Birrell Seven Lectures on Law and History of Copyright 1899

8/12/2019 Birrell Seven Lectures on Law and History of Copyright 1899

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BOUGHT WITH THE INCOMEFROM THESAGE ENDOWMENT FUNDTHE GIFT OPiienrg W. Sage

1891

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SEVEN LECTURESON

The Law and History ofCopyright in Books

AUGUSTINE gIRRELL. M.P.-ONE OF HER MAJESTY'S, COUNSEL

ANDQUAIN PROFESSOR OF LAW AT UNIVERSITY COLLEGE, LONDON

CASSELL AND COMPANY, LimitedLONDON, PARIS & MELBOURNE

G. P. PUTNAM'S SONSNEW YORK1899

ALL RIGHTS RBSERVED


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NOTE.As Quain Professor of Law at University-College, London, I delivered Eighteen Lectureson the general subject of Copyright in theearlier part of this year. I have thought itworth while to reprint the more popular ofthese Lectures, chiefly because the Law onthe subject is expected before long to engage

what is sometimes called the attention ofParliament.

A. B.3, Neim Sgwure, Lmooln's Irm,

Decemier, 1898.


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Cornell UniversityLibrary

The original of tliis book is intine Cornell University Library.

There are no known copyright restrictions inthe United States on the use of the text.

http://www.archive.org/details/cu31924029522061


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I.

INTRODUCTORY.


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COPYRIGHT IN BOOKS.I.

INTRODUCTORY.

ERRATA. 'P. 48, 1. 12, deUte New.P. 57, I. r, delete no.P. 102, footnote, delete of Parliament.

OoPYEiGHT IN Books.

search through the huge compilations ofJustinian without Kghting upon a word indi-cative of any right possessed by the authorof a book to control the multiplication ofcopies ; and yet books abounded even beforethe invention of printing, and though thepirate escaped animadversion, not so theplagiarist. Nor can you, even after the in-vention of the movable types, which rendered


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COPYRIGHT IN BOOKS.

INTRODUCTORY.Whatever charm is possessed by the subjectof copyright is largely due to the fact thatit is a bundle of ideas and rights of modernorigin. It is not like the majority of legalconceptions lost in an antiquity about whichwe can only guess, and about which eachgeneration guesses differently. The HomericPoems as poetry are beyond reproach,but they were never copyright. You maysearch through the huge compilations ofJustinian without Hghting upon a word indi-cative of any right possessed by the authorof a book to control the multiplication ofcopies ; and yet books abounded even beforethe invention of printing, and though thepirate escaped animadversion, not so theplagiarist. Nor can you, even after the in-vention of the movable types, which rendered


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10 OOPTBIGHT IN BOOKS.the reproduction of copies an easy, becausea mechanical, process, discern any moment oftime marking the epoch when the WesternWorld recognised the right of an author assuch to levy dues upon the published productof his own brain and intellectual industry.We are thus able to observe for ourselves aclaim made by the producer of an article tohave property in it, and the mode in whichthat claim has been met and recognised bythose who wished to consume the article inquestion.

All through the 17th and 18th centuriesin France, and during the latter half of the18th century in England, a controversy wascarried on between savants, booksellers andlawyers as to whether authors were entitledto an exclusive right of multiplying copiesof their works as property or as privilege. InFrance, the question assumed this shapeWere the rights of authors the creatures firstof Royal patronage, and subsequently ofsocial concession, or were they un droit ab-solu, une proprUtS ? In England we askedthe question in this wayAre the rights ofauthors property-rights at Common Law or


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INTBOBUOTOBY. 11the creatures either of a prerogative of theCrown or of our Statute Book?The reason why these questions wereasked both in France and England was thisCertain rights over things amounting inthe aggregate to a more or less completeexclusion of others than the owner from par-ticipating, save by consent, in their enjoy-ment had in the Western World becomerecognised as properti/, as our old friendsMeum and Tuum. The origin of property, ofexclusive ownership, is one of the subjects-about which our predecessors in title lovedto discourse at large after a fashion moreingenious than historical. Occupancy andLabour are the mythical parents of Pro-perty, but we shall be less wrong in as-suming that the pedigree was invented toaccount for the fact of possession than inattributing the fact of possession to thevirtues of the pedigree. But whatever wasits origin, the Western World has throughoutits long history shown an ever increasingdisposition to recognise the right of indi-viduals to the exclusive possession of certainthings, and these rights it has clustered


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12 GOPYBIGHT IN BOOKS.together, recognised, venerated, worshipped,under the word property.

To be allowed to enter this sacrosanctcircle is a great thing. None but the oldestfamilies are admitted. Our Common Law,for example, one of the most remarkableand on the whole worshipful systems thatever nurtured a nation of freemen, will notallow new titles, new estates in land, newmodes of inheritance, new fetters on the dis-position of things, and to establish your claimto joLa the august company of owners youmust be able to make out that the right youcontend for was recognised as property by theancient customs of the yealmthat it is somesort of real or descendible estateor if notthat, goods, debts, or contracts. Once insidethis circle your rights were supposed in someromantic way to be outside the chill region ofpositive lawthey were based upon naturaljusticeand were indeed natural rights, exist-ing previously to the social contract, andwithout which Society was deemed impossible.Nor were these romantic conceptions merejeux d^esprit. Consequences flowed fromthem. If your right to turn your neighbour


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INTBOBUOTOBY. 13off your premises to keep your things toyourself was property, and therefore exhypothesi founded on natural justice, hewho sought to interfere with your completedominion was a thief or a trespasser, but ifyour rights were based upon some specialconcession made to you upon your ownmerits, you then found yourself dubbed amonopolist, and the brave man who soughtto get the better of you was, at the worst,an infringer or smuggler. Monopoly isalways an odious word. -Property is still asacred one. Marmontel, in his Memoirs, tellsus of an interview with Bassompierre, abookseller, or, as we should now call him inthis department of his business, a publisherof Li^ge. Bassompierre had made sucha good thing out of the sale of Marmontel'sfamous Belisaire that he felt compelled tocall upon the author, who was passingthrough his town, and thank him for theservice he had rendered. Marmontel wasfurious. What, says he, you first robme of the fruits of my labours, and then havethe effrontery to come and brag about itunder my nose Bassompierre was amazed.


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14 COPYRIGHT IN BOOKS.It had not struck him in that light.Monsieur, said he, you forget Li^ge isa free country, and we have nothing to dowith you and your privileges. ^

There is a good deal in a name.The struggle, Property or Privilege,

had substance in it. If authors or theirassignees could make out that their rightto the exclusive multiplication of copies oftheir books ought to be regarded as pro-perty, in the same way as lands, houses,goods and chattels, it followed that thisright' was one of indefinite duration, andcould be so disposed of in the market intervivos, or bequeathed or left to descend torelatives according to the laws of inherit-ance. If, on the other hand, it was notproperty but privilege, then its term ofenjoyment could and would be measured,limited, restricted, according to the wordingof the Letters Patent, or of the Act of theLegislature or other document which created it.

The authors and their friends in France puttheir case somewhat in this fashion. A manconceives the idea of a literary work ; he

^ See Marmontel's Memoirs, Book viii.


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16 OOPYBiaET IN' BOOKS.somewhere in splendid isolation, whatevermay be the number of the copies, and were thepurchaser of a single copy to reproduce othercopies from it he would thereby wholly orin part destroy the value of the propertystUl in the hands of the owner of the original..To do this would be a wrongful act, and isusually so regarded whilst the author lives.If authors lived for ever, few would disputetheir perpetual copyright ; but what differencecan his mortality make in the nature or char-acter of his right, which is not a right toideas, but simply to the perpetual reproductionof a manuscript ? It is the text that must notbe reproduced without permission. The textor the manuscript is the material object of theproperty-right ; and the fact that copies arestruck off to make reading easy, and that itis as easy to print from a copy as from theoriginal, makes no real difference in thenature of the right, though it may makeit more difficult of enforcement.

The answer to this amiable reasoningwas of this kind : Property means exclusion,and all that the laws do is to protect peoplewho are lawfully in possession of their own


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INTRODUOTOBY. 17or to restore their property to those whohave been dispossessed by force or fraud.So if an author is robbed of his manuscriptthe law will do what it can to punish thethief, and this for the protection of property_and for the preservation of the peace, whichmust be perpetually broken if trespass, rob-bery, and disseisin are of frequent occurrence.The essence of Property is an unwilling-ness to share it, but the literary art lives bycommunication; its essence is the. telling of atale with the object of creating an impressionand of causing repetition. A tells a tale inprose or verse to B, who is so mightilytickled by it that he repeats it to C, whopours it into the ear of D, and so on. Canone imagine copyright in a fable of ^sopor a proverb of Solomon ? Publication isdedication to the public subject to suchterms and conditions as wisdom or prudencemay ask for, and justice or generosity mayallow. Was there ever an author who wouldnot sooner publish and starve than notpublish at all ? This proves that the author'srights are not based on a desire to exclusivepossession of that which he has written.


