Diary in America, Series Two

“In Senate of the United States, Feb. 16, 1837.

“Mr Clay made the following report:—

“The select committee to whom was referred the address of certain British and the petition of certain American authors, have, according to order, had the same under consideration, and beg leave now to report:—

“That, by the act of Congress of 1831, being the law now in force regulating copyrights, the benefits of the act are restricted to citizens or residents of the United States; so that no foreigner, residing abroad, can secure a copyright in the United States for any work of which he is the author, however important or valuable it may be. The object of the address and petition, therefore, is to remove this restriction as to British authors, and to allow them to enjoy the benefits of our law.

“That authors and inventors have, according to the practice among civilised nations, a property in the respective productions of their genius is incontestible; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labours for the means of subsistence; and are frequently, from the nature of their pursuits, or the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law.

“It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situated. A British merchant brings or transmits to the United States a bale of merchandise, and the moment it comes within the jurisdiction of our laws they throw around it effectual security. But if the work of a British author is brought to the United States, it may be appropriated by any resident here, and republished, without any compensation whatever being made to the author. We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of the merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.

“The committee think that this distinction in the condition of the two descriptions of property is not just; and that it ought to be remedied by some safe and cautious amendment of the law. Already the principle has been adopted in the patent laws, of extending their benefits to foreign inventions and improvements. It is but carrying out the same principle to extend the benefit of our copyright laws to foreign authors. In relation to the subject of Great Britain and France, it will be but a measure of reciprocal justice; for, in both of those countries, our authors may enjoy that protection of their laws for literary property which is denied to their subjects here.

“Entertaining these views, the committee have been anxious to devise some measure which, without too great a disturbance of interests or affecting too seriously arrangements which have grown out of the present state of things, may, without hazard, be subjected to the test of practical experience. Of the works which have heretofore issued from the foreign press, many have already been republished in the United States; others are in a progress of republication, and some probably have been stereotyped. A copyright law which should embrace any of these works, might injuriously affect American publishers, and lead to collision and litigation between them and foreign authors.

“Acting, then, on the principles of prudence and caution, by which the committee have thought it best to be governed, the bill which the committee intend proposing provides that the protection which it secures shall extend to those works only which shall be published after its passage. It is also limited to the subjects of Great Britain and France; among other reasons, because the committee have information that, by their laws, American authors can obtain there protection for their productions; but they have no information that such is the case in any other foreign country. But, in principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it. The bill also provides that an American edition of the foreign work for which an American copyright has been obtained, shall be published within reasonable time.

“If the bill should pass, its operation in this country would be to leave the public, without any charge for copyright, in the undisturbed possession of all scientific and literary works published prior to its passage—in other words, the great mass of the science and literature of the world; and to entitle the British or French author only to the benefit of every copyright in respect to works which may be published subsequent to the passage of the law.

“The committee cannot anticipate any reasonable or just objection to a measure thus guarded and restricted. It may, indeed, be contended, and it is possible that a new work, when charged with the expense incident to the copyright, may come into the hands of the purchaser at a small advance beyond what would be its price, if there were no such charge; but this is by no means certain. It is, on the contrary, highly probable that, when the American publisher has adequate time to issue carefully an edition of the foreign work, without incurring the extraordinary expense which he now has to sustain to make a hurried publication of it, and to guard himself against dangerous competition, he will be able to bring it into the market as cheaply as if the bill were not to pass. But, if that should not prove to be the case, and if the American reader should have to pay a few cents to compensate the author for composing a work which he is instructed and profited, would it not be just in itself? Has any reader a right to the use, without remuneration, of intellectual productions which have not yet been brought into existence, but lie buried in the mind of genius? The committee think not; and they believe that no American citizen would not feel it quite as unjust, in reference to future publications, to appropriate to himself their use, without any consideration being paid to their foreign proprietors, as he would to take the bale of merchandise, in the case stated, without paying for it; and he would the more readily make this trifling contribution, when it secured to him, instead of the imperfect and slovenly book now often issued, a neat and valuable work, worthy of preservation.

“With respect to the constitutional power to pass the proposed bill, the committee entertain no doubt, and Congress, as before stated, has acted on it. The constitution authorises Congress to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. There is no limitation of the power to natives or residents of this country. Such a limitation would have been hostile to the object of the power granted. That object was to promote the progress of science and useful arts. They belong to no particular country, but to mankind generally. And it cannot be doubted that the stimulus which it was intended to give to mind and genius, in other words, the promotion of the progress of science and the arts, will be increased by the motives which the bill offers to the inhabitants of Great Britain and France.

