Copyright: Its History and Its Law Part 42

{Sidenote: Saving through single publisher}

The reason that an author chooses one publisher instead of many is the simple one that the original cost of making and advertising a book is in this way reduced to one outlay instead of multiplied in many, and that this cost is minimized by being distributed over the largest possible edition. It is the practice of any successful publisher to plan for such an edition as will command the widest sale, and so distribute the original cost over as many copies as possible, and when a copyright book proves to be of such general demand that different styles of editions can be sold, such editions are in fact made by the same publisher. The compulsory license system would only protect the public against the unwisdom of publishers, whose mistakes are presently corrected by business failure or by the transfer of his books by the author to more enterprising houses.

{Sidenote: Copyrights in bankruptcy}

Copyrights are specifically included, with patents and trade-marks, in the bankruptcy acts as a.s.sets which pa.s.s to the trustee, which applies to a bankrupt author as well as to other copyright proprietors, but as previously stated, this does not include the personal contract for the publication of an una.s.signed work. This last doctrine was fully upheld in the English case of Griffith _v._ Tower Pub. Co. & Moncrieff, in 1897, by Justice Stirling, where the liquidator of a corporation was enjoined from transferring a copyright direct to a publisher not acceptable to the author. A ma.n.u.script as such is a tangible a.s.set in bankruptcy if of value in itself, but the right of the author to copyright or to publish his ma.n.u.script is a personal and not a property right, which therefore does not pa.s.s in case of bankruptcy, and a court would probably not undertake to compel an author to realize the value of an unpublished work for the benefit of creditors by publication and copyright. Nor may a bankrupt author be compelled in bankruptcy process to complete his work, as was decided in 1841 in the English case of Gibson _v._ Carruthers.

{Sidenote: Copyrights in taxation}

Copyrights, like patents, are subject to the inheritance tax, as capitalized on the basis of income. In the appraisal of 1911 of the copyrights of Mrs. Mary Baker G. Eddy, author of "Science and health,"

and other Christian Science books, the valuation returned for tax purposes reached $1,400,000, which is probably the largest valuation ever put upon the copyrights of any one author. The copyrights of the late Marion Crawford were appraised by the New York State tax authorities, in the same year, by valuing his last novel at the income during its first year of publication and his earlier novels at the income for three years pa.s.sed. Neither method afforded a fair valuation, as a work may be dead after its first year, and the test by income through successive years would depend on whether sales were decreasing or increasing during the period. Standard school books are sometimes estimated as worth three years' income, but such a generalization would not apply in other cases. Each valuation, for tax or sales purposes, must depend upon the circ.u.mstances in each case. An inheritance or other tax on copyrights, which are intangible property, may fairly be questioned, in view of the uncertainty whether the legatees may realize any future return from the property.

XXIII

THE LITERATURE OF COPYRIGHT

{Sidenote: Bibliographical materials}

The literature of copyright is extensive and its bibliography would now make a volume in itself. The bibliography of literary property prepared by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg volume of 1886, occupying sixty pages, covered approximately fifteen hundred t.i.tles, besides a.n.a.lytical indexes to several periodicals. The bibliography to the present date, inclusive of that material, which Register Solberg has continued, would increase this record at least twofold. The copyright campaign resulting in the code of 1909 was especially prolific of drafts and bills, Congressional and other reports and private publications, of which "dry as dust" indication is given in the earlier chapter containing the record of that campaign. Nothing more can be attempted in this chapter than a brief glance over historical material and leading works.

{Sidenote: Early history}

The early history of copyright is to be traced only through incidental references in cla.s.sical and medieval works. Among these may be instanced Montalembert's "Monks of the West" and Brown's "History of the printing press in Venice," previously cited. George Haven Putnam's work on "Books and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2 v., 459, 538 p.), though dealing chiefly with publis.h.i.+ng relations, incidentally gives much information on the early history of printing privileges and copyrights proper. Several of the law book writers, notably Copinger, summarize in some measure the early history of copyright.

{Sidenote: Early American contributions}

Perhaps the earliest American publication distinctively on copyright was the "Remarks on literary property," by Philip H. Nicklin, in 1838, in which he included as an appendix a reprint of Joseph Lowe's summary of copyright history and practice up to 1819, from the Encyclopaedia Britannica supplement, and argued for longer, if not perpetual copyright for our own authors, on the plea that "charity begins at home," as well as for international copyright throughout a world-wide republic of letters. The later movements in America for international copyright brought out much writing, though largely in periodical articles and pamphlets, among the most noteworthy of which were Dr. Francis Lieber's letter "On international copyright," of 1840, Henry C. Carey's "Letters on international copyright," of 1853, and "The international copyright question considered," of 1872, George Haven Putnam's monograph on "International copyright," of 1878, and Richard Grant White's "American view of the copyright question," of 1880.