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18 OOPYBIGHT IN BOOKS.He does not -want to be left alone with hisown. His desire is to make his book known,and by publication he gives it to the world.

This was the character of the argumentsemployed in France against the theory ofproperty in books. It cannot be said thateither party to the controversy obtained evena forensic success. More and more did theleaders of French opinion recognise theclaims of authors to be rewarded for theirlabours, but equally did they perceive howimpossible it was to confer upon them rightsequal in duration to those which, in moreprimitive times, owners of other kinds ofarticles had been allowed to acquire. M. deLamartine, the poet, had no difficulty indeclaring that there ought to be no differencebetween an author's right' to his owfi bookand a banker's right to his own securities,but M. de Lamartine, the legislator, talkeda different language. Noiis Hions une Com-mission de Uffislateurs et non une AcadSmie dephilosophes You can all guess what iscoming. When a man of letters remindsyou that he is speaking not as a philosopher,but as a politician, you know it is a peculiar


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INTBOBUOTOEY. 19kind of grace before an odd sort of mealthe good man is going to eat his own words.Lamartine proceeds with his dejeuner

Comme philosophes, remontant a la m6taphysiquede cette, question, et retrouvant sans doute dans lanature et dans les droits naturels du travail intel-lectuel des titres aussi fividents; aussi saints et aussiimprescriptibles que ceux du travail des mains, nousaurions iti amends peut-Stre k proclamer thferiquementla perp^tuit^ de possession des fruits de ce travail jcomme l^gislateurs notre mission est autre. Nous n'avonspas voulu la d^passer. Le l^gislateur proclame rarementdes principes absolus, surtout quand ce sont des v^ritfenouvelles ; il proclame des applications relatives, pratiqueset proportionn^es aux id^es rcQues aux moeurs et auxhabitudes des temps et dela chose dont il ^crit le code. i

In other words, mankind would not sub-mit to perpetual copyright, and so in Franceauthors have been very willing to take fiftyyears in addition to their own lives.

In England the question was complicated,and, indeed, butchered, by an Act of Parlia-mentthe first copyright statute anywhereto be foundthe 8th of Good Queen Anne.I shall have in a subsequent lecture to con-sider this perfidious measure, rigged withcurses dark, in more detail; enough now to

1 ifitudes sur la Propri6t6 Litt^raire, par M. EdouardLaboulaye. Paris, 1858, p. xx.


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20 OOPYBIGHT IN BOOKS.say that it was originally, such is the tradition,drafted by Dr. Swift solely in the interests ofauthors and booksellers, who, ever since theabolition of the Star Chamber and the subse-quent expiration, in 1679, of the Licensing Acts,found themselves much put about for sum-mary remedies against piratical printers, who,when pursued through all the forms of actionsin the King's or Queen's Bench, were accus-tomed, like John Bunyan's inimitable andimmortal Mr. Badman, to break, or if theydid not break, then, if I may use languagewhich has not the warrant of Bunyan, tobolt. Swift's draft BiU, hke Cranmer'srough draft of the Articles of our Faith,has unfortunately disappeared, but that itwas rudely treated in Committee is certain,though all we know now is the measure asit received the Eoyal Assent and remainedupon the Statute Book of the Realm untilrepealed in 1842. It was intituled, An Actfor the Encouragement of Learning, andrecited that it was enacted in order to enablelearned men to write useful books. By its pro-visions two terms each of fourteen years werecreated for all future publications, one term


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INTBODUOTOBY. 21to follow immediately upon the expirationof the other, if the author were still livingat the date of such expiration. Summaryprocessburning the stolen goods, etc.wasprovided against infringers, whilst if anypublisher should sell a book too dear,any person who conceived that to be thecase was at liberty to take the opinion onthat subject of the Archbishop of Canterbury,the Lord Chancellor, the Bishop of London,the Chief Justices of the Queen's Bench andthe Common Pleas, the Chief Baron of theExchequer, and of those two literary experts,the Vice-Chancellors of the Universities ofOxford and Cambridge, and if these autho-rities, or any or either of them, thought theprice high and imreasonable, they or he hadliberty to fix the fair price and full juris-diction over the costs of the application.

This well-meaning statute spoilt all. Itgave away the whole case of the Britishauthor, for amidst all the judicial difEerencesduring the la?t century on copyright therewas a steady majority of judges in favourof the view that but for the Statute ofAnne an author was entitled to perpetual


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22 OOPYBiaST IN BOOKS.copyright in his published work. This right(if it ever existed) the Act destroyed.Whether this judicial opinion as to theexistence at Common Law of perpetual copy-right in an author and his assigns was soundmay well be doubted, and possibly if theHouse of Lords had held in Donaldson v.Becket that perpetual copyright had survivedQueen Anne, an Act of Parliament would,sooner or later, have been passed curtailing therights of authors. But how annoying, howdistressing, to have evolution artificiallyarrested and so interesting a question stifled byan ignorant Legislature, set in motion not byan irate populace clamouring for cheap books(as a generation later they were to clamourfor cheap gin), but by the authors and theirproprietors, the booksellers.

On the details of the question I shallhave something to say hereafter; just nowit is enough to observe that it seems at firstvery curious how such a question as theduration of an author's rights in his ownworks could escape being determined oneway or the other until 1774. But the factis that after first publication the British


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INTBODUOTOBY. 23author usually disappeared, or if he did re-appear, it was in the pillory.

Ear-less on high stood unabashed De Foe,And Tutohin flagrant from the scourge below.''

The London booksellers managed thewhole business, and as a rule they respectedeach other's publications just as, until lately,the American publishers respected eachother's user of a British author. In theassignments which they took from authorsthe words for ever were always em-ployed, and in the commotion occasionedby the decision in Donaldson v. Becket theLondon booksellers asserted that they hadpaid authors, including Mr. Justice Black-stone, large sums for their books on thefooting of perpetual copyright, but whenone remembers how short is the life of anybook for which a bookseller would be will-ing to pay a high price, it is certain thatperpetuity cannot have entered much intothe calculations of the trade. What thebookseller pays for is in respect of an anti-cipated sale in the next decade or twonotin the next century. Who knows what theworld is going to read a hundred' years


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INTRODUCTORY. 25five pounds from the pocket of Symonds?The money market takes short views. Halfa century writes Finis to most authors, whilein the case of the few who prove to be forall time, the feeling of mankind would beone of resentment were there now livingin Paternoster Row or Madrid or Florencea capitalist who ' could say, Hamlet ismine, Sancho Panza is, mine, The'Inferno' bdongs to me. Who would notfeel that this disreputable bourgeois was theenemy, not the friend, of the world-wide geniusof Shakespeare, of Cervantes, of Dante ?

The claim to perpetual copyright wasborn too late to live. - Natural rightstheirempire is sped Listen to Mr. MatthewArnold: Now for me the matter is simplifiedby my believing that men, if they go downinto their own minds and deal quite freelywith their own consciousness, will find thatthey have not any natural rights at all. ^Property, he proceeds, is the creation ofLaw. True enough; yet if Mr. Arnold hadever had to consider what is the CommonLaw of England as distinguished from the

1 Irish Essays, p. 261.


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INTBODUOTOBY. 27tion, and most marvellously has he accom-plished his heart's desire.Our original copyright conceptions werewholly municipal. We wished to protect theBritish author, who published in Britain onBritish paper a book printed by Britishprinters. The learned men we sought to en-courage were of our own manufacture. Asfor foreign books, we had no great opinionof them ; but were they worth translating,Grub Street was full of needy scholars whofor a few shillings would place their contentsbefore the British reader, but the idea ofpaying for the privilege was quite alien tothe mind of the trade; and it must be re-membered that the publishing business hasalways in this country been in the hands of

,those whom Dr. Johnson called the Book-sellers, a most excellent and deserving bodyof tradesmen not in the least likely to givebirth to lofty thoughts about the universalrights of authors all the world over, unlessindeed they had acquired such rights by anabsolute assignment they believed to be valid.

In this matter, as in so many others,France has led the way. She was the first


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28 OOPTBIGET IN BOOKS.of the nations to make no difEerence in thenationality of an author, and to give toeveryone who published a book within herrealms, whether native or alien, whetherresident or non-resident, precisely the samerecognition. This France managed to do inthe very throes of her Eevolution, on the19th of July, 1793.

In 1838 we passed our first InternationalCopyright Act, empowering the Queen inCouncil to confer upon the authors of foreignbooks to be specified in the Order the soleliberty of printing and reprinting such bookswithin the British Dominions for such termas the Order should direct, not exceeding theterm to which British authors were then bylaw entitled.

