International Copyright

And the aggravating circumstance of all this spoliation of the men and women who are the country's ornament and boast is, that it is wholly our fault. We force the European publishers to steal. England is more that willing, France is more than willing, Germany is quite willing, Sweden, Denmark, and Russia are willing, to come to an arrangement which shall render literary property as sacred and as safe in all civilized lands as tobacco and whiskey. All the countries we have named are now obliged to steal it, and do steal it. Who would have expected to find the Essays of Mr. Emerson a topic in the interior of Russia? We find them, however, familiarly alluded to in the Russian novel "Fathers and Sons," recently translated. If authors had their rights, a rill of Russian silver would come trickling into Concord, while a broad and brimming river of it would inundate a certain cottage in Hartford. How many modest and straitened American homes would have new parlor carpets this year, if henceforth on the first days of January to their address were to be dropped in the mail in every capital of the world which the work done in those homes intructs or cheers! Nor would new carpets be all. Many authors would be instantly delivered from the fatal necessity of over-production,—the vice that threatens literature with annihilation.

There is another aggravating circumstance,—most aggravating. The want of an International Copyright chiefly robs our best and brightest! A dull book protects itself; no foreigner wants it. An honest drudge, who compiles timely works of utility, or works which appease a transient curiosity, and which thousands of "agents" put under the nose of the whole population, can make a fortune by one or two lucky hits. There are respectable gentlemen not far off, who, with pen and scissors, in four months, manufactured pieces of merchandise, labelled "Life of Abraham Lincoln," of which a hundred thousand copies each were sold in half a year, and which yielded the manufacturer thirty thousand dollars. This sum is probably twice as great as the sum total of Mr. Emerson's receipts from his published works,—the fruit of forty years of study and meditation. It is chiefly our dear Immortals and our best Ephemerals who need this protection from their country's justice. It is our Emersons, our Hawthornes, our Longfellows, our Lowells, our Holmeses, our Bryants, our Curtises, our Beechers, our Mrs. Stowes, our Motleys, our Bancrofts, our Prescotts, whom we permit all the world to plunder. We harmless drudges and book-makers are protected by our own dullness. We are panoplied in our insignificance. The stupidest set of school-books we ever looked into has yielded, for many years, an annual profit of one hundred thousand dollars, and is now enriching its third set of proprietors. No one, therefore, need feel any concern for us. We can do pretty well if only we are stupid enough, and "study to please." But, O honorable members, spare the few who redeem and exalt the country's name, and who keep alive the all but extinguished celestial fire! If American property abroad must be robbed, let cotton and tobacco take a turn, and see how they like it. Invite Manchester to come to the Liverpool Docks and help itself. Let there be free smoking in Europe. Summon the merchants of London to a scramble for American bills of exchange. Select for spoliation anything but the country's literature.

The worst remains to be told. It is bad to have your pocket picked; but there is something infinitely worse,—it is to pick a pocket. Who would not rather be stolen from, than steal? Who would not rather be murdered, than be a murderer? Nevertheless, in depriving foreign authors of their rights, it is still ourselves whom we injure most. The great damage to America, and to American literature, from the want of an international copyright law, is not the thousands of dollars per annum which authors lose. This is, in fact, the smallest item that enters into the huge sum total of our loss.

It maims or kills seven tenths of the contemporary literature that must be translated before it is available for publication here. Charles Reade, in that gallant and brilliant little book of his, "The Eighth Commandment," quotes from a letter written in Cologne, in 1851, the following passage:—

"About thirty years ago the first translations from English were brought to the German market. The Waverley Novels were extensively read with avidity by all classes. Next came the Bulwer, and after him Dickens and other writers. Rival editions of the same works sprang up by the half-dozens; the profits decreased, and the publishers were obliged to cut down the pay of the translators. I know that a translation of Grimm pays about 6 pounds for a three-volume novel.

"These works, got up in a hurry, and printed with bad type on wretched paper, are completely flooding the market; and, as they are a serious obstacle to our national literature. Thus much for our share in the miseries of free trade [Upon this expression Mr. Reade justly remarks 'This is a foolish and inapplicable phrase. Free trade is free buying and selling, not free stealing.'] in translations.

"Now for yours. There are able men in Germany, who, were it made worth their while, could and would put the master works of your novelists and historians into a decent German garb. But under the present system these men are elbowed out of the field."

