemens, Samuel, 49, 140, 159 Cleveland, ; President Grover, 147, 154, 159 Clymer, George, 29 Collins Bill, 119 ff. Collins (Rep.), Patrick Andrew, 119, 123, 155 Collins Report, 155 Colonial fiction, 14 Colonial Press, 10 ff.; catalogues, 1213; output, 11 ff. Columbia Typographical Society, 53 "Common law" for printing, 6 Confederate States of America, copyright in, 84 Conference Committee of AACL and APCL, 150 ff.

211

212

Index

Index

Congressional Conference Committee, 176 ff. Connell, Francis, 22 Cooper, James Fenimore, 44, 49, 6566, 73, 74, 77 Copyright Association of Boston, 152 Copyright, domestic, 10,119, 24, 25, 78, 84, 90-91 Copyright, International:i Arguments pro, 46 ff.; arguments con, 52 ff., 143 ff.; Berne Convention, 133 ff., 147, 182; Bills proposed in Congress, 43, 89, 101, 104, 118, 119, 123, 127, 132, 136, 146, 153, 156, 165, 167; Bills, texts of, Chace 191, Hawley 132, PlattSimmonds 194, Simmonds 187; Congressional Reports, 43, 54, 89, 104, 124, 137, 146, 155, 165, 167; Morality of, 17 ff., 46; In other nations, 27, 52, 134, 135, 167, 182; Theories of, 26-29, 46 ff., 57, 108, 143 ff. . Copyright, Its Laws and Literature, 146 Copyright League of Chicago, 153 Carson, Levi, 78 Cox Bill, 101 ff. Cox (Rep.), Samuel Sullivan, 101 ff. Cox, T., 12 The Corsair, 37 Crampton, John, 82 Crosby, Dr. Howard, 138 Cummings (Rep.), Amos, 163, 179 Curtis, George William, 88 Dana, Richard, 75 Declaration of Independence, 10 de Keratry, Count Emile, 157-158 de Kock 39 Dickens,' Charles, 36, 39, 51, 58-64, 67-70, 72, 7S, 87-88 Dickens, Kate, 60 Dickens Dinner, 60-61, 63 Disraeli, Benjamin, 42 Domestic copyright, See Copyright, domestic Dominion of authors, 22 ff. Donaldson v. Beckett, 26 Dorsheimer Bill, 123 ff. Dorsheimer (Rep.), William, 123-124 Drama and International Copyright, 127 ff. Dumas, Alexander, 39 Duyckinck, Evert, 70

East Lynne, 131 Edgeworth, Maria, 42 Eggleston, Edward, 120, 132, 150, 153-154, 157 Eichberg, Julius, 144-145 • Encyclopedia Americana, 56 English Bill, 127 English (Rep.), William, 127 English piracy of American works, 50-51 Erasmus, 4 Evarts, William, 113 Everett, Edward, 47, 81 Faques, William, 3 Fiction and copyright, 32 ff. Field, Joe, 60-61 Forrest, Edwin, 128 Forster, William, 68 Franklin, Benjamin, 10, 12-13, 15, 37 Franklin Square Library, 96-98 Frye (Sen.), William, 170-171, 174 Frye Amendment, 170 Funk, Isaac K., 99 Genicot, Edouard, 23 "The Game" of piracy, 35 ff., 51 Gilder, Richard Watson, 120 ff., 150 Goethe, 39 Goodman, Parke, 70 Gothic Novel, 32 ff. Granville, Lord, 113, 116 Greene, George Walton, 132, 138 Greeley, Horace, 67-68 Griswold, Rufus, 72 Hamilton, Alexander, 24 Hawley (Sen.), Joseph, 132 Hawley Bill, 123 ff. Harper Brothers, 36, 38, 76, 85, 93, 96, 109-110, 139 Harper Draft of Copyright Treaty, 109 ff. Harper, Fletcher, 79 Harper, Joseph, 62, 125 Harper's Monthly, 79 Harper, Wesley, 71 Hawks, Francis L., 71, 77 Hawthorne, Nathaniel, 49 Hazard, Egbert, 87 Hegel, George Wilhelm, 20-21 Hoffman, Charles Fenno, 70 Holmes, Oliver Wendell, 46, 86 Holmes, George Frederick, 73 Hotten, John, 50 Houghton, Henry, 86, 150, 152