In 1844 the last-mentioned Act was re-pealed, and a wider measure enacted whichauthorised the Queen in Council to directby an Order that as respects all or anyparticular class or classes of the followingworks, namely, books, prints, sculpture, andother works of art, to be defined in suchOrder which shall after a future time, to bespecified in such Order, be first published in


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INTRODUOTOBY. 29any foreign country to be named in suchOrder, tlie authors, designers, engravers, andmakers thereof respectively shall have copy-right therein during the period defined inthe Order, but not exceeding the term whichsuch persons would enjoy had their worksbeen first published in the United Kingdom.This Act (7 and 8 Vict,, c. 12), by its,tenthsection, prohibited the importation into anypart of the British Dominions of copies ofbooks wherein there was subsisting Britishcopyright, which had been printed or re-printed in any foreign country by virtue ofany Order in Council. The 14tli clauseprovided that no such Order in Councilshould have any effect unless it was statedtherein that due protection had been securedby the foreign Power named in such Orderfor the benefit of British authors.

In 1851 a convention was concludedbetween Her Majesty and the FrenchRepublic for extending in each country theenjoyment of copyright in works of literatureand the fine arts first published in the other.This convention was confirmed by an Actof Parliament passed in 1852 (15 and 16


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00FYBI6HT IN BOOKS.Vict. c. 12), whicli also enabled Her Majesty tomake similar stipulations in any treaty on thesubject of copyright which might thereafterbe concluded with any foreign Power.

Numerous conventions have at differenttimes been entered into between GreatBritain and foreign Powers, but happily theyare now superseded by the Convention opBeene, which created among the States whoacceded to it a literary and artistic Unionfor the protection of authors and artists.The 9th of September, 1886, the date whenthe plenipotentiaries signed the Convention,is a red-letter day in the annals of literature,and marks a true epoch in the cloudy history ofmen of letters. Authors and artists may wellbe proud of having secured for themselves andtheir works the first place in the stiU scantyrecords of the Parliament of Man and theFederation of the World. The first two articlesof the Convention of Berne are as follows :

Article P''. Les pays contractants sont constitu^sk r^tat d'Umon pour la protection des droits des auteurssur leurs oeuvres litt^raires at artistiques.

Article 2. Les auteurs ressortissant -k Tun des paysde rUnion ou leurs ayants cause jouissent dans lesautres pays, pour leurs oeuvres, soit publi^es dans un


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INTBODUOTOBY. 31de ces pays soit non-publi6es, des droits que les loisrespectives accordent - actuellement ou accorderonfc parla suite aux nationaux.

La jouissance de ces droits est subordonn^e h,racoomplissement des conditions et formalit^s prescritespar la legislation du pays d'origine de I'oeuvre ; elle nepeut exc^der dans les autres pays, la dur^e de laprotection accord6e dans ledit pays d'origine.

Est consider^ comme pays d'origine de I'oeuvrecelui de la premiere publication, ou, si cette publicationa lieu simultan^ment dans plusieurs pays de I'Union,celui d'entre eux dont la legislation accorde la durgede protection la plus courte.

Pour les oeuvres non publides, le pays auquelappartient I'auteur est consider^ comme pays d'originede I'oeuvre.''

The first signatories were Germany,Belgium, Spain, France, Grreat Britain,Haiti, Italy, Switzerland, and the Bey ofTunis, a dignitary who, though not con-spicuously literate, was usually of the sameway of thinking as France. Since the5th of September, 1887, when the formalratifications of the signatures of the pleni-potentiaries were exchanged, Luxembourg,Monaco, Montenegro, and Norway havejoined the Union.

In 1896 a diplomatic conference on In-ternational Copyright met in Paris to discuss


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32 OOPYBIOHT IN BOOKS.a revision of the Berne Convention, and drewup what is called the Additional Act of the4th of May, 1896, and a declaration explan-atory of certain stipulations of the Convention.

Reading the original Convention of Berne,together with the modifications of 1896, wefind that an author, whether he belongs toa country inside or outside the Union, if hehas complied with the formalities of publica-tion required by the municipal law of thecountry 'belonging to the Union where hisbook is first published, enjoys the full pro-tection which the Union guarantees; that isto say, he is protected against unauthorisededitions, unauthorised translations, and, ifhe is a dramatist or an artist, against un-authorised representations or exhibitions ofthe work he has published in one of thecountries of the Union.

This is, indeed. International Copyright.Practically the value of the Convention turnsupon its provisions as to Translations. Forpopular purposes in Britain it is not muchuse to say to a Heine, or even to a Hugo, You shall be protected within the Britishdominions as a German or a Frenchman


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INTBODUOTOBY. 33in your original garb, for it is only bymeans of translations that foreign authorscan become widely known in so unilinguala country as that of Her Britannic Majesty.

On this question of translations, were therights of the original author to be based onmetaphysical conceptions of property, labourand occupancy, there would be much roomfor word-chopping. Happily, the rights ofthe original author now rest on the Conven-tion of Berne as amended in 1896.

By Article 5 of the original Conventionauthors publishing in any of the countries ofthe Union, or their assigns, are to enjoy inthe other countries the exclusive right ofmaking or authorising the translation of theirworks until the expiration of ten years fromthe publication of the original work in one ofthe countries of the Union. By the amend-ing Act such authors are to enjoy thisexclusive right during the whole period oftheir copyright, provided that they do withinten years from the date aforesaid publish anauthorised translation of their own.

Simple as these provisions sound theyrepresent an enormous stride forward along

c


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OOPTBIGET IN BOOKS.the path of civilisation, and perhaps ,in ourmoments of excitement we may hail them asharbingers of that good time coming whenthere shall be a common law for Europefounded upon an international recognition ofmutual rights and obligations.

Russia and Holland are the most importantof the European States which remain outsidethe Convention of Berne. Eussia is knownto be engaged in a revision of her ownmunicipal law, which at present grants copy-right to Russian authors for the period oftheir lives, plus fifty years. It is believedthat she is willing to concede the same rightsto all works pubKshed in Russia,- whether theauthor is a Russian or a foreigner. It is notthought likely she will join the Berne Con-vention. In HoUand the Netherlands Unionfor the Advancement of the BooksellingTrade has lately decided, by a majority of81 to 40, to take no steps in favour of theadhesion of Holland to the Berne' Union.

But splendid though the Convention ofBerne and International Copjn-ight may be, tothe British author who longs for a huge public,for greater sales, for an income that rolls and


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INTBOBUOTOBY. 35swells and accumulates, the accession of theRepublic of Liberia, the original adhesionof the Bey of Tunis, and of the Presidentof the Republic of Haiti to the Conventionof Berne are matters of small moment ; evenFrance and Spain do not annually absorbmuch of our literature. No a British author'sthoughts wander in the direction of thesetting sun-^to America and Canadawhereby vast leaps and bounds a population growsand grows ; where all can read, and wherethe English language is universally spoken.

The attitude of the United States ofAmerica with regard to British authors waslong a sore subject. Ephraim, says theProphet Hosea, is a wild ass that tramplethdown the corn alone. The publishers ofAmerica were like Ephraim. They defendedthemselves by saying that their customers wereyoung and well educated and poor, and bookswere articles of necessity and unreasonablydear, and have them they must, else their peopleswould, if not perish, at least pine. After all,the American publishers only did what theDublin printers used to do before the Actof Union, and what most publishers would do


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36 OOPTBiaST IN BOOKS.but for the law. There were always in theUnited States men who advocated a changein the law^the founders and supporters of theAmerican Copyright League^who struggledvaliantly in the good cause, and ultimatelyachieved a great success. By Acts of theLegislature, dated 3rd of March, 1891, the3rd of March, 1893, and the 2nd of March,1895, foreign authors, whose books have beenfirst printed in the United States, and whoobserve certain conditions and formalities asto the deposit of copies, and so forth, havethe same exclusive rights as American authors,the duration of which is for a period oftwenty-eight years from the date of pubKca-tion, and for a further period of fourteenyears, if at the expiration of the twenty-eightyears the author is still living, or if there isthen still living a widow, or a child, orchildren of the author. There was a greatdeal of grumbling and dissatisfaction withthe stipulation as to American printing, butin matters of this kind the United States areonly a little behind us. There can be nodoubt whatever that in 1842, when our firstmodern copyright statute was passed, we only


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INTBODUOTOBY. 37intended to protect books printed in GreatBritain. Anyhow, America is now a TomTiddler's ground for British authors whochoose to print there; but I am not surethat they have picked up quite so muchAmerican gold and silver as they hoped todo. As to this, however, I have no facts tocommunicate. For a great many Britishbooks there is no demand in either the Statesor Canada.