Change a few names in this passage and it describes, with considerable exactness, the state of the translation market in the United States. Works which in France charm the boudoir and amuse the whole of the educated class, sink under the handling of hasty translators and enterprising publishers, into what we call "Yellow-Covered Literature," which is to be found chiefly upon the wharves. Respectable publishers have a well-founded terror of French and German translations; since, after incurring the expense of translation, they have no protection against the publication of another version except "the courtesy of the trade,"—a code of laws which has not much force in the regions from which the literature of the Yellow Covers emanates. We are not getting half the good we ought from the contemporary literature of France, Germany, Sweden, Russia, Holland, Italy, and we never shall, until American publishers can acquire property in it by fair purchase, which the law will protect. The business of furnishing the American public with good translations from the French would of itself maintain two or three great publishing houses. There is a mine of wealth there waiting for the removal of the squatters and the recognition of the rightful title-deeds. What would California have been worth to us, or to itself, or to anybody, if its treasures had been left to the hurried scratching over the surface of uncapitalled prospecters? Capital and skill wait until the title is clear. Then they go in, with their ponderous engines, and pound the rocks till the gold glitters all over the heap.

Messrs. Appleton, of New York, have recently ventured to publish good translations and good editions of Madame Muhlbach's historical novels. The name of this lady being new to America, the enterprise was a risk,—a risk of many thousand dollars,—a risk which only a wealthy house would be justified in assuming. The great expense of such an undertaking is incurred in making the new name known, in advertising it, in shouting it into the ears of a public deafened with a thousand outcries. An enormous sum of money may easily be spent in this way, when advertising costs from twenty cents to two dollars a line. Suppose the efforts of the publishers are successful, see how beautifully the present system works! The more successful they are, the more perilous their property becomes! It is safe only as long as it is worthless. Just as soon as they have, by the expenditure of unknown thousands, created for the works of this German lady a steady demand, which promises to recompense them, they are open to the inroads of the Knights of the Yellow Cover! See, too, the effects upon the Berlin authoress. Playing such a dangerous and costly game as this, the American publisher dare not, cannot treat with her in the only proper and honorable way,—open a fair bargain, so much for so much. Messrs. Appleton did themselves the honor, the other day, to send her a thousand dollars, gold, which was an act as wise as it was right. We enjoyed an exquisite pleasure in looking upon the lovely document, duly stamped and authenticated, which has ere this given her a claim upon a Berlin banker; and we have also a prodigious happiness in committing the impropriety of making the fact public. Nevertheless, it is not thus that authors should be paid for their own. All we can say of it is, that it is better than nothing to her, and the best a publisher can do under the circumstances.

This business of publishing books is the most difficult one carried on in the world. It demands qualities so seldom found in the same individual, that there has scarcely been an eminent and stable publishing house which did not consist of several active and able men. Failure is the rule, success the rare exception. The shores of the business world are strewn thick with the wrecks of ventures in this line that gave every promise of bringing back a large return. It has been proved a task beyond the wisdom of mortals, to decide with any positive degree of certainty whether a heap of blotted manuscript is the most precious or the most worthless of all the productions of human industry. Young publishers think they can tell: old publishers know they cannot. This is so true, that for a publisher to have knowledge of the commodity in which he deals is generally a point against his success as a publisher; and it will certainly ruin him, unless he has remarkably sound judgment, or a good, solid, unlearned partner, whose intuitive sense of what the public wants is unbiased by tastes of his own.