Howard, Bronson, 130 Howells, William Dean, 86 Hubbard, Gariner, 143 Hugo, Victor, 39, 134 Hyslop, James, 20 International Copyright, See Copyright, International International Copyright Association, 87 ff. Irving, Washington, 37, 49, 63, 65-66, 74-77 Ivison, Henry, 87 Jay, John, 76-77 Johnson, Robert Underwood, 132, 150-151 Keese, John, 70 Kelley (Rep.), William D., 103, 125 Kelley Resolution, 103 Kennedy, John P., 76 Knight, Charles, 37 Lakeside Library, 95 Lathrop, George Palmer, 124 Lea, Henry, 112 Leatherstocking, 74-75 "Library" of cheap books, 95 ff. Lieber, Francis, 45, 56-58 Lippincott, Bartlett & Walford, 76 Literary Congresses, 134 Longfellow, Henry Wadsworth, 4950, 65, 87 Longmans & Co., 35 Lowell, James Russell, 65, 113-116, 132, 141, 152, 161, 185 Lowell Quatrain, 141 Lovell's Library, 96 Macaulay, Thomas, 35-36 Manufacturing clause, 44, 125, 143 Manuscript copyright, 1-2 Mark Twain, See, Clemens, Samuel Martineau, Harriet, 42 Mary, Queen, 3 Mather, Cotton, 16 Mathews, Cornelius, 63-68, 70-72 Matthews, Andrew, 44 Matthews, Brander, 147-149, 159 McClurg, Alexander, 153 McKeon, John, 76 Melville, Herman, 77 Miller, Perry, 67 Milton, John, 7-8 Moore, Thomas, 42

213

Morril (Sen.), Lot, 104-105 Morrif Report, 104 ff. Munrd, George, 97-98 Music | and International Copyright, 144 ff. . Musicj Teachers' Petition (1884), 127, (1886) 144 National Educational Association, 158, f. 30 Neall, John, 41 Newton, Rev. Richard, 17 Novels and International Copyright, 14, 30 ff. Novels growth of in U. S., 39 ff.; types of, 32 ff. Opponents of International Copyright, 45 ff. Page, Walter Hines, 94 Paine, Thomas, 33, 41 Palmer, George Herbert, 18 Palmerston, Lord, 80 Pamela, 32 Parley. Peter, 50 Parton, James, 87 Pasco, Senator, 175, 180-181 Petitions: of American authors (1886), 139, (1889) 159; of American publishers (1843), 76 ff.; of authors and publishers (1868), 89; of British authors (1836), 42 ff., (1842) 68; of citizens of Boston (1838), 47; of publishers (1843), 76; of Southern authors (1889), 159; See also under Copyright, International The Pioneer, 66 Piracy: amount of, 38-39; Catholic moralist teaching on, 22 ff.; foundations of, 34; Hegel on, 21; Protestant moral teaching on, 18 ff.; speed of, 35-36; Spencer on, 20-21; See also under Drama and Music Piracy and the drama in America, 131 ff. Piracy in the periodical press, 37 ff. Piracy of foreign works, 39 Piatt Bill, 156 Piatt (Sen.), Orville, 157, 166, 169170 Piatt Report, 137 ff.

