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"This is the very coinage of your brain."—Hamlet.
DR. SAMUEL JOHNSON defines this word as "property of an author in a literary work;" other lexicographers give it the same definition, with the words added, "for a limited term of years; " and Worcester says it is "a right given by law," as though he questioned the wisdom of the law. Dr. Johnson, elsewhere descanting on the subject of literary property, qualifies the above definition. He says
"There seems to be in authors a stronger right of property than that by occupancy: a metaphysical right, a right as it were of creation, which should from its nature be perpetual; but the consent of nations is against it; for were it to be perpetual, no book, however useful, could be universally diffused amongst mankind, should the proprietor take it into his head to restrain its circulation. No book could have the advantage of being edited with notes, however necessary to its elucidation, should the proprietor perversely oppose it. For the general good of the world, therefore, whatever valuable book has once been created by an author, and issued out by him, should be understood as no longer in his power, but as belonging to the public; at the same time the author is entitled to an adequate reward. This he should have by an exclusive right to his work for a considerable number of years." -Boswell's Life of Johnson.
This view of copyright, by an author of no mean repute, coupled with a liberal concession to "the general good of the world," seems to be the one taken of copyright by all countries which have yet afforded it protection. It is a view, however, which has always found powerful opponents: on the one hand, by those who maintain that copyright should be perpetual; and on the other hand, by those who from the days of Lord Camden, a hundred years ago, down to Sir T. H. Farrer, Sir Louis Mallet, and others of the present day, maintain that no property can exist in uttered thought.
The first great copyright trial was that of Millar v. Taylor,
which involved the proprietorship of the assigns of the poet Thomson in his own poems. The next case was that of Donaldson v. Becket,† and it was in this discussion that Lord Camden delivered his famous argument against copyright.
"If there be anything in the world," says Lord Camden, common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air and Those great men, those favoured mortals, those sublime spirits who share that ray of divinity which we call genius, are entrusted by Providence with the delegated power of imparting to their fellow-creatures that instruction which Heaven meant for universal benefit; they must not be niggard to the world, or hoard up for themselves the common stock. .. Knowledge to be enjoyed must be communicated. Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions: fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller
I pause at this climax, as it comes specially home to a publisher, to say that, brilliant as is Lord Camden's invective, his facts are not unimpeachable. In the days when copyright had no other protection than that of Common Law, Milton did "condescend to traffic" with a bookseller, whether "dirty" or not. He did not sell the copyright of 'Paradise Lost' for £5 as is commonly supposed. On the contrary, he retained his copyright in his own hands, selling to Simmons (or Symons, a printer of Aldersgate Street,) the right to print 1300 copies; £5 to be paid down immediately, and another £5 when that number was sold. These 1300 of the first 4to edition were issued in nine different impressions (varying in small particulars) between 1667 and 1669. He had a like sum for the second edition, which was in 8vo, and which was not called for till 1674 (seven years after the first was printed), and he did
* The copyright by the statute had expired. The issue raised was, whether a right of property therein was still given by the Common Law. Lord Mansfield decided in favour of the plaintiff, thus confirming this right.
In this case Lord Mansfield's decision was reversed, and it was affirmed that Common Law Copyright was taken away by the statute of Anne.
not live to receive his third "miserable pittance." The third edition was published in 1678.* Milton died on the 8th of November, 1679, and his widow agreed with Simmons to receive £8 for her right, for which she gave him a general release on the 29th of April, 1681. The "miserable pittance" which Milton received for this great work has generally been regarded as a reproach to his publisher, and has been repeatedly quoted as such in the recent somewhat heated discussions raised by "The Society of Authors" on the subject of “ Authors and Publishers;" it should rather be regarded as a reproach to the undiscriminating public of that age which could only purchase three small editions in fourteen years. As a proof that Şimmons did not attach any great value to his acquisition, he seems to have eventually sold his right for £25 to Brabazon Aylmer, from whom Jacob Tonson purchased a half-interest, and issued the folio edition of 1688 with a portrait.
At all events, it would seem from the facts stated that Milton was, as Mr. Curtis says (in his work on Copyright), "careful to assert his full right of property, as he and others understood it at that time, and to make it available to his family. . . . As such rights were estimated then, and considering that the poem gained slowly upon the attention of his own age, the price he received was not grossly inadequate."