It is this terrible uncertainty as to the value of the commodity purchase, which renders publishing a business so difficult, precarious, and unprofitable; and the higher the character of the literature, the greater the difficulty becomes. Publishers who confine themselves chiefly to works of utility and necessity, or to works professional and sectarian, have an easy task to perform compared with that of a publisher who aims to supply the public with pure science and high literature. If any business can claim favorable consideration from those who have in charge the distribution of the public burdens, surely it is this. If in any way its perils can be justly diminished by law, surely that protection ought not to be withheld. We believe it could be shown that the business of publishing what the trade calls "miscellaneous books," i.e. books which depend solely upon their intrinsic interest or merit, yields a smaller return for the capital and talent invested in it that any other. The Harpers have a grand establishment,—one of the wonders of America. Any one going over that assemblage of enormous edifices, and observing the multitude of men and women employed in them, the vast and far-reaching enterprises going forward,—some of which involve a large expenditure for years before any return is possible,—the great numbers of men of ability, learning, and experience who are superintending the various departments, and the amazing quantities of merchandise produced, the mere catalogue of which is a large volume,—any one, we say, observing these things, would naturally conclude, that the proprietors must be in the receipt of Vanderbiltian incomes. The same amount of capital, force, and talent employed in any other branch of business could not fail to put the incomes of the proprietors high up among those which require six figures for their expression. Compare the returns of these monarchs of the "trade" with those of our dry-goods magnates, and our mighty men in cotton, tobacco, and railroads. A dealer in dry-goods in the city of New York has returned as the income of a single year a sum half as large as the whole capital invested in the establishment of Harpers. If the signal successes of publishing—successes which are the result of the rarest conjunctions of talent, capital, experience, and opportunity—are represented by incomes of twenty and thirty thousand paper dollars a year, what must be the general condition of the trade? But it is the difficulty of conducting the business at all, not the slenderness of its profits, upon which we now desire the reader to reflect. That difficulty, we repeat, arises from the fact that a publisher buys his pig in a poke. He generally knows not, and cannot know, whether what he buys is worth much, little, or nothing.

But there is one branch of his business which does not present this difficulty,—the reprinting of works previously published in a foreign country. He has the advantage of holding in his hand the precise article which he proposes to reproduce,—a printed volume, which he can read with ease and rapidity; and this is nearly as great an advantage as a manager has who sees a play performed before buying it. He has the still greater advantage of a public verdict upon the book. It has been tried upon a public; and it is a rule almost without exception that a book which sells largely in one country will not fail in another. Dickens, Thackeray, Reade, Miss Mulock, Anthony Trollope, George Elliot, Dumas, Hugo, George Sand, have in all foreign countries a popularity which bears a certain proportion to that which they enjoy in their own; and even the Chinese novel published some ten years ago in England was a safe speculation, because it was universally popular in China. The Russian novel before alluded to was a prudent enterprise, because Russia had previously tasted and enjoyed it. Literature of high character is always pervaded with the essence of the nationality which produced it, but it is, for that very reason, the more interesting in other nations. Don Quixote has more Spain in it that all the histories of Spain; but in the library of the German collector of Cervantes, whose death has been recently announced, there were more than twice as many foreign editions as Spanish. According to the Pall Mall Gazette, there were 400 editions in Spanish, 168 in French, 200 in English, 87 in Portuguese, 96 in Italian, 70 in German, 4 in Russian, 4 in Greek, 8 in Polish, 6 in Danish, 13 in Swedish, and 5 in Latin. Poor Cervantes! How eloquently this list pleads for International Copyright!

It is, then, in the republication of foreign works that our publishers ought to find an element of certainty, which cannot appertain to the publication of original and untried productions. But it is precisely here that chaos reigns. In the issue of native works, there is but a single uncertainty; in the republication of foreign, there are many. No man knows what his rights are; nor whether he has any rights; nor whether there are any rights; nor, if he has rights, whether they will be respected. This chaos has taken to itself the pleasant and delusive name of "Courtesy of the Trade." Before the "reign of law" is established in any province of human affairs, we generally see men feeling their way to it, trying to find something else that will answer the purpose, endeavoring to reduce the chaos of conflicting claims to some kind of rule. The publishers of the United States have been doing this for many years, and the result is the unwritten code called the Courtesy of the Trade,—a code defective in itself, with neither judge to expound it, jury to decide upon it, nor sheriff to execute it. This code consisted at first of one rule,—If a publisher issues a foreign work, no other American publisher shall issue it. But it often happened that two or three publishers began or desired to begin the printing of the same book. To meet this and other cases, other laws were added, until at present the code, as laid down by the rigorists, consists of the following rules:—

1. If a publisher issues an edition of a foreign work, he has acquired an exclusive right to it for a period undefined.

2. If a publisher is the first to announce his intention to publish a foreign work, that announcement gives him an exclusive right to publish it.

3. If a publisher has already issued a work of a foreign author, he has acquired thereby an exclusive right to the republication of all subsequent works by the same author.

4. The purchase of advance sheets for publication in a periodical gives a publisher the exclusive right to publish the same in any other form.

