A Few Words About Copyright In Books

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Title:     A Few Words About Copyright In Books
Author: Augustine Birrell [More Titles by Birrell]

Copyright, which is the exclusive liberty reserved to an author and his assigns of printing or otherwise multiplying copies of his book during certain fixed periods of time, is a right of modern origin.

There is nothing about copyright in Justinian's compilations.

It is a mistake to suppose that books did not circulate freely in the era of manuscripts. St. Augustine was one of the most popular authors that ever lived. His City of God ran over Europe after a fashion impossible to-day. Thousands of busy hands were employed, year out and year in, making copies for sale of this famous treatise. Yet Augustine had never heard of copyright, and never received a royalty on sales in his life.

The word 'copyright' is of purely English origin, and came into existence as follows:

The Stationers' Company was founded by royal charter in 1556, and from the beginning has kept register-books, wherein, first, by decrees of the Star Chamber, afterwards by orders of the Houses of Parliament, and finally by Act of Parliament, the titles of all publications and reprints have had to be entered prior to publication.

None but booksellers, as publishers were then content to be called, were members of the Stationers' Company, and by the usage of the Company no entries could be made in their register-books except in the names of members, and thereupon the book referred to in the entry became the 'copy' of the member or members who had caused it to be registered.

By virtue of this registration the book became, in the opinion of the Stationers' Company, the property in perpetuity of the member or members who had effected the registration. This was the 'right' of the stationer to his 'copy.'

Copyright at first is therefore not an author's, but a bookseller's copyright. The author had no part or lot in it unless he chanced to be both an author and a bookseller, an unusual combination in early days. The author took his manuscript to a member of the Stationers' Company, and made the best bargain he could for himself. The stationer, if terms were arrived at, carried off the manuscript to his Company and registered the title in the books, and thereupon became, in his opinion, and in that of his Company, the owner, at common law, in perpetuity of his 'copy.'

The stationers, having complete control over their register-books, made what entries they chose, and all kinds of books, even Homer and the Classics, became the 'property' of its members. The booksellers, nearly all Londoners, respected each other's 'copies,' and jealously guarded access to their registers. From time to time there were sales by auction of a bookseller's 'copies,' but the public--that is, the country booksellers, for there were no other likely buyers--were excluded from the sale-room. A great monopoly was thus created and maintained by the trade. There was never any examination of title to a bookseller's copy. Every book of repute was supposed to have a bookseller for its owner. Bunyan's Pilgrim's Progress was Mr. Ponder's copy, Milton's Paradise Lost Mr. Tonson's copy, The Whole Duty of Man Mr. Eyre's copy, and so on. The thing was a corrupt and illegal trade combination.

The expiration of the Licensing Act, and the consequent cessation of the penalties it inflicted upon unlicensed printing, exposed the proprietors of 'copies' to an invasion of their rights, real or supposed, and in 1703, and again in 1706 and 1709, they applied to Parliament for a Bill to protect them against the 'ruin' with which they alleged themselves to be threatened.[A]

[Footnote A: What the booksellers wanted was not to be left to their common law remedy--i.e., an action of trespass on the case--but to be supplied with penalties for infringement, and especially with the right to seize and burn unauthorized editions.]

In 1710 they got what they asked for in the shape of the famous Statute of Queen Anne, the first copyright law in the world. A truly English measure, ill considered and ill drawn, which did the very last thing it was meant to do--viz., destroy the property it was intended to protect.

By this Act, in which the 'author' first makes his appearance actually in front of the 'proprietor,' it was provided that, in case of new books, the author and his assigns should have the sole right of printing them for fourteen years, and if at the end of that time the author was still alive, a second term of fourteen years was conceded. In the case of existing books, there was to be but one term--viz., twenty-one years, from August 10, 1710.

Registration at the Stationers' Company was still required, but nothing was said as to who might make the entries, or into whose names they were to be made.

Then followed the desired penalties for infringement. The booksellers thought the terms of years meant no more than that the penalties were to be limited by way of experiment to those periods.

Many years flew by before the Stationers' Company discovered the mischief wrought by the statute they had themselves promoted. To cut a long matter short, it was not until 1774 that the House of Lords decided that, whether there ever had been a perpetuity in literary property at common law or not, it was destroyed by the Act of Queen Anne, and that from and after the passing of that law neither author, assignee, nor proprietor of 'copy' had any exclusive right of multiplication, save for and during the periods of time the statute created.