The great thing still to be done is tolabour for uniformity of copyright law in allparts of the world. Some general consensusas to duration would be eminently desirable.At present we have every variety. InMexico, Guatemala, and Venezuela, three notvery literary states, it is perpetual. In mostcountries it is for the lifetime of the authorplus a term of years.

Thus, in Spain the term is life and eightyyears.

In France it is life and fifty years.In Germany it is life and thirty years.Whilst in Peru it is life and twenty years.In Brazil it is life and ten years.In Chili it is life and five years.


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38 COPTBIGET IN BOOKS.In Italy a more complicated rule prevails.

Copyright always lasts for the author's life,and if the author does not live for fortyyears after publication the copyright con-tinues until a term of forty years has expired.At the expiration either of the author's lifeor of this term of forty years, whicheverproves to be the longer, another term offorty years begins, during which anybodycan publish the books on terms of paymentof a royalty to the owner of the copyright.Here at home the term is for life plus sevenyears, or a term of forty-two years from thedate of first publication, whichever may provethe longer. In America, as I have alreadyhad occasion to mention, the term is fortwenty-eight years, and then for a furtherterm of fourteen years, if the author or anywidow or child is living at the expiration ofthe twenty-eight years.

It will, I expect, be generally agreedthat the simplest arrangement is for lifeand a term of years after death, and prob-ably fifty years would not be thought toolong. I shall have to return to this subjectagain.


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II.

THE ORIGIN OF COPYRiaHT.


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41

II.THE ORIGIN OF COPYRIGHT.

Manuscripts are quite out of the case. They could produce no profit. Therefore I shall begin from the introduction of printingby Caxton, in 1491. Thus did the wilyWedderbum, in 1760, begin his argumentfor the plaintiff in the copyright case ofTonson v. Collins (of which we shall hearmore), and he was right enough in thuscoolly giving the go-by to all the centuriesbefore the fifteenth of our present era.CarefuUy as the search after copyright hasbeen conducted by laborious and erudite per-sons, no mere lawyers like Wedderburn,Thurlow, Blackstone, and Dunning, retainedand refreshed by fees, but by authors bear-ing such Shandean names as Reinelius,Thomasius, Fabricius, Crenius, and Mencke-nius, not a trace of it has been discoveredin the days of manuscripts, cop3dsts, andplagiarists. The lively tale recorded by


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42 OOPTBIQET IN BOOKS.Montalembert in his Moines de V Occident,and retold by Mr. Putnam in his interestingvolume, Books and their Makers during theMiddle Ages (G. P. Putnam's Sons, 1896),how St. Columba, sitting up all night to doit, furtively made a copy of abbot Fen-nian's Psalter, and how the abbot protestedas loudly as if he had been a member ofthe Stationers' Company, and brought anaction in detinue, or its Irish equivalent, forColumba'8 copy, and how King Diarmed,sitting in Tara's halls, not then deserted,gave judgment for the abbot, saying la gachehoin a boinin, that is, to every cow her calf,and accordingly to every book its copy,has been voted unworthy of belief, and thisin the teeth of the fact that the identicalcopy of the Psalter in St. Columba's well-known handwriting was so recently as 1867in the possession of an Irish baronet, andexhibited in the Museum of the Royal IrishAcademy at Dublin

But though Wedderburn was rightenough in a copyright case to begin withCaxton, he was wrong in his statement thatmanuscripts could produce no profit, nor


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TEE ORIGIN OF OOPYBIOET. 43is it possible to agree with a more recentauthority, M. Edouard Laboulaye, that la raisontout simple why the ancients knew nothingabout literary property was that printing wasnecessary to make une oeuvre d'esprit anarticle of commerce. We are all of us, evenmembers of the Institute, too apt to ex-aggerate the efPects of mechanical contri-vances. There were books and booksellers,and libraries public and private, bookhuntersand bookstalls, in Cappadocia and otherplaces, before Fust and Grutenberg. Mr.Putnam brings this home tous well in thefollowing passage :

Teachers like Origan in Osesarea in the thirdcentury, and St. Jerome in Bethlehem and St. Augus-tine in Hippo in the fifth century, put forth long seriesof writingsreligious, philosophical, and polemical-withapparently an assured confidence that they would reachwide circles of contemporary readers, and that theywould be preserved also for generations to come. Thesacking of Rome by Alaric (in 410) is used by St.Augustine as a text or occasion for the publication ofhis beautiful conception of 'The City of God,' in muchthe same manner as a preacher of later times mighthave based a homily on the burning of Moscow or thefall of Paris. The preacher of Hippo .speaks as if hewere addressing, not the small circle of his African


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U GOPYBIQET IN BOOKS.diocese, but mankind at large. And he was justified inhis faith, for the Be GivUate Dei was the book which,next to the Scriptures, was most surely to be found inevery monastery of Europe. PuPnam, i. 32.

Our own Bede, too, who spent all hislaborious days in the diocese of Durham, onthe shores of the Tyne, what was there hedid not kpow? He knew both Greek andLatin; he was a poet, a rhetorician, ahistorian, an astronomer, an arithmetician,a chronologist, a geographer, a philosopher,and a theologian. Were the Venerable Bedeto come to life again and to resume (as heinstantly would) the studies which wereinterrupted by his death in the eighthcentury, who can doubt that in five years hewould have caught up Lord Acton, Mr.Jebb, Mr. Gardiner, the Bishop of London,and Dr. Fairbaim, and once more assumea place among the scholars and theologiansof Europe? And yet the whole of hisknowledge was gained from the ordinarymonastic sources. Dr. Maitland, the trueglory of Lambeth, in his fascinating seriesof articles to the British Critic, r.epublishedunder the title. The Dark Ages, says :


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TSE OBiaiN OF OOPYBIQHT. 45 We are, on the one hand, familiar with the Press

used to see its rapid multiplication j filled with the ideaof its almost unlimited powers. We are, on the other,but little accustomed to read any large mass of manu-script, or to write continuously anything which could becalled a book. . . . Thus, I think, we are apt to be ledinto error when we think we are comparing the respec-tive powers of hand-writing and the Press. ... Ibelieve that the history of printing will bear me outin this, that although the power of , multiplication atwork in the Dark Ages was below that which nowexists, and the whole actual produce of the two periodsnot to be compared, yet, as it regards those bookswhich were considered as the standard works in sacredand secular literature, the difference was not so extremeas may have been supposed. I may illustrate my mean-ing by asking what proportion the copies of Gregory's' Morals ' or Augustine's ' City of God,' printed betweenthe years 1700 and 1800, bear to those vsritten betweenthe years 1100 and \2QQ1 Dark Ages, 415.

The labours of the Scriptorium wereindeed incessant, and though Montalembertis an enthusiast and must be read withcaution, his opinion is worth citing thatduring the eleventh and twelfth centuriesthe great classical writers were more generallyknown and appreciated than when he wrotehis Moines de P Occident The stories thathave come down to us, and are sometimesrepeated in the colimms of country news-


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46 COPYBIOHT IN BOOKS.papers, about the enormous prices paid in theDark Ages for particular manuscripts, mustbe read with the judicious reserve recom-mended by Maitland. Only the otherday 416 was paid for a copy of Walton's Compleat Angler, and it would perhapsbe no rasher for a writer fiye hundred yearshence to draw from this undoubted fact aninference as to the market price of TheCompleat Angler in 1898 than it is for usto dogmatise about the price of manuscriptsin the eleventh century from the oftenretailed anecdote in the Annates Benedictineswhich tells how Agnes, the wife of G-eofErey,Count of Anjou, bought of a priest namedMartin a collection of homilies, and gave forthe same, by way to wit of barter or ex-change, two hundred sheep, three hogsheadsof wheat, millet, and rye, some skins ofsable, and four pounds in silver. It was abig price for a sermon, but have I not myselfseen a printed copy of the De Civitate Deiknocked down at auction for 1,000 amidstthe applause of a crowd to whom it wouldhave been rash to impute much familiaritywith the masterpiece of St. Augustine ? Yet


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THE OBIOIN OF OOPYBIGST. 47in the same sale I was able to buy an ex-cellent copy of the same book (though notof the same edition) for seven shillings andsixpence.

That books were dear in the eleventhcentury and are (some of them) cheap atthe end of the nineteenth is certain enough,but that there were books bought, booksread, and books collected before the movabletypes were invented is also certain, and oughtnot to be forgotten when the origin of copy-right is the subject under consideration.