214

Index

Platt-Simmonds Act: effects of, 183 ff.; text of, 194 ff. Piatt (Sen.), Thomas, 137 Poe, Edgar Allan, 72-73 Popular books, 31 ff. Porter, Noah, 19 Prescott, William, 75 Preston, Senator, 43, 57-58 Prime, Samuel Irenaeusy 87 Price of MSS, 35-36, 97 Protectionists, statement: of, 143-144 Publishers' Association, |108-109 Publishers' Copyright League, 122 Publishers' Weekly: and. International Copyright, 107 ff.; See also comments in Bibliography, 202 Putnam, George Haven, 89, 149-152, 161 Putnam, George Palmer, 21, 44-45, 48, 52, 71, 76-79, 86, 108 Quatrain by Lowell, 141 Raymond, Henry Jarvis, 70-71 Reciprocity clause, 165 Renouard, Charles, 58 Report on Manufactures, 24-25 Richardson, Samuel, 32! Rivington, James, 40 i Rives (Sen.), William, 147 Robinson (Rep.), William E., 118 Robinson Bill, 118 ff, Rowlett, John, 78 Royal Commission on llnternational Copyright, 115 ff. Royal patents and monopolies, 3-4, 6-7 Ruggles Report, 54 Rutledge Ltd., 50 St. Louis Hegelians, 21 Saunders, Frederick, 41, ff. Saunders & Otley, 41-42 "Sawmills," 96, 99-101 Schoolcraft, Mrs. Henry, 78 Scott, Sir Walter, 30, 33, 37, 39, 62, 79 Scribes, 2 Seaside Library, 95 Scribner, Charles, 98, 150, 156 Sherman (Sen.), John, 104, 171-172 Sherman Amendment, 171 ff. Sherman Bill, 104 Sherman & Johnson, 77 Shield, Benjamin J., 76

Simmonds Bill, 165, 167; passed in House of Representatives, 168; passed in Senate, 175; text, 187 ff. Simmonds Report, 165, 167 Simmonds, Representative, 165, 167168, 178-179 Simms, William Gilmore, 64, 73, 75 Smith, Pearsall, 159, 176 Smith, Sidney, 68 Southern Literary Messenger, 73 Southey, Robert, 42 Spencer, Herbert, 20-21 Spofford, Ainsworth, 140, 142 Star Chamber, 7 Stationers' Company, 2, 4 ff., 8 Stationers' Court, 5-6 Stationers' Register, 5, 8, 12 Stedman, Edmund Clarence, 88-89, 132 Sterling, Rev. James,. 15 Sterne, Lawrence, 32 Street & Smith, 38 Stuart Kings and copyright, 6 Sue, Eugene, 39 Sumner (Sen.), Charles, 77 Sumner, Thomas H., 78 \ Talfourd, Serjeant, 58-59, 68 Tariff on books, 24-25, 84 ff., 134 Taylor,' Bayard, 77 Taylor, John S. & Co., 76 Tegg, Thomas, 50 Tennyson, Alfred Lord, 50, 68 Tetracy's Club, 64 Thackeray, William, 51 Thomas, Isaiah, 13 Thompson, Charles, 15 Ticknor & Co., 76 Trade Courtesy, 95, 98 Treaty Draft (1853), 81-83 Trilling, Lionel, 185 Tudor Kings and copyright, 5 Tyler, President John, 58 Typographical improvements, 91 ff. Typographical unions, 100-101, 158, .. 163 Typography, development of, 29 ff. Typothetae, 163-164 Unions, See Typographical unions Value of book manufacture in U. S., 93 Vermeersch, Arthur, 22 Verplanck, Julian, 70

Index Walpole, Horace, 32 Wood, Mrs. Henry, 131 Warner, Charles Dudley, 111 Wayland, Francis, 19 Webster, Samuel, 43 Webster, Noah, 25, 30 West, John, 12 Wheaton v. Peters, 26 Whittier, John Greenleaf, 86 Wiley & Putnam, 57

215

Willis,] Porter & T. O., 37 Wilkes, Captain John, 42 Wiley j& Long, 45 Winthfop, Robert C, 76 Women's Typographical Union, 101 Wroth] Lawrence, 12 "Young America" literary movement, 65, 67