“The committee conclude by asking leave to introduce the bill which accompanies this report.”

Let it not, however, be supposed that Mr Clay was unreported by the American press; on the contrary, a large portion of it espoused the cause of the English author in the most liberal manner, indeed the boon itself, if granted, would in reality be of more advantage to America than to us; as many of them argued. The New York Daily Express observes, “But another great evil resulting from the present law is, that most of the writers of our own country are utterly precluded from advancing our native literature, since they can derive no emolument or compensation for their labours; and it is idle to urge that the devotees of literature, any more than the ingenious artisan or mechanic, can be indifferent to the ultimate advantages which should result alike to both from the diligent use and studious application of their mental energies. We patronise and read the works of foreign writers, but it is at the expense of our own, the books of the English author being procured free of all cost, supersede those which would otherwise be produced by our own countrymen,—thus the foreigner is wronged, while the same wrong acts again as a tariff upon our American author and all this manifest injury is perpetuated without its being qualified by the most remote advantage to any of the parties concerned.”

The Boston Atlas responded to this observation in almost the same language.

“This systematic, legalised depredation on English authors, is perfectly ruinous to all native literature. What writer can devote himself to a literary work, which he must offer on its completion, in competition with a work of the same description, perhaps, furnishing printed copy to the compositors, and to be had for the expense of a single London copy. What publisher would give its worth for a novel, in manuscript, supposing it to be equal to Bulwer’s best, when he would get a novel of Bulwer himself, for a few shillings—with an English reputation at the back of it? This is the great reason that we have so few works illustrative of our own history—whether of fact or fiction. Our booksellers are supplied for nothing.”

I extract the following from a very excellent article on the subject, in the North American Review.

Another bad consequence of the existing state of things is, that the choice of books, which shall be offered us, is in the wrong hands. Our publishers have, to no small extent, the direction of our reading, inasmuch as they make the selection of books for reprinting. They, of course, will choose those works which will command the readiest and most extensive sale; but it must be remembered, that in so doing, while they answer the demand of the most numerous class of readers, they neglect the wants of the more cultivated and intelligent class. Besides his, there are many admirable works, which might come into general use if they were presented to our reading public, but which are left unnoticed by the publishers, because their success is doubtful. Supposing Abbott’s ‘Young Christian,’ for instance, a book which has had a more extensive circulation than any work of the present times, had been first published in England at the same moment that a good novel appeared, the American publishers would have given us immediately a horrid reprint of the novel; but we should have heard nothing of Abbott’s book, till its success had been abundantly tried abroad; nor even then, if some ephemeral novel had started up which promised to sell better.

“Nor is it certain that the price of books would be seriously augmented by the passage of the copyright law. It must be remembered, that a great number of writers would thus be called into the field at once, English as well as American writers; for, if English authors could enjoy this benefit, they would soon begin to write expressly for America; and the competition would become so great, as to regulate the prices of books to a proper standard. But, even supposing the price to be considerably raised, it would certainly be better to pay two dollars for a handsome volume, which is worth keeping, and worth reading again, than to pay only one dollar for a book, which in five years will be worth no more than the same amount of brown paper. And, finally, there is the consideration of a native literature, which will, we presume, be placed by all reasonable and intelligent persons above that of cheap books.”