Dr. Johnson says that "the nation was satisfied with two editions of Shakespeare's Plays from 1623 to 1664 which probably could not amount to 1000 copies."
"Il divino Tiziano" did not paint his altar-pieces, nor the divine Raphael his Madonnas, for the simple love of fame—they got as much money as they could; nor did the heavenly-gifted Mozart ever give his sonatas to his music publishers without "consideration." Yet he died in poverty. Among "scribblers for bread" have been numbered the greatest names in literature. These Lord Camden and his followers would scorn ; but when success has crowned the efforts of a Tennyson or a Turner, then fame is to be his only reward! Poor poet! poor painter !
* As a literary curiosity I have given (Appendix V.) a copy of the original agreement between John Milton, Gent., and Samuel Symons, Printer, which substantially confirms the above statement.
Addison's opinion on infringers of the rights of authors will be found in these words :
"A set of wretches we authors call pirates who print any book, poem, or sermon as soon as it appears in the world in a smaller volume, and sell it, as all other thieves do stolen goods, at a cheaper rate."-Tatler.
COPYRIGHT under the common law seems in those days to have been regarded as perpetual, for Milton's great Epic was protected by injunction by Lord Hardwicke in 1739, in favour of the right which Tonson had acquired in 1683, and seventytwo years after the first assignment by Milton.*
In all I have to say on the subject I shall assume that copyright is PROPERTY, if not in perpetuity, at least in the limited sense which Johnson has conceded, and which the Statute Law has adopted; for I cannot conceive it to be necessary to dive into the question of the origin of property, as Sir Louis Mallet does, in order to prove that copyright "rests upon a radical economic fallacy, viz. a misconception of the nature of the law of value;" nor will I pretend to contest the assertion of Sir T. H. Farrer, that "words, thoughts and actions, when uttered or done, pass as a general rule into the common domain, and it is thus that human life is carried on." It has generally been conceded that however much ideas may be common property, the man who by his genius (a "ray of divinity," as Lord Camden calls it,) and by the sweat of his brains, reduces ideas to words and words to printed books, is as much entitled to call the result of his work his property as the man who by browsweat, or by no sweating at all, becomes the unquestioned owner of lands or merchandise. If governments and legislatures are at this stage of the world's existence prepared to reconsider the question of property in its foundation, then the very able essay which Sir Louis Mallet has appended to the Commissioners' Report must be regarded as a valuable contribution-and copyright, the last form of property which
The booksellers of the middle of the last century gave large sums for copyright, because it was then considered a perpetuity, and it was in this sense the jury found in the case of Millar v. Taylor.
governments have recognised, should properly be the first to be attacked and removed; but apparently Sir T. H. Farrer and Sir Louis Mallet are willing for the present to waive their very abstract, not to say abstruse, views in favour of the majority who do recognise copyright as property; they still however propound certain modifications which I propose to consider from a publisher's point of view further on.
COPYRIGHT AS PROPERTY.
There seems to be this difference between copyright and all other kinds of property, that in all.countries where copyright has been recognised as property, it has been specially protected by statute and limited to a certain term of years. In Great Britain, a term of forty-two years from publication, or, the life of the author and seven years from his death-whichever term may be the longer. In France, copyright is guaranteed to an author for his life, and (subject to a variety of special regulations) for fifty years after his decease. In Germany, copyright continues for the author's life, and for thirty years after his death. In Austria and Hungary, the term is the same. In Holland, for the life of the author and twenty years after. In Norway, for the life of the author and fifty years after his death. In Denmark, for the author's life and fifty years. In Sweden, for life and fifty years. In Spain, for life of author or translator or "other persons to whom it may pass by donation inter vivos"-then for eighty years. In Russia, for life and fifty years, and for ten years more if an edition is published within five years of the end of the first term. In Greece, copyright is for fifteen years from publication. In Italy, for life and forty years, with a second term of forty years, during which anyone can publish the work upon paying a royalty to the author or his assigns. In Portugal, for life and thirty years after author's death. In Switzerland, life of the author, or to his heirs for thirty years from date of publication. Heirs have the right for ten years to publish a posthumous work of the author, which, if they avail themselves of, they are protected for thirty years from death of author. In Turkey, to the