Popular Science Monthly/Volume 32/January 1888/Editor's Table

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THE latest scheme for an international copyright combining some of the more prominent provisions of earlier plans with a new feature of his own, is offered by Mr. R. Pearsall Smith of Philadelphia, and printed in a recent number of the "Nineteenth Century." The comments on the plan of a dozen distinguished Englishmen accompany the article, the publication of which, whatever the fate of the proposal, has served at least one good purpose. By renewing attention to the subject it has set people thinking and provoked discussion, and in a case fraught with such rank injustice to our home as well as to foreign authors, every general stirring up of the question must do good. It will help to quicken the moral sense of the community, and perhaps in time will make it lively enough to force Congress into the performance of what all right-thinking persons are agreed is a clear national duty.

Of the plan itself, however, as a practical working solution of the difficulty, little that is favorable can be said or expected. Accustomed, through the piratical practices of former years, to an abundant supply of low-priced literature, American readers will not, it is claimed, consent to a monopoly copyright on foreign books, or, put in another form, they will continue to deny to the property rights of the foreign author that reasonable measure of protection which is now freely accorded to the rights of our authors at home.

The reasons assigned for their persistence in this palpably unfair discrimination are, in substance, that such a law would mean English prices for foreign books in this country; it would cause a great diminution in the volume of our literature; cheap editions would disappear from the market, and the publisher would be enriched at the expense of the reader, without any corresponding benefit to the author.

To avoid this imaginary revolution in the literary affairs of the United States, and at the same time secure to the foreign author his dues, the scheme in question proposes to give to any one in this country the privilege of publishing in any style and at any price he sees fit, any foreign book he may select, on condition that he first pay to the author a royalty of ten per cent on the retail price of each copy of the work he expects to sell. The evidence of his compliance with this requirement is obtained in the form of stamps, which the author is obliged to furnish to every applicant, or as a penalty for refusal suffer the loss of all his American rights. A single stamp is to be affixed to each copy of the book before it leaves the publisher's hands; and is thus expected to serve as a check on possible attempts to dispose of unauthorized editions.

To illustrate the way in which an arrangement of this kind would be likely to work in practice, we will suppose that some spirited author ventures upon a choice of publishers, and finding one who is bold enough to negotiate, he bargains to have his book brought out in a style suited to the subject, to his own reputation, and to the class of readers he is expecting to reach, trusting the result to the joint interest of his publisher in the enterprise. The next week, six months, or perhaps a year later, as the case may be, he is compelled under the new law to mercilessly cut the throat of his business associate, wiping out his property, and destroying his market, in the interest of another publisher, who, shrewd enough to see his opportunity and having the game in his own hands, demands the stamps for an inferior and low-priced edition. Under such a condition of things, publishers of ordinary business sagacity would be slow to assume even the smallest risk, the utter insecurity of the property making all business enterprise in that direction precarious. In this connection, we can not do better than to give the views of Mr. W. H. Appleton, whose long experience as a publisher enables him to speak with an authority which greatly outweighs the untried speculations of one who, like the writer in the "Nineteenth Century," has no practical knowledge of the business. Referring, in 1872, to a proposed international copyright law that was then under discussion, and which, like the present plan, provided for open competition in the reprinting of foreign books, Mr. Appleton said:

The first demand of property is for security, . . . and to publish a book in any real sense—that is, not merely to print it, but to make it well and widely known, requires much effort and larger expenditure, and these will not be invested in a property which is liable to be destroyed at any moment. . . . The publisher can neither afford to make the book so thoroughly known, nor can he put it at so low a price as if he could count upon a permanent and undisturbed control of its sales. Many valuable books are not reprinted at all, and therefore are to be had only at English prices, for the same reason that publishers are cautious about risking their capital in unprotected property.

In its other business aspects, such as the opportunities it affords for fraud, the possible difficulties in recovering the value of unused stamps, and the general influence on the trade of the uncertainties of open competition, the plan is equally objectionable. Indeed, taken as a whole, it seems much better adapted to the purpose of quieting our consciences while we hang on to the plunder, than to the furtherance of its ostensible object—the benefit of the British author.