The trade in manuscripts increased inbulk, and under the protection of theUniversities, those great mediaeval institutions,of powerful ecclesiastics, and cultivatedmonarchs, developed into a vast industry.You may read in M. Renouard's authorita-tive book, Des Droits d'Auteurs (Paris, 1838),how, at the date of the invention of printingthere were in Paris and Orleans alone tenthousand copyists. No doubt, M. Renouardadds, si Von en croit VillareV

It is therefore a fact of great significancethat at no time during the manuscriptperiod was any claim for author's copyright


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48 OOPYBIGHT IN BOOKS.made or asserted. It is useless to say therewas no need for such a claim. True it isthat the books reproduced by the copyistswere, for the most part, old bookseither ofdevotion, psalters, homilies, and the like, orthe classical authors; but the same is largelytrue at the present day; and there are nomembers of the genus irritalile more jealousof their rights and more envious ofeach other's reputations than rival editors,annotators, and compilers. With ten thousandcopyists at work in Paris and New Orleansalone, s? Von en croit Villaret^'' the exclusiverights of living writers, if such rightsexisted, must have been infringed by thebusy pens of the transcribers. The inventionof printing, had it stood alone, was nothingmore than a clever labour-saving device formultiplying copies more quickly and cheaplythan by hand, nor did it involve the birthof a new property-right. Were it lawful tomake fifty copies of a book by hand, itwere equally lawful to make five hundredby means of a printing press. The newprinters pursued precisely the same plan asthe old copyists. They had never heard of ''


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THE OEIGIN OF GOPYBIGST. 49an author's copyright. When Frobenius ofBasle was minded to print an edition ofthe Adagia of Erasmus, he never thoughtof asking by your leave, and Erasmus, sofar from being angry with a piraticalpublisher, sought out Frobenius and livedfor some years in his Tiouse and at hischarges. Printing by itself was not themother of author's copyright.

In considering the origin of copyright,two things must never be forgotten. First,the Church and her priesthood, frightenedand. who dare say unreasonably frightened?at the New Learning, and at the indepen-dence and lawlessness of mind and enthusiasmthat accompanied the New Learning ; and,second, the guilds or trade unions, jealous oftheir privileges, ever at war one with another,and making their appeal to the Crown forprotection against outside interference withtheir strictly defined domains of business.

M. Renouard has put this so graphicallythat it would be a shame not to give hisvery words :

II a ^ti dans la destin^e de I'imprinierie d'ap-paraitre dans le monde a I'^poque oil la r^forme ^bran-

D

^


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THE OBIGIK OF OOPYRIQET. 51son dotnaine inq,rqu^, dans lequel elle se tint enferm6e,mais ou elle seule eut des droits. Les querelles deslibraires, soit avec les auteurs qui voulaient eux-mSmes Note this.exploiter leurs livres, soit avec les communautds reli-gieuses qui ^levaient la pretention d'avoir des presses^ elles, soit contre les merciers et les fripiers pour lescontraindre d, ne vendre que des almanachs et desab^c^daires, leur guerre active contre les ^fcaleurs etboiiquinistea, n'ont rien qui doive surprendre. Les tail-leurs plaidaient de meme contre les fripiers, les marchandsde drap contre les tailleurs, les cordonniers contre lessavetiers ; toutes les corporations, enfin, contre quiconqueparaissait empi^ter sur leurs monopoles. Daus tous lestemps, et par la nature mSme des choses, les procte etles monopoles seront toujours inseparables. Benouard,i. 29-30.

This Tivacious language brings us face toface with the censorship .of the Press andthe monopoly of the booksellers, and fromthese two independent and occasionallyclashing interests sprang copyright.

As to the censorship of the Press, nobodyeither on the Continent of Europe or here athome thought of disputing it. In Paris, inLondon, in Greneva, it was applied withequal vigour, though to different subjectmatter. It is impossible to have anyacquaintance with the publications of the15th and 16th centuries without amazement


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52 GOPTBIGET IN BOOKS.at the recklessness, the scurrility, the foul-mouthedness, as well as the mental distm-b-ance and moral laxity displayed by toomany of them. Even the wit of such aman as Ulrich von Hutten is disagreeablycoarse, whilst the vulgar buffoonery of themajority who had no wit is depressing. Afree Press in those days was an idea not tobe tolerated. Even at a later date and aquieter time, our own John Milton, a solitarypamphleteer, a non-church-goer, and a mostunrepresentative man, retained the fire andthe executioner as the most effectual remedy.for those books which he found mischievousand libellous. Did Milton mean found bya jury ? I think not.

It would be out of place to attempt herea sketch of the history of the censorship.What I want to emphasise is the distinctivebut co-operative effect of the licensing ofbooks and the licensing of booksellersim-primaturs- and privileges. Readers of oldbooks must occasionally have found theimprimaturs more anmsing than the con-tents. Milton makes very merry with them. Sometimes five Imprimaturs are seen to-


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THE OBIQIN OF OOFYBIGET. 53gether dialogue-wise in the Piazza of oneTitle page, complimenting and ducking eachto other with their shaven reverences,whether the Author, who stands by in per-plexity at the foot of his Epistle, shall tothe Presse or to the Spunge. The proudspirit of Milton, condemned as rebelliousboth by Dr. Johnson and Cardinal Newman,had to submit to the indignity of an im-primatur for ''Paradise Lost itself. Butnow the only trace we have left in ourpossessions (India excepted) of Press censor-ship (for the supervision exercised by HerMajesty over the Court Circular hardlycounts) is that absurd official, the Censor ofPlays.

The most noticeable difference betweencensorship in France and in England isthat with us the authority has always beencentralised and derived from the royal pre-rogative. In France there were originallyas many censors as there were ecclesiastics,whilst the Universities and the Parliamentsall had their say in the matter. Ultimately,and in obedience to the general courseof French history, the king became the


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64. COPYBIGET IN BOOKS.universal custodian of every kind of authority,and garotted the Press as and when he chose.

In England the early printers, Caxton,Pynson, and Wynkin de Worde, worked forprivate patrons, and produced the volumes,now the pride of the library, not to supplyany existing demand, but to satisfy them-selves and their employers. Caxton's bookshave no imprimaturs or cum privilegio,^ but itwould be rash to infer from this, as Yorke,Solicitor-General, did in arguing^ Basket v. TheUniversity of Cambridge (1758), that the Crownnever claimed a prerogative over the Pressuntil the Stationers' Company became a cor-poration in the reign of Philip and Mary.The introducers of any new industry wouldnaturally seek both the protection and thepatronage of the Crown, whilst to peddlenew ideas in print has at all periods ofman's history exposed the pedler to painsand penalties of divers kinds. In the timeof Henry VIII. authors had other things tothink of than half profits or good royalties.

' Pynson's books frequently have. Manuscripts are inexistence prefaced with cnrn privilegio.

2 1 W. Blackstone's Reports, 105.


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THE ORIGIN OF GOFTBIGHT. 55But it was different with the printers orbooksellers, who from the beginning of thingswere alert to make a little money out oftheir calling, and their best chance of doingthis was to secure for themselves the ex-clusive right of printing particular books.This was done by means of letters patentissuing from the Crown. The first and chiefamong these monopolists was the king'sprinter, to whom belonged, by virtue ofletters patent granted from time to time,the sole right of printing any book or workof the king's, save as might be excepted,in the English tongue. These king's booksincluded

(a) Acts of ParHament and their abridg-ments.

(b) Since the great Submission of theClergy and the Act of Supremacy,all books of the rites and servicesof the resettled Church of England.

(c) Bibles and Testaments.(J) Law Books and Year Books.(e) Almanacks.(/) Educational works, Latin grammars.

Henry VIII. appointed a printer, but the


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56 GOPYRIOHT IN BOOKS.first appointment by letters patent wasmade by Edward VI. in 1547.These prerogative books are supposed bylawyers to be a class by themselves; in fact,to be the king's copyright by virtue ofsome quality residing in the books, or inthe circumstances attendant upon their firstproduction. This may be so, but it is guess-work, and our actual monarchs do not seemso far, at all events, as appointing printerswas concernedto have struck any distinc-tion between one kind of book and another.In 1534, Henry VIII., by letters patent,granted to the University of Cambridgelicence to appoint three printers who might,within the University, print and put to saleomnes et omnimodos libros which might beapproved by the Chancellor (or his Vice) andthree Doctors. Here we see a claim by theCrown to authorise and appoint both licensersof books and publishers of books. Henry'sletters were confirmed by a statute of Eliza-beth. No doubt, in 1758, when the grant ofHenry came to be considered by Lord Mans-field, that eminent judge, who was, as we shallhereafter see, an author's man, cut it down


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THE OBIOm OF COPYRIGHT. 57to the King's Books or Copyright of theCrown ; for, said he, the constructionof the law is that the Crown only intendedto do that which by law it is entitled todo. ^ But between the opinions of 1758 and1534 as to what the Crown could lawfullydo there is no room for much difference.Letters patent were not always so generalin their terms; they were sometimes grantedto a particular bookseller in respect of aparticular book, and sometimesthough thisis rareto ah author in respect of a par-ticular work. When this was done the grantwas alwaya for a term of yearsseven,fourteen, twenty-one, or the like. In fact,it was a monopoly, and nothing else, thoughwhen monopolies were practically destroyedby the famous statute of James I., bookswere in terms excluded from its provisions.