Nevertheless, a large portion of the press took up the other side of the question, as may be inferred from a reply which I have inserted in the note beneath.[13 - The International Copyright Question.One of the most important questions, upon principle, that ever was mooted, has for some time placed in juxtaposition the various editors of the corps critical, accordingly as their interests or feelings have been worked upon. Our chief object in these remarks is to hold up to the scorn and derision that it richly merits the assumption of an editor, that an author has no right to the emanations of his own mind—to the productions of his own pen. We do not mean to answer the many and gross absurdities—which this talented gentleman’s sophistry has palmed upon the public,—it would be a work of supererogation, inasmuch as his ‘airy vision’ has already been completely ‘dissolved’ by the breath of that eminent gentleman, well known to us, who has so completely annihilated the wrong which he is so anxious to continue. But the shameful assumption that a writer, universally allowed to be the worst paid artist in creation, should not have—is not entitled to have, by every principle—of courtesy and honour, a sole and undivided right to, and in, his own productions—is so monstrous, that every editor imbued with those feelings, which through life, should be the rule of his conduct, is in duty bound to come forward and express his dissent from such a doctrine, and his abhorrence of a principle so flagitious.“We avail ourselves of the opportunity this number affords of upholding the poor author’s right, of censuring the greedy spoliation of publishing tribe, who would live, batten, and fatten upon the despoiled labours of those whom their piracy starves—snatching the scanty crust from their needy mouths to pamper their own insatiate maws.“This matter lies between the publisher and the author. The author claims a right to his own productions, wherever they may be. The publishers, like the Cornwall wreckers, say no, the moment your labours touch our fatal shore they are ours; you have no right to them, no title in them. Good heavens! shall such a cruel despoliation be permitted! The publishers, with consummate cunning, turn to the public, and virtually say, support us in our theft, and we will share the spoil with you; we will give you standard works at a price immeasurably below their value. As well might a thief, brought before the honest and worthy recorder say: If your honour will wink at the crime, you will make me a public benefactor, for whilst I rob one man of an hundred watches, I can sell them to an hundred persons for one-third of their prime cost; and thus injure one and benefit a hundred, you shall have one very cheap. What would this recorder say? He would say, the crime is apparent, and I spurn with indignation and contempt your offer to part with to me that which is not your own. And should not this be the reply of the public to the publishers? Yes, and it will be too. And the vampires who have so long lived upon the spirits of authors, will have tax their own to yield themselves support.”]

The bill brought in was lost. Strange to say, the Southerner voted against, on the grounds that they would not give a copyright to Miss Martineau, to propagate her abolition doctrines in that country—forgetting, that as a copyright would increase the price of a work, it would be the means of checking its circulation, rather than of extending it.

When I arrived at Washington, I thought it would be worth while to ascertain the opinion of any of the members of Congress I might meet; and one fine morning, I put the question to one of the Loco foco delegates; when the following conversation took place:—

“Why, Captain, there is much to be said on this subject. Your authors have petitioned our Congress, I perceive. The petition was read last session.”

(Many of the Americans appeared to be highly gratified at the idea of an English petition having been sent to Congress.)

“I believe it was.”

“Well, now, you see, Captain—you will ask us to let you have your copyright in this country, as you allow our authors their copyright in yours; and I suppose you mean to say that if we do not, that our authors shall have no copyright in your country. We’ll allow that, but still I consider you ask too much, as the balance is on our side most considerably. Your authors are very numerous—ours are not. It is very true, that you can steal our copyrights, as well as we can yours. But if you steal ten, we steal a hundred. Don’t you perceive that you ask us to give up the advantage?”

“Oh, certainly,” replied I, “I have nothing more to say on the subject. I’m only glad of one thing.”

“And what may that be, Captain?”

“That I did not sign the petition.”

“No, we observed that your name was not down, which rather surprised us.”

To this cogent argument of the honourable member, I had no reply; and this was the first and last time that I broached the subject when at Washington; but after many conversations with American gentleman on the subject, and examination into the real merits of the case, came to the conclusion, that the English authors never would obtain a copyright in the United States, and as long as the present party are in power.

Their principal argument raised against the copyright, is as follows:—

“It is only by the enlightening and education of the people, that we can expect our institutions to hold together. You ask us to tax ourselves, to check the circulation of cheap literature, so essential to our welfare for the benefit of a few English authors? Are the interests of thirteen millions of people to be sacrificed? the foundation of our government and institutions to be shaken for such trivial advantages as would be derived by a few foreign authors. Your claim has the show of justice we admit, but when the sacrifice to justice must be attended with such serious consequences, must we not adhere to expediency?”

Now, it so happens that the very reverse of this argument has always proved to be the case from the denial of copyright. The enlightening of a people can only be produced by their hearing the truth, which they cannot, and do not, under existing regulations, receive from their own authors, as I have already pointed out; and the effects of their refusal of the copyright to English authors, is, that the American publishers will only send forth such works as are likely to have an immediate sale, such as the novels of the day, which may be said at present to comprise nearly the whole of American rending. Such works as might enlighten the Americans are not so rapidly saleable as to induce an American publisher to risk publishing when there is such competition. What is the consequence that the Americans are amused, but not instructed or enlightened?