The fact is that the assumption on which the whole scheme is based, viz., that American readers will not accept a monopoly copyright on foreign books, is untenable, and is, in the opinion of many, squarely contradicted by the facts. For three quarters of a century Americans have bought books at fair prices under monopoly copyright without finding fault, and, moreover, when the demand arose, have enjoyed the advantage of lower-priced editions However it may be slurred or ignored, the truth is that the American people have had a great deal less to do with this denial of justice to English authors than the publishers and the politicians; and when some member of Congress, in pursuit of a little cheap political capital, sets up the plea that his constituents are not willing to pay fair prices for the foreign author's property in this country, he may very reasonably be asked to back up his statements with some unmistakable expressions of feeling from the people themselves. That American readers have accepted and upheld a monopoly copyright at home may, until we have something definite to the contrary, fairly be taken as an indication that, when made acquainted with the true bearings of the case, they will be equally fair toward the interests of the foreign author. As a matter of fact they have already given abundant evidence of this kindly feeling in the purchase of substantial editions of English and other foreign reprinted books of a solid character, amounting in the aggregate to hundreds of thousands of volumes, paying prices therefor which have enabled the few high-minded publishers who voluntarily entered into the arrangement to hand to the foreign author exactly the same return that he would have received if a citizen of this country. The publishers following this practice have been able to make and sell these books at American prices, and have also found their profit, when the demand would justify the venture, in the sale of cheap editions. Of course, in doing this they exposed themselves to serious risks, and but for the old-time courtesy of the trade, by which they were to a considerable extent protected, it would have been impossible; and the fact that with the recent enormous development of piracy, which respects nobody's rights of property, they have suffered material losses, is but a confirmation of the point that the open competition proposed in the present plan would have exactly the same effect that piracy is having now.

In fact, then, we have a practice which has grown up under existing conditions that makes no distinction between our authors and those of other countries, which is supported by a large class of readers, and which only needs the simplest legal sanction to completely solve the question of international copyright without resort to untried, complicated, and otherwise doubtful business methods.

Looked at from the moral side, which really is the only proper stand-point, Mr. Smith's plan is, if possible, open to still stronger objection, and its defects in this respect are so cleverly and forcibly pointed out by Professor Huxley in the "Nineteenth Century" that we make no apology for quoting bis remarks in full. He says:

I find in Mr. Pearsall Smith's interesting paper two chief matters for consideration: the one is a statement of the moral principles by which the transatlantic English-speaking people propose to govern themselves in dealing with the property of British authors; and the other is a plan for securing to the said British authors such a price for the use of their property as is compatible with the moral principles in question. The principles are very easily gathered from Mr. Pearsall Smith's candid exposition of them. Transatlantic readers, it appears, by no means go so far as to deny that a book is the property of its author; and they are evidently quite shocked at the notion that, when they possess themselves of a pirated edition, they may be placing themselves in the position of receivers of stolen goods. Their conscience has been stirred to its depths by the suspicion that such may be the case, and will give them no peace until they are satisfied that the man whose genius has charmed away their sorrows or opened up new vistas for their intellect has not been left to starve on mere praise. All they ask (and they seem to think the request a grace) is that they themselves shall be the assessors of the pecuniary value of their obligations. "Our souls require moral and intellectual elevation; we are accustomed to get these elevators cheaply, and we mean to go on getting them cheaply. We shall be happy to consider any arrangement for rewarding the makers of the elevators consistently with that declaration; but they had better recollect that we are masters of the situation, and that we shall appropriate our spiritual nourishment without payment, if we can not get it at our own price." In England we still retain so much of the ingrained conservatism of the decaying civilizations of Europe, that, if a starving man goes into a baker's shop, and carries off a sixpenny loaf, leaving only twopence in its place, the poor wretch is haled before the nearest magistrate and sent to prison for a thief. It would be no good whatever for him to plead that his bodily frame absolutely required to be elevated and kept erect by regular installments of bread; that he had been accustomed all his life to get a big loaf for twopence; and that, in his judgment, the baker got quite enough profit out of the two-pence—to prison he would go. But see the difference. The starveling is not (at any rate yet) master of the situation, and the baker (plus the magistrate) is. However, we are altering all these things rapidly. It baa become an axiom among a large and influential class of our politicians, that a want constitutes a good claim for that which you want, but which other people happen to possess. The "earth hunger" of the many has established itself as an excellent plea for the spoliation of the land-owning few; lease-holders are already trying the effect of "house-hunger" on house-owners; and the happy time seems approaching when the consumer, and not the producer, will fix the price of all things desirable. The course of action by which, according to Mr, Pearsall Smith, transatlantic readers propose to deal with British authors, is but another anticipation of that social millennium when the "have-nots," whether they lack land or house or money or capacity or morals, will have parted among themselves all the belongings of the "haves"—save the two last mentioned.