I mention these things because theyshow how. closely interwoven is the censorshipof the Press with the monopoly of the book-sellers, and how both are controlled by theprerogative and practice of the Crown.

Both at home and abroad the questions1 See Basket v. University of Cambridge, 1 W. Blackstone, 123


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58 COPYRIGHT IN BOOKS.we are considering were much affected bythe laws against heresy. Strictly speaking,heresy hunting is only a matter of police/and many of the proceedings against booksand printers and importers were foundedupon the plain provisions of our statutelaw. Still, as the printing press did becomethe great instrument of circulating the newideas, and as the most expeditious way ofgetting rid of an edition is to burn it, themuch-vexed authorities, fully persuaded bothof their power and their duty to suppressunlawful thinking, had to seek out summaryremediesshort shrifts. In this they weregreatly assisted here in England by theCourt of Star Chamber. This court playeda great and sometimes a very useful partin our domestic history. It exercised thejurisdiction of the Court of Chancery with,at all events, some of the celerity of thepolice magistrate, and it brought the author-ity of the Crown to bear directly uponmany a tyrant of the country-side andtruculent family bully. It administered

1 In saying this I have in mind a period of history afterthe final breach with Rome.


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THE ORIGIN OF COPTBIOHT. 59interrogatories, and asserted the right to putto the torture those whom it adjudged guiltyof contempt of its proceedings in refusingto answer when they were in a position todo so. It was a sinister place, and- quiteout of keeping with our common la,w, butit was marvellously well adapted to dealwith unlicensed booksellers arid hereticalwriters. Its proceedings, so far as reported,and so far as such reports exist, may besearched in vain for any trace of author'scopyright. Heresy, libel, infringement ofletters patent and of the rights of theking's printer, and of other licensees, ex-amples of all these are to be found, butof the author in pursuit of his rights asan author, the oracle is dumb.

From time to time the Star Chamberissued its decrees relating to book-licensingand book-printing, until in 1637 it proceededto codify its law upon the whole subject.This famous decree is one of the firstexamples we possess of an attempt to codifyin one comprehensive measure the whole lawon any particular subject ; and though the StarChamber was destined shortly to perish, yet


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60 OOPYBIGHT IN BOOKS.when the Parliament of Charles II. desiredto enact its Licensing Act (13, 14, Car. II.,c. 33), it did little more than adopt as itsown the substance and the language of thecodifying decree of 1637 concerning printing.

In considering the terms of this decreeor code we must not be led aside from ourmain purpose, which is the origin of copy-right. It contains thirty-three clauses, andregulates the whole Printing trade, descend-ing to many details it is unnecessary tomention. The decree may be read in Mr.Edward Arber's edition of Milton's Areo-pagitica one of that series of Englishreprints for which the student is eternallyMr. Arber's debtor. Among its main pro-visions are the following :

First. It decreed that no person shouldprint any book or pamphlet until the same hadbeen first lawfully licensed and entered upon theregister books of the Company of Stationers.

Second. Of law books, the licensees werecertain of the judges ; of history, the Secre-taries of State ; of heraldry and titles of honour,the Earl Marshal ; of all other books, whetherof divinity, physic, philosophy, or poetry.


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THE OniaiN OF OOPYBIOHT. 61the Archbishop of Canterbury or Bishop ofLondon, except that within the Universitiesof Oxford and Cambridge the Chancellorsor Vice-Chancellors were the licensees, notmeddling with books of the common lawand affairs of State.

Third. The duty of the licensees was totestify that the book contained nothingthat was contrary to the Christian faith andthe doctrine and discipline of the Church ofEngland, nor against the State or Grovern-ment, lior contrary to the good life or goodmanners or otherwise as the nature andsubject of the work may require.

Fourth. That no person shall within thekingdom or elsewhere print or import any copy,book, or books printed beyond the seas orelsewhere which the Company of Stationersor any other person or persons have or shall hyany letters patent, order, or entrance in theirregister hooks or otherwise have the right, privi-lege, or authority solely to print, upon painof loss and forfeiture of such book or books.

Fifth. Every printer of any books, ballads,charts, portraiture, or any other thing shallset his own name, . as also the name of the


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62 GOPYBIGST IN BOOKS.author, thereunto, upon pain of forfeiture ofthe books, the defacement of the press, andcorporal punishment.

Sixth. To forge or counterfeit upon anybook ths name, title, mark, or vignette ofthe Stationers' Company, or of any particularperson or persons which have or shall havelawful privilege, authority, or allowance toprint the same, was made punishable by im-prisonment.

Seventh. No haberdasher, ironmonger,chandler, shop-keeper, or any other personnot having been seven years apprentice to abookseller, printer, or bookbinder shall inLondon or elsewhere sell any Bibles, Testa-ments, Psalm books, primers, abcees, alman-acks, or other book or books whatsoeverupon pain of forfeiture of the books andother punishment.

Eighth. No press or printing-house to beset up or demised without notice first givento the master and warden of the Stationers'Company.

Ninth. Twenty master printers named,each' of whom was allowed the use of onepress or more.


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THE OBIGIN OF GOPYBIOET. 63Tenth. For the better discovery of print-

ing in corners without licence, the masterand wardens of the Stationers' Company-were, authorised to take such assistance asthey should think needful and go in searchof printing-houses, and to view what is inprinting, and to call for the licence, and ifunlicensed to seize upon so much as isprinted, and so on.

Lastly, Every printer was ordered to de-liver a copy of every book new printed orreprinted by him at the Common Hall ofthe Stationers' Company to be sent to theBodley Library at Oxford, pursuant to anagreement betwixt Sir Thomas Bodley andthe company.

There is nothing here to help us, unlesswe can make something out of the fourth ofthe above quoted provisions. The wordingis a little vague, but its upshot is that nobook was to be printed in England of whichthe exclusive right of printing already be-longed' to the Stationers' Company or to anyother person. How could such an exclusiveright be obtained ? The clause proceeds tosay (1) by Letters Patent, (3) by Order, (3)


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64 GOPTRIGET IN BOOKS.by Entrance in tte Register Books of theCompany, (4) Otherwise. Nos. 1 and 2 areCrown grants. No. 3 is by entry on thecompany's books. But what is No. 4 ?Are the words or otherwise words ofabundant caution put in by the draftsmanas a net in which to catch any accidentalomission, or can they be taken to refer tothe exclusive right of the author of a pub-lished book to multiply or withhold copieson his own terms? They may cover such aright if it existed, but to suppose that theyreferred to it, i.e. that the draftsman had itin his mind, is (I think) out of the question^

One thing is plain enough, and that isthat by 1637, and indeed long before, theWorshipful Company of Stationers had gota firm grip of the book trade and of theproducers of books. But the Stationers de-serve a lecture to themselves.

The Star Chamber was aboKshed in 1640,and with it perished its decrees, its pains,and its penalties.

In January, 1642, the House of Com-mons made the following order, which isinteresting as recognising in unusual and


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TUB- ORIGIN OP OOPYHIOHT. 65indeed unique terms the rights of authors.It is ordered that the Master and Wardensof the Company of Stationers shall be re-quired to take especial Order that theprinters do neither print nor reprint any-thing without the name and consent of theAuthor. And that if any Printer shall not-withstanding print or reprint anything with-out the consent and name of the Authorthat he then shall be proceeded against asboth Printer and Author thereof, and theirnames to be certified to this House.I suspect the real object of this orderwas to punish printers and in no way toprotect authors. I cannot find any record ofaction being taken under its terms.

In March, 1643, the House of Commonsauthorised a committee to search for printingpresses where scandalous and lying pamphletswere printed, and to destroy them, and tocommit to prison the printers and vendorsof such pamphlets ; and m June of the sameyear the Lords and Commons assembled atParliament published the order which excitedthe indignation of Milton and occasioned theAreopaffitica.


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66 GOPYEIOET IN BOOKS.This remarkable order, after reciting that

very many as well stationers and printers asothers of sundry professions, not free of theStationers' Company, had taken upon them toset up private printing presses in corners andto print and sell books, etc., and that byreason that divers of the Stationers' Companyand others being delinquents (contrary toformer order and the constant customused among the said Company) had takenliberty to print, vend, and publish the mostprofitable copies of books belonging tothe Company and other stationers, orderedthat no book, etc., should be printed or soldunless the same had been first licensed underthe hands to be appointed by both or either.Houses and entered in the register book ofthe Company of Stationers according to ancientcustom, and the printer thereof was to puthis name thereto ; and, further, it wasordered that no person should print or re-print any book heretofore allowed of andgranted to the said Company for their reliefand maintenance of their poor without theconsent of the master wardens and assistantsof the Company, nor any book or books


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THE OBiaiN OF G0P7BI0HT. 67lawfully licensed and entered in the registerof tlie said Company for any particularmember thereof without the license andconsent of the owner or owners thereof.