{Sidenote: Later American pamphleteers}

During the copyright campaign leading to the act of 1891, several pamphlets were issued on behalf of the American (Authors) Copyright League, notably Rev. Dr. Henry van d.y.k.e's "National sin of piracy," of 1888, and Prof. Brander Matthews's "Cheap books and good books," on the texts of James Russell Lowell's epigram, "There is one thing better than a cheap book, and that is a book honestly come by," and George William Curtis's words, "Cheap books are good things, but cheapening the public conscience is a very bad thing,"--which last paper is reprinted in Putnam's "Question of copyright."

{Sidenote: American treatises}

The leading American law book writer has been Eaton S. Drone, later editor of the New York _Herald_, whose valuable "Treatise on the law of property in intellectual productions in Great Britain and the United States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered comprehensively the general copyright legislation of 1870-74, and superseded the earlier standard American law book, George Ticknor Curtis's work of 1847, "Treatise on the law of copyright ... as enacted and administered in England and America." The volume on "Copyright, its law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y.

_Publishers' Weekly_, 1886, 8vo, 136 p.), the latter furnis.h.i.+ng the bibliography of copyright, included facsimile of the autograph signatures in the memorial of American authors of 1885, and a reprint of Sir James Stephen's digest of British copyright law, as well as the revised statutes, const.i.tuting the copyright law of the United States at that time. "The question of copyright," by George Haven Putnam (N. Y., Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the important doc.u.ments and articles, including the text of the act of 1891.

A valuable digest of "Copyright cases, 1891-1903," American and English, was compiled by Arthur S. Hamlin for the American Publishers Copyright League (N. Y., Putnams, 1904, 8vo, 237 p.).

{Sidenote: Copyright Office publications}

The most valuable series of current publications on copyright are those issued from the Library of Congress by the Copyright Office, under Register Solberg's administration. The most important of these series is that of Copyright Office _Bulletins_ issued at irregular intervals, of which No. 14 presents the current copyright law and No. 15, issued in 1910, gives the "Rules and regulations for the registration of claims to copyright" under the new law. No. 3, as issued in a second edition in 1906, contains the full text of "Copyright enactments of the United States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress, 1789-1904," contains a bibliographical and chronological record of all proceedings in Congress. Several bulletins were issued during the preparation of the law of 1909, of which the most important was No. 9, giving the "Provisions of the United States copyright laws with a summary of some parallel provisions of the laws of foreign countries."

No. 5 covers copyright in England, presenting the full text of copyright acts from 1875 to 1902, including and supplementing Sir James Stephen's digest of British copyright law; No. 6, "Copyright in Canada and Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force"

up to 1904; No. 11, "Copyright in j.a.pan" up to 1906; and No. 13, the doc.u.ments of the International Copyright Union, including the Berlin convention of 1908. Bulletins No. 1 and 2 cover the former copyright law and directions for registration under it. Many of these bulletins are already out of print. A minor series is that of _Information circulars_, of which forty-five have been published, many of them now out of date and superseded, covering from time to time current information as to laws, proclamations, treaties, etc., domestic and foreign, as well as opinions of the Attorneys-General, custom regulations and the like.

{Sidenote: Labor report}

A report on the effect of the international copyright law by the Commissioner of Labor, Carroll D. Wright, was presented to the Senate in 1901.

{Sidenote: English contributions about 1840}

Copyright literature in England is too extensive for more than brief reference here. "The great debate," led by Serjeant Talfourd on one side and Lord Macaulay on the other, is recorded in Hansard's Parliamentary Debates (third series, volume LVI of 1841), and the speeches of the two combatants are reprinted in their respective works. John James Lowndes's "Historical sketch of the law of copyright" was printed in 1840, with especial reference to Serjeant Talfourd's bill, and contained an appendix on the state of copyright in foreign countries--America, France, Holland and Belgium, the German states, Russia, Denmark, Norway and Sweden, Spain, and the Two Sicilies. "A plea for perpetual copyright," by W. D. Christie, was also put forth in 1840. Carlyle's caustic "Pet.i.tion on the copyright bill" is included in his "Critical and miscellaneous essays."