According to the present system of publication in America, the grant of copyright would prove to be of advantage only to a few authors—of course, I refer to the most popular. I had free admission to the books of one of the largest publishing houses in the United States, and I extracted from them the profits received by this house for works of a certain reputation. It will be perceived, that the editions published are not large. The profits of the American houses chiefly resulting from the number of works published, each of these yielding a moderate profit, which when collected together, swell into a large sum total.

Now, as there are one hundred cents to a dollar, and the expenses of printing, paper, and advertising have to be deducted, as well as the copies left on hand, it will be evident, that the profit on each of the above works, would be too small to allow the publishers in America to give even 20 pounds for the copyright, the consequence of a copyright would therefore be, that the major portion of the works printed would not be published at all, and better works would be substituted. Of course, such authors as Walter Scott, Byron, Bulwer, etcetera, have a most extensive sale; and the profits are in proportion, but then it must be remembered that a great many booksellers publish editions, and the profits are divided accordingly. Could Sir Walter Scott have obtained a copyright in the United States, it would have bean worth to him by this time at least 100,000 pounds.

The Americans talk so much about their being the most enlightened nation in the world, that it has been generally received to be the case. I have already stated my ideas on this subject, and I think that the small editions usually published, of works not standard or elementary, prove, that with the exception of newspapers, they are not a reading nation. The fact is, they have no time to read; they are all at work; and if they get through their daily newspaper, is quite as much as most of them can effect. Previous to my arrival in the United States, and even for some time afterwards, I had an idea that there was a much larger circulation of every class of writing in America, than there really is. It is only the most popular English authors, as Walter Scott, or the most fashionable, as Byron, which have any extensive circulation; the works which at present the Americans like best, are those of fiction in which there is anything to excite or amuse them, which is very natural, considering how actively they are employed during the major portion of their existence, and the consequent necessity of occasional relaxation. When we consider the extreme cheapness of books in the United States, and the enormous price of them in this country, the facilities of reading them there, and the difficulty attending it here from the above cause, I have no hesitation in saying, that as a reading nation, the United States cannot enter into comparison with us.

As I am upon this subject, I cannot refrain from making a few remarks upon it, as connected with this country. The price of a book now published is enormous, when the prime cost of paper and printing is considered; the actual value of each three volumes of a moderate edition, which are sold at a guinea and a half, being about four shillings and sixpence, and when the edition is large, as the outlay for putting up the type is the same in both, of course it is even less; but the author must be paid, and upon the present small editions he adds considerably to the price charged upon every volume; then comes the expense of advertising, which is very heavy; the profits of the publisher, and the profits of the trade in general; for every book for which the public pay a guinea and a half, is delivered by the publisher to the trade, that is, to the booksellers, at 1 pound 1 shillings 3 pence. The allowance to the trade, therefore, is the heaviest tax of all; but it is impossible for booksellers to keep establishments, clerks, etcetera, without having indemnification. In all the above items, which so swells up the price of the book, there cannot well be any deduction made.

Let us examine into the division of profits. I am only making an approximation, but it is quite near enough for the purpose.

An edition of 1,000 copies at 1 pound 11 shillings 6 pence will give 1,575 pounds.

Positive Expenses to Publisher

Trade allowance of 10 shillings. 3 pence per copy: 512 pounds 10 shillings.

Extra allowance. 25 for 24-40 copies: 63 pounds.

Printing and paper, 4 shillings 6 pence per copy: 225 pounds 0 shillings.

Advertising, equal to 2 shillings per copy: 100 pounds 0 shillings.

Presentations to Universities and Reviewers, say 30 copies: 47 pounds 5 shillings.

The author if he is well known, may be said to receive 7 shillings per copy: 250 pounds 0 shillings.

Leaving for the publisher: 277 pounds 0 shillings.

Total 1,575 pounds 0 shillings.

All the first expenses being positive, it follows that the struggle is between the publisher and the author, as to what division shall be made of the remainder. The publisher points out the risk he incurs, and the author his time and necessities; and when it is considered that many authors take more than a year to write a book, it must be acknowledged that the sum paid to them, as I have put it down, is not too great. The risk, however, is with the publisher, and the great profits with the trade, which is perhaps the reason why booksellers often make fortunes, and publishers as often become bankrupts. Generally speaking, however, the two are combined, the sure gain of the bookseller being as a set off against the speculation of the publisher.