On this order Milton makes two com-ments which have been made to play a partin this copyright controversy. Near thebeginning of the Areopagitica he says : Forthat part which, preserves justly every man'scopy to himself or provides for the poor Itouch not. And at the very end of hisimmortal tractate he says : And how it [i.e.the policy of licensing books] got the upperhand of your precedent order, if we maybelieve those men whose profession givesthem cause to enquire most, it may bedoubted there was in it the fraud of someold patentees and monopolisers in the trade ofbookselling, who, under the pretence of thepoor in their company, not to be defrauded,and the just retaining of each man hisseveral copy, which God forbid should begainsaid, brought divers glosing colours tothe House, which were indeed but colours,and serving no end except it be to exercisea superiority over their neighbours, men who


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68 UOPYBIGHT IN BOOKS.do not therefore labour in an honest pro-fession to which learning is indebted thatthey should be made other men's vassals,

The sublime MUton is not always a modelof lucidity, and I propose to postpone aconsideration of these oracular utterances ofhis until we have made a short study of thatStationers' Company with its copies and*' registers, which obviously is a leading, ifnot the dominant, factor in the whole case forand against copyright at common law.

To conclude this lecture, it is only neces-sary to remind you that the Licensing Actof Charles II. expired in 1679, and thenext statute relating to books and print-ing was the unfortunately conceived andunhappily expressed statute of Queen Anne,which, however, has the honour of being thefirst copyright statute at law to be foundin the Corpus Juris of any State, either ofancient or modern times.


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III.THE STATIONERS' COMPANY ANDTHE FIRST COPYRIGHT STATUTE.The Stationers' Company was established bycharter in 1556. Its history has been com-piled, and its register books transcribed andprinted, in five handsome volumes by theloving and almost exuberant zeal of Mr.Edward Arber (18751894). There you mayread at large and at your leisure of themanners and customs of the old printers ofLondon, their courts and apprentices, theirwine and wassail. It would be affectationto pretend that the masters and keepers orwardens and commonalty of the mystery orart of stationers were men of profoundlearning or passion for letters, or that theypursued their trade otherwise than as trades-men. The leading London booksellers con-trolled the Company, and what manner ofmen they were during the 17th and 18th


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72 OOPYBIOHT IN BOOKS.centuries we know very well. The Dodsleysand the Tonsons, the Lintotts and theCoopers, Roberts, Beckett, Miller, Osborne,we stiU read their names in our earlyeditions of Prior, and Swift, and Gray, andColhns, and Sterne, or see them all clubbedtogether on the title-pages of those tradeeditions of great authors with which we arepleasantly familiar. The bulk of them wereworthy men, and if we may believe thegarrulous John Dunton, who spent his lifeamong them exchanging copies, theywere honest topers and faithful sons of theChurch of England. Cormorants and scampsthere were among them, men like JackLee ^ and Edward Curll, but taking them onewith another, they were decent fellows

1 Mr. Lee in Lombard Street. Such a Pirate, such aCormorant was never before. Copies, Books, Men, Shops, allwas one. He held no propriety, right or wrong, good or bad,till at last he began to be known, and the Booksellers notenduring so ill a man among them to disgrace them, shewedhim out, and off he marched to Ireland, where he acted asfelonious-Lee as lie did in London. And as he had lived aThief so he died a Hypocrite, for being asked on his death-bedif he would forgive Mr. C. (that had formerly wronged him),' Yes,' said Lee, ' if I die I forgive him, but if I happento live I am resolved to be avenged on him.' Dnnton's Lifeand Errors, vol. i., p. 214.


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TSE FIRST GOPTRIGHT STATUTE. 73and tradesmen in every bone of their bodies.These were the men who looked after theStationers' Company, which grew rich andprosperous enough.

From the very first two things are plainabout the Stationers' Company.

First, they kept register books whereinby decree of the Star Chamber, by ordersof Parliament, and finally by Act of Parlia-ment all new publications and reprints hadto be entered at the date of publicationandSecondly, such entries were, by usage ofthe Company, exclusively made in the nameor names of members of the Company.

Thirdly, by virtue of such entry, thebookseller, in whose name the entry wasmade became (in the opinion of the Stationers'Company) the owner, or proprietor, of suchbook or copy (as they called it), and oughtto have the sole printing thereof, presumablyfor ever.

Here we get the foundation of booksellers'copyright. What was the position of theauthor ? His copy was not the printedbook entered (as by law ordained) in the


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74 COPYBIGET IN BOOKS.register books of the Stationers' Companyfor unless he were a bookseller and a memberof the Company, as well as an author, theentry could not be made in his name, butmust be made in his publisher's name, whothereupon became the proprietor of theprinted book. No, the author's copy is themanuscript, and the only way open to himfor dealing with that was to sell it out andout as John Milton did Paradise Lost toSymonds in 1667, or to persuade the Crownto give him a grant of letters patent for aterm of years as the poet Wither succeededin obtaining for his Divine Psalms, ofwhich more anon.

As printing presses were licensed andin the hands of a Guild, it was impossiblefor an author to print his own books asHorace Walpole and Sir Egerton Brydgeswere able to do at a later date, and asletters patent were not easily obtained, theordinary book producer could _QiLlyL_go capin hand to some member of the Stationers'Company and make the best terms he could.The author's copyright had therefore inpractice no independent existence, all he


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THE FIRST GOPYBIGHT STATLTE. 75could do was to put a member of theCompany in the T^^ay of obtaining thatbookseller's copyright which was foundedon the ancient usages of the Stationers'Company.

The Company's property may be classifiedunder three heads.

First. Its property as a trading corpora-tion. Under this head must be includedthose State publications, which from timeto time were assigned to it by the Crown,sometimes in derogation of former grantsand sometimes on the cesser of the grantsto the king's printer.

The Company usually stood well withauthority, and occasionally alleged an ex-clusive right to print which it did not alwayspossess. For example, over the psalmody ofthe Church of England they exercised con-trol by their repeated assertions that noversion of the Psalms of David could beused in church except that of Sternhold andHopkins, which belonged to them, whereasit is doubtful whether Sternhold and Hopkinswere ever lawfully authorised. At all events,Luke Milboume, who had the assurance in


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76 COPYBIGHT IN BOOKS.1698 to publish a version of the Psalms (avery bad one) of his own, observes : Norcould I ever find any authentic allowance forsinging them (i.e. Stemholdand Hopkins) inpublic, whatsoever the Company of Stationerspretend to, whose plausible title had a regardto their own profit more than the Church'sedification.

Second. The property held by the Com-pany for the benefit of poor members, theirwidows and children. This charitableproperty appears to go back so far as 1583,when several printers and members of theCompany surrendered certain copies to theuse of the poor of the Company.

Third. The property of individual mem-bers of the Company acquired by entry oftheir copies in the register.

Let me give two extracts from thisregister :

3rd September 1604Master Wateeson Entered for his copies certain copies

which were Master Ponsonbie's.(i.) The Arcadia oif Sir Philip

Sidney,(ii.) The ffayrie quene, both

parts by Spencer.


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78 COPYRIOET IN BOOKS.long as the Press was a licensed Press, andthe master and wardens of the Companyauthorised to sedrch for and destroy un-licensed presses,Vand so long as the numberof master printers was severely limited, theleading booksellers had the trade in theirown hands, but when anybody was free toset up a printing press and make his ownterms with authors, the existing monopolywas threatened, and the only way of savingit was Jirst to secure that no member of theStationers' Company should transgress itsancient usage and make free with anothermember's copy, and secondly, to maintain thepractice of requiring that all new books andreprints should be registered as before, andin the name or names of members of theCompany.

The first of these ends the booksellerssought to accomplish by two bye*laws of theCompany, made respectively in 1681 and1694 at assemblies of the Company held atthe Common Hall.

At an Assembly of the masters and keepers, orwardens and commonalty of the mystery or art ofstationers of the City of London, held at their Common


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THE FIRST COPYRIGHT STATUTE. 79Hall in the parish of St. Martin, Ludgate, in the Wardof Parringdon Within, London, on Wednesday the 17thday of August, anno domini 1681, for the well-governingthe members of this company. The several laws andordinancies hereafter mentioned were then made, enactedand ordained by the master and keepers or wardensand commonalty of the mystery or art of stationersof the City of London, in manner and form following,viz.

And whereas several members of this companyhave great part of their estates in copies, and byancient usage of this company when any book orcopy is duly entered in the register-book of thiscompany to any member or members of this com-pany, such person to whom such entry is made isand always hath been reputed and taken to beProprietor of such book or copy, and ought tohave the sole printing thereof, which privilege andinterest is now of late often violated and abused.