The proposed plan for "protected copyright with free-trade competition" has one merit. It recognizes the right of property of an author in his work. It is a frank confession that piracy is theft. But, as a practical measure, I can not say I feel any confidence in its working. The author is to provide stamps for each copy of his work, and anybody who chooses to publish it is to obtain the number of stamps required for his edition, on paying ten per cent of the publishing price to the author or his representatives. It appears to me that there are serious—not to say fatal—objections to this project from the point of view both of the author and of the publisher.

From that of the author, because unless the stamps arc executed with the care and cost of a bank-note, they may be counterfeited with the most tempting eagerness. Suppose that I had the good fortune to be the author of a popular novel, and that I found that some scamp of a bookseller was issuing an edition with forged stamps at Chicago, and another playing the same game at Toronto. Unless I happened to have a few thousands of which I desired to make ducks and drakes, is it conceivable that I should be so foolish as to take action against my defrauders in the civil courts of these two cities, when, in all probability, the judge would have a copy of the pirated edition in his pocket, while bar and jury were equally well provided? How shall Angelo condemn Claudio without many qualms? Suppose I succeeded and obtained the award of five times the retail price of the cheap edition—which is the maximum fine proposed—to what extent would that recoup me for law expenses, worry, and loss of time? Legal administration is comparatively cheap and swift in Scotland; but an eminent Scotch judge once told me that if he were riding along Leith Walk, and somebody preferred a claim to his horse and took it away, he should think it, on the whole, better to put up with the loss of the horse, than to go to law with the spoliator. Certainly it would be better for the English author to sell all he had and give it to the poor, than to undertake a copyright process in the United States or Canada in the face of the existing feeling that "our people" have a right to "nourish themselves and their children," as Sir C. Trevelyan put it, on cheap books. The former process, at any rate, would not leave him in debt.

And now as to the position of the publisher under the proposed arrangement. My experience of publishers, both in England and America, has been such as to lead me to differ somewhat from the estimate which many of my brethren seem to form of them. So far as my observation has gone, they have as much claim to the possession of souls as other people; and I have not been able to convince myself that the portion of inherited depravity in the average publisher is greater than that implanted in the average author. I have frequently asked myself whether, for any possible benefit which my publishers get out of my books, I would or could submit to the worry, loss of time, and pecuniary risk of bringing them out on my own account; and I have had no difficulty in answering this question in the negative. But there are publishers and publishers, and there are various fashions of bringing out books.

As our transatlantic readers admit that an author has some right of property in his work, I am a little perplexed to understand why they deny his right to appoint the agent[1] on to whose shoulders he desires to throw all the burden and risk of giving that work a practical existence, and to decide in accordance with him the form of their joint produce and the remuneration they may ask for it. The farmer, the miller, and the baker decide the price at which they can afford that the loaf which they have jointly produced shall be sold. In revolutionary times, starving mobs, desiring to have the sixpenny loaf for twopence, call the baker a monopolist, and proceed to hang him à la lanterne. The transatlantic people, impelled, as it appears, by their spiritual cravings after the intellectual and moral elevation imparted by the works of English authors, call the publisher, who stands in the same relation to the author as the baker to the farmer, a "monopolist." Heaven forbid that I should suggest that my excellent friends, the Messrs. Appleton, may stand in danger now or hereafter of the lanterne. Not at all! The sixpenny loaf can be got not merely for twopence, but for nothing, without any such violence, by simply continuing the present practice of piracy, checked only by the underselling power of the strong houses.