{Sidenote: Later English contributions}

Among the later noteworthy contributions to the subject were the caustic denunciation of international piracy by Charles Reade, the novelist, under the t.i.tle "The eighth commandment," reprinted in America by Ticknor & Fields, in 1860; Matthew Arnold's _Fortnightly_ article of 1880, on "Copyright," printed in the volume of his collected works containing his "Irish essays"; John Camden Hotten's seven letters on "Literary copyright," in a volume of 1871; and Walter Besant's volume "The pen and the book," of 1899, containing a special chapter on copyright and literary property by G. H. Thring, Secretary of the British Society of Authors. Herbert Spencer made several contributions to the subject, some of which were reprinted in his "Various fragments."

{Sidenote: English legal treatises}

There had been published, so early as 1823, the first edition of Richard G.o.dson's "Practical treatise on the law of patents for inventions and of copyright," which was immediately translated into French and became the standard English work, being supplemented in 1832 with an abstract of the laws in foreign countries and republished in a second comprehensive edition in 1840 by Saunders & Benning, London; in 1844 this second edition, with a supplement covering the recent laws, was reissued by W.

Benning & Co., in an octavo of 700 pages, and in 1851 a separately published supplement by Peter Burke brought G.o.dson's work up to that date. Another early English law book was Robert Maugham's "Treatise on the laws of literary property, comprising the statutes and cases; with an historical view and disquisitions," published by Longmans in 1828.

The standard work of W. A. Copinger on "The law of copyright, in works of literature and art," first published in 1870 and reissued in a fourth edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo, 1155 p.), includes as well as English and American decisions, chapters on international copyright and on copyright in foreign countries, with full text of English and many foreign statutes, and many legal forms. A work by J. H. Slater covered "The law relating to copyright and trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a digest of the more important English and American decisions. The writer of the York Prize Essay of the University of Cambridge for 1882, T. E.

Scrutton, rewrote and extended his work under the t.i.tle of "The law of copyright," later continued into a fourth enlarged edition (London, Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study of "The law of copyright" in 1896.

{Sidenote: Birrell's lectures}

Augustine Birrell, as Quain Professor of law at University College, London, delivered a series of lectures in 1898, of which seven were printed in his delightfully readable little volume on "The law and history of copyright in books" (London, Ca.s.sell, 1899, 12mo, 228 p.).

{Sidenote: MacGillivray's works}

The latest English law book writer is E. L. MacGillivray, whose "Treatise upon the law of copyright," British and American (London, Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with foot-note references to cases. This was followed by a brief "Digest of the law of copyright," English only, prepared by the same writer for the Publishers a.s.sociation of Great Britain and Ireland (London, b.u.t.terworth, 1906, 12mo, 106 p.). The same a.s.sociation has printed annually from 1901, a digest of "Copyright cases," which are collected in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr.

MacGillivray.

{Sidenote: English special treatises}

Special English treatises on specific cla.s.ses of copyright protection are Colles and Hardy's "Playright and copyright in all countries"

(London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.); Reginald Winslow's "The law of artistic copyright" (London, Clowes, 1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899, 8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.), the most important publication in English in its field.

{Sidenote: Parliamentary and Commission reports}

The Parliamentary papers giving reports of special commissions, referred to in previous chapters, const.i.tute an important part of the English literature of copyright, the most notable being the report of the Royal Copyright Commission issued in 1878, with Sir James Stephen's digest of the law as then existing, and a supplementary blue-book of evidence; the report of the Musical Copyright Committee appointed by the Home Department, of 1904; the report of the Law of Copyright Committee appointed by the President of the Board of Trade, of 1909, with accompanying minutes of evidence; and the minutes of the Imperial Copyright Conference of 1909. The new copyright bill has been four times printed in progressive form--on its first introduction, July 26, 1910, on its reintroduction, March 30, 1911, as it emerged from committee, July 13, 1911, and as it went to the Lords, August 18, 1911.

The pending Canadian bill has been printed only as introduced April 26, 1911, but the government has supplied an accompanying memorandum comparing its provisions with existing law.

{Sidenote: Cyclopaedias and digests}

The American and English law cyclopaedias and digests also give references to copyright cases and decisions, some in special chapters, more or less comprehensive of recent copyright interpretations.

{Sidenote: French works}

The most recent authoritative French works on literary property are Eugene Pouillet's "Traite theorique et pratique de la propriete litteraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028 p.); Gustave Huard's "Traite de la propriete intellectuelle, v. 1.

Propriete litteraire et artistique" (Paris, Marchal & Billard, 1903, 400 p.), and A. Huard and edouard Mack's "Repertoire de legislation, de doctrine et de jurisprudence en matiere de propriete litteraire et artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier elaborate work is that of Claude Couhin, "La propriete industrielle, artistique et litteraire" (Paris, Larose, 1894), in three volumes.

{Sidenote: German works}