It is therefore ordained that where any entry orentries is or are or hereafter shall be duly madeof any book or copy in the said register-book ofthis company, by or for any member or members ofthis company that in such case if any member

' or members of . this company shall then after with-out the licence or consent of such member or membersof this company for whom such entry is duly madein the register-book of this company or his or theirassignee or assigns print or cause to be printed,import or cause to be imported from beyond the seasor elsewhere any such copy or copies book or booksor any part of any such copy or copies book orbooks, or shall sell, bind, stitch, or expose the same


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80 GOPYniOET IN BOOKS.or any part or parts thereof to sale, that then suchmember or members so offending shall forfeit to themaster and keepers or wardens and commonalty ofthe mystery or art of stationers of the City ofLondon, the sum of twelve pence for every suchcopy or copies book or books, or any part of suchcopy or copies book or books, imprinted, imported,sold, bound, sticht and exposed to sale contraryhereto.

And again in 1694, At an assembly of the masters and keepers or

wardJens and commonalty of the mystery or art ofstationers of the City of London, held at their CommonHall in the parish of St. Martin, Ludgate, in the wardof Farringdon Within, London, on Monday the 14thday of May, Anno Domini 1694, the several laws,ordinances and oath hereafter following were then bythem made, enacted and ordained for the well-governingof the members of the corporation of them the saidmaster and keepers or wardens and commonalty of themystery or art of stationers of the City of London, viz.

Whereas divers members of this company havegreat part of their estates in copies, duly enteredin the register-book of this company, which by theancient usage of this company is are or alwayshath and have been used, reputed and taken to bethe right and property of such person and persons(members of this company) for whom or whosebenefit such copy and copies are so duly entered inthe register-book of this company, and constantly


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THE FIRST GOPYBIGHT STATUTE. 81bargained and sold amongst the members of thiscompany as their property, and devised to childrenand others for legacies and to their widows for theirmaintenance, and that he and they to whom suchcopy and copies are so duly entered, purchased ordevised ought to have the sole printing thereof.

Wherefore for the better preservation of thesaid ancient usage from being invaded by evil-minded men, and to prevent the abuse of trade byviolating the same, it is ordained that after anyentry or entries is or are or shall be duly made ofany copy or copies, book or books in the register-book of this company by or from any member ormembers of this company, if any other member ormembers of this company shall, without the licenceor consent of such member or members of thiscompany for or by whom such entry is duly made,or of his assignee or assigns, print or cause to beprinted, import or cause to be imported from beyondthe seas or elsewhere, any such copy or copies bookor books or part of any such copy or copies bookor books whereof such due entry hath been madein the register-book of this company to or for suchother member of this company, or shall sell bind,stitch or expose the same or any part or partsthereof to sale without such licence, that then suchmember and members so offending shall forfeit andpay to the master and keepers or wardens and com-monalty of the mystery or art of Stationers of theCity of London the sum of twelvepence for everysuch several copy or copies book or books imprinted,imported, sold, bound, stitcht or exposed to salewithout such licence or consent as aforesaid.


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82 COPYBIQET IN BOOKS.I have set out these bye-laws at

length, familiar though they are to 'all whoare well read in the legal history of copyrightin England, because they speak for them-selves and need no comment. To relyupon them as declaratory of legal rightswould indeed be absurd. It would beharsh to describe them as honom- amongthieves, for in many cases the author'scopy (that is, the manuscript) had been ac-quired for a fair consideration, and as theauthor, poor fellow, could do nothing onhis own account in order to acquire pro-tection for his manuscript, obviously thebest way of befriending him was to pro-tect his article as soon as he had soldit to a respectable member of a greatCity company.

Before leaving the Worshipful Companyof Stationers, I feel bound, in order thatyou may the better appreciate the place itoccupied in the seventeenth century, torevive for a few moments an old quarrel,and ask you

To weep afresh a long since cancelled woe.


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THE FIB8T GOPYBIGHT STATUTE. 83On the 29th of October, 1603, King

James I. granted to the Stationers' Companythe old patent, once John Day's, for Psaltersand Psalmes in Metre or Pro.se, with MusycallNotes or without Notes. In 1623, the samemonarch, being minded, one may charitablysuppose, to make some recomperise to theunfortunate poet, George Wither, whom hehad cast into prison and despitefuUy usedfor writing a poem, not only granted Wither,for the long period of fifty-one years, themonopoly or copyright of that bard's Hymnsand Songs of the Church, but ordained anddecreed that these same Hymns and Songsshould henceforth, during the period of fifty-one years, be bound up and sold withall English Psalm Books, and that Wither,his executors and assigns, should be entitledfor as much per sheet of the Hymns andSongs as the Stationers' Company receivedfor their Psalms. The Company were furious,and one cannot wonder, at having an ex-traneous volume thrust bodily into theireditions of the Psalms--in , Metre, and beingobliged to open an account with a despisedand impecunious poet. The Company fell to


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84 COPYRIGHT IN BOOKS.abusing Wither, since they dared not abusethe king, nor did Wither fail to maintainhis reputation for quarrelsomeness. In the SchoUer's Purgatory of Wither, a tractwritten in excellent prose, are to be foundtwo character-sketches, one of The HonestStationer, the other of the Dishonest orMere Stationer which smack so of the times,and present so lively a picture of the situa-tion I have been attempting feebly to describe,that I offer no apology for readiag to youlengthy extracts from them.

An Honest Stationeb. An honest stationer is he that exercizeth his mys-

tery (whether it be in printing bynding or selling ofBookes) with more respect to the glory of God and thepublike advantage then to his owne commodity; andis both an ornament and a profitable member of a civillCommonwealth. He is the caterer that gathers togetherprovision to satisfy the curious appetite of the soule,and is carefull to his powre that whatsoever he pro-vides shalbe such as may not poyson or distemper thevnderstanding. And, seeing the State intrusteth himwith disposing of those Bookes which may both profitand hurt as they are applyed (like a discreet Apothe-cary in selling poysnous druggs), he observes by whomand to what purpose such bookes are likely to bebought vp before he will deliver them out of his hands.


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THE FIRST COPYRIGHT STATUTE. 85If be be a printer he makes conscience to exemplefyhis Ooppie {i.e. to compose his book) fayrely and truly.If he be a Booke-bynder he is careful his worke maybee strong and serviceable. If he be a seller of Bookes,he is no meere Bookeseller (that is) one who sellethmeerely ynck and paper bundled up together for his owneadvantage only; but he is the Chapman of Arts, ofwisdom and of much experience for a little money. Hewould not publish a book tending to schisme or pro-phannesse for the greatest gain ; and if you see in hisshopp any bookes vaine or impertinent, it is not somuch to be imputed his fault as to the vanity of theTymes. For when bookes come forth allowed by autho-rity, he holds it his duty rather to sell them then tocensure them. Yet he meddles as little as he can withsuch as he is truly persuaded are pernicious or altogethervnprofitable.

The reputation of SchoUers is as deare vnto him ashis owne. For he acknowledgeth that from them hismystery had both beginning and meanes of continuance.He heartely loves & seekes the prosperity of his owneCorporation. Yet he would not iniure the Vniuersityesto aduantage it, nor be soe sawcie as to make com-parisons betweene them. He loves a good Authoras his Brother and wilbe ready to yeeld him the dueportion of his labours without wrangling. When hecomes to be Maister or Warden of his Company helabors truly to rectify what is amisse, but fyndes somany peruerssones & so few of his good mind thathis yeare is out before he can bring any remedy topasse. He greeues for those Abuses which have beneoffred to me and other Authors but fynding that byspeaking on our behalfes he is likely to bring himselfe


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86 COPTBIOHT IN BOOKS.into an inconuenience without profitt to vs lie prayesin silence for amendment and that God would not lay-to the charge of the whole Corporation that which butsome among them are guilty of. He feares none ofthose reproofes which are to be found in this booke.For he knows himselfe cleare and is resolued to makesale of it as it comes forth with allowance from Autho-rity. In a word he is such a man that the Stateought to cherish him,' SchoUers to loue him ; goodcustomers to frequent his shopp, and the whole Companyof Stationers to pray for. him : For it is for the sakeof such as he that they haue subsisted & prosperedthus long. And thus you haue the true description ofsuch a Stationer as I exempt from my reprofes : nowfollowes the character of him at whose reformation Ihaue aymed.

A Meee Stationer. A Mere Stationer is he that imagines he was borne

altogether for himselfe and exercizeth his Mystery withoutany respect to the glory of God or the publike aduantage.For which cause he is one of the most pemitjous super-fluities in a Christian gouernment & may be well termedthe Deuills seed[s]man ; seeing he is the aptest Instru-ment to sowe schismes heresies scandalls & seditionsthrough the world. What booke soever he may ha

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Birrell Seven Lectures on Law and History of Copyright 1899