It was a splendid fight--a Thirty Years' War. Great lawyers were fee'd in it; luminous and lengthy judgments were delivered. Mansfield was a booksellers' man; Thurlow ridiculed the pretensions of the Trade. It can be read about in Boswell's Johnson and in Campbell's Lives of the Lord Chancellors. The authors stood supinely by, not contributing a farthing towards the expenses. It was a booksellers' battle, and the booksellers were beaten, as they deserved to be.

All this is past history, in which the modern money-loving, motoring author takes scant pleasure. Things are on a different footing now. The Act of 1842 has extended the statutory periods of protection. The perpetuity craze is over. A right in perpetuity to reprint Frank Fustian's novel or Tom Tatter's poem would not add a penny to the present value of the copyright of either of those productions. In business short views must prevail. An author cannot expect to raise money on his hope of immortality. Milton's publisher, good Mr. Symonds, probably thought, if he thought about it at all, that he was buying Paradise Lost for ever when he registered it as his 'copy' in the books of his Company; but into the calculations he made to discover how much he could afford to give the author posterity did not and could not enter. How was Symonds to know that Milton's fame was to outlive Cleveland's or Flatman's?

How many of the books published in 1905 would have any copyright cash value in A.D. 2000? I do not pause for a reply.

The modern author need have no quarrel with the statutory periods fixed by the Act of 1842,[A] though common-sense has long since suggested that a single term, the author's life and thirty or forty years after, should be substituted for the alternative periods named in the Act.

[Footnote A: Author's life plus seven years, or forty-two years from date of publication, whichever term is the longer. The great objection to the second term is that an author's books go out of copyright at different dates, and the earlier editions go out first.]

What the modern author alone desiderates is a big, immediate, and protected market.

The United States of America have been a great disappointment to many an honest British author. In the wicked old days when the States took British books without paying for them they used to take them in large numbers, but now that they have turned honest and passed a law allowing the British author copyright on certain terms, they have in great measure ceased to take; for, by the strangest of coincidences, no sooner were British novels, histories, essays, and the like, protected in America, than there sprang up in the States themselves, novelists, historians, and essayists, not only numerous enough to supply their own home markets, but talented enough to cross the Atlantic in large numbers and challenge us in our own. Such a reward for honesty was not contemplated.

International copyright and the Convention of Berne are things to be proud of and rejoice over. As the first chapter in a Code of Public European Law, they may mark the beginning of a time of settled peace, order, and disarmament, but they have not yet enriched a single author, though hereafter possibly an occasional novelist or play-wright may prosper greatly under their provisions.

The copyright question is now at last really a settled question, save in a single aspect of it. What, if anything, should be done in the case of those authors, few in number, whose literary lives prove longer than the period of statutory protection? Should any distinction in law be struck between a Tennyson and a Tupper? between--But why multiply examples? There is no need to be unnecessarily offensive.

The law and practice of to-day give the meat that remains on the bones of the dead author after the expiration of the statutory period of protection to the Trade. Any publisher who likes to bring out an edition can do so, though by doing so he does not gain any exclusive rights. A brother publisher may compete with him. As a result the public is usually well served with cheap editions of those non-copyright authors whose works are worth reprinting the moment the copyright expires.

Some lovers of justice, however, think that it is unnecessary all at once to endow the Trade with these windfalls, and that if an author's family, or his or their assignees, were prepared to publish cheap editions immediately after the expiration of the usual period of protection, they ought to be allowed to do so for a further period of, say, forty years. If they failed within a reasonable time either to do so themselves or to arrange for others to do so, this extended period should lapse.

Were this to be the law nobody could say that it was unfair; but it is never likely to be the law. It would take time for discussion, and now there is no time left in which to discuss anything in Parliament. A much-needed Copyright Bill has been in draft for years, has been mentioned in Queen's and King's speeches, but it has never been read even a first time. If it ever is read a first time, its only chance of becoming law will be if it is taken in a lump, as it stands, without consideration or amendment. To such a pass has legislation been reduced in this country!

This draft Bill does not contain any provision for specially protecting the families of authors whose works long outlive their mortal lives. It makes no invidious distinctions. It leaves all the authors to hang together, the quick and the dead. Perhaps this is the better way.

[The end]
Augustine Birrell's essay: Few Words About Copyright In Books

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