Grant, however, that the appointment by the man who possesses a property of an agent to administer that property, according to such terms as they may mutually agree to, is an offensive act of monoply on the part of the owner—what will be the practical working of the scheme which it is proposed to substitute for this old-world expression of rights of ownership?

I suppose myself an American or Canadian publisher. I hear that the celebrated English author A. B. is about to produce a work which is certain to be greatly In demand on my side of the Atlantic. As things are, if I bring out an edition of ten thousand, I, in the first place, risk the whole prime cost of that edition on the accuracy of my judgment of the public taste. To those who have had experience of the uncertainty of such judgments this will probably seem enough. But the new scheme proposes that I shall add to this risk the deposit, with the author or his representatives, of a sum equal to a thousand times the selling price of a single copy, with the prospect of a possible lawsuit against a man who is usually not rich, an indefinite time afterward, to get back the value of stamps for unsold copies in case I have made a mistake. And, for all this additional trouble, risk, and tying up of capital, I get absolutely nothing. It is open to my rival in the next street to write for the necessary stamps and undersell me whenever he pleases. For the publisher, therefore, the state of things would remain exactly as it is now—a condition of internecine warfare, in which only those houses can afford to pay copyright who are wealthy enough to break down any one who trenches on their ground. The relation of authors to publishers in America at present is exactly that of the traveling merchants to the barons of the middle ages. Put yourself in the hands of any one of them who was strong enough, and he protected you against all the rest; otherwise, you were every man's prey. I do not see how the projected scheme will alter this state of things. It is further to be considered that the new proposal leaves the author absolutely at the mercy of anybody who applies for stamps. The publisher may turn out an ill-printed, ill-corrected version (perhaps improved and amended to suit the taste of the transatlantic people), and the author has no remedy.

In the case of illustrated works the wrong may be still more gross. I speak with some knowledge of the cost and trouble of preparing illustrated scientific books. The author may spend months or years in dissecting and preparing the requisite objects and in making or superintending the execution, in the first place, of drawings from them, and, in the second place, of the engravings made from these drawings. It rarely happens that he obtains more than the most bare and scanty remuneration for the labor thus spent, which often is as great as that of writing his book. The work being published in England, an American publisher writes for stamps for an edition, say a third or a fourth of the price per copy of the English one. It is perfectly easy for him to do so; the paper and the mere type-setting after a printed book do not come to much, and the illustrations, which have cost the producer so much trouble, can be reproduced at a fraction of the cost of the originals. If they are course and clumsy, with references half wrong, what matter? The discredit is put down to the author's account. In conclusion, I am of opinion that this proposal for "protected copyright with free-trade competition" is false in principle, and, so far as English authors and transatlantic publishers are concerned, would be futile in practice. If adopted, it will merely come to the issue of letters of marque to people who are now frankly pirates. The French valet said to the master who offered him so much a year if he would leave off the pickings and stealings, "Monsieur, je préfère de vous voler." I may paraphrase the candid valet's confession, and declare that if I am to be robbed I prefer to be robbed openly.

If the transatlantic reader admits, as he professes to do, that an English author has rights of property in the book which he has written, he seems to me bound further to admit that the author may at least appoint an agent in the reader's own country with the exclusive right to make and sell the book under such conditions as that agent, knowing the wants and condition of the community, may think prudent and reasonable. If my transatlantic friend calls that proposal "undisguised monoply," I call any which offers less to the author more or less disguised piracy.

  1. I see no reason for demurring to the requirement that the agent should be a native of the country in which the sale is to take place, if, as is asserted, there are strong practical grounds of objection to any other arrangement.