5. All and several of these rights may be bought and sold, like any other kind of property.

There is a kind of justice in all these rules. If we could concede that a foreign author has no ownership of the coinage of his brain,—if anything but that author's free gift or purchased consent could convey that property to another,—if foreign literature is the legitimate spoil of America,— then some such a code as this would be the only method of preventing the business from degenerating into a game of unmitigated grab. In its present ill defined and most imperfect state, this system of "courtesy" scarcely mitigates the game at all; and, accordingly, in "the trade" instead of the friendly feeling that would naturally exist among honorable men in the highest branch of business, we find feuds, heart-burnings, and a grievous sense of wrongs unredressed and unredressable. Some houses "announce" everything that is announced on the other side of the Atlantic, so as to have the first choice. Smaller firms, seeing these announcements, dare not undertake any foreign work, even though the great house never decides to publish the book upon which the smaller had fixed its attention. It is only under the reign of law that the rights of the weak have any security. In the most exquisitely organized system of piracy, no man can rely upon the enjoyment of a right which he is not strong enough personally to defend. It is not every house that can crush a rival edition by selling thousands of expensive books at half their cost. Between the giant houses that tower above him, and the yellow-covered gentry that prowl about his feet, an American publisher of only ordinary resources has a game to play which is really too difficult for the limited capacities of man. Who can wonder that most of them lose it?

One effect of this courtesy system is, that many excellent works, which it would be a public benefit to have reprinted here are not reprinted. Another is, that corrected or improved editions cannot be given to the American reader without bringing down upon the publisher the enmity or the vengeance of a rival. It is not common in Europe for the first editions of important works to be stereotyped; but in America they always are. The European author frequently makes extensive additions and valuable emendations in each successive edition; until, in the course of years, his work is essentially different from, and far superior to, the first essay. We cannot have the advantage of the improved version. There is a set of old and worn stereotype plates in the way, the proprietor of which will not sacrifice them, nor permit another publisher to produce the corrected edition, which would as completely destroy their value as though they were melted into type metal. Who can blame him? No one likes to have a valuable property suddenly rendered valueless. "It is not human nature." Mr. Lewes is not justified in so bitterly reproaching Messrs. Appleton for their cold entertainment of his offer to them of the enlarged version of his "History of Philosophy."

"I felt," says Mr. Lewes, "that Messrs. Appleton, of New York, had, in courtesy, a prior claim, on the ground of their having reprinted the previous edition in 1857. Accordingly I wrote to them, through their London agent, stating that I considered they had a claim to the first offer, and stating, further, that the new edition was substantially a new book. [As this is an important element in the present case, allow me to add, that the edition of 1857 was in one volume 8vo, published at sixteen shillings; and the work is so considerably altered and enlarged that a new title has been affixed to it, for the purpose of marking it off from its predecessors.] Questions of courtesy are, however, but ill understood by some people, and by Messrs. Appleton so ill understood that they did not even answer my letter. After waiting more than three months for an answer, I asked a friend to see their London agent on the subject, and thus I learned that Messrs. Appleton—risum teneatis, amici?—'considered they had a right to publish all future editions of my work without payment,' because ten years ago they had given the magnificent sum of twenty-five pounds to secure themselves against rivals for the second edition."

The omission to answer the author's letter, we may assume, was accidental. It is not correct to say that the publishers founded their claim to issue the new edition upon their payment of twenty-five pounds. The real difficulty was, that Messrs. Appleton possessed the plates of the first edition, and could not issue the enlarged edition without first, destroying a property already existing, and, secondly, creating a new property at an expenditure about four times as great as the sum originally invested. The acceptance of Mr. Lewes's offer would have involved an expenditure of several thousand dollars, at a time when, for a variety of reasons, works of that character could hardly be expected to return the outlay upon them. The exclusive and certain ownership of the work might well justify its republication, even now, when it costs exactly three times as much to manufacture a book in the United States as it did seven years ago. But nothing short of this would warrant a publisher in undertaking it. The real sinners, against whom Mr. Lewes should have launched his sarcasm, are the people of the United States, who permit their instructors both native and foreign, to be robbed of their property with impunity. Thus we see that a few hundred pounds of metal are likely to bar the entrance among us of a work which demonstrates, in the clearest and most attractive manner, the inutility of all that has hitherto gone by the name of "metaphysics," and which also indicates the method of investigation from which good results are to be rationally hoped for.

It is the grossest injustice to hold American publishers responsible for the system of ill-regulated plunder which they have inherited, and which injures them more immediately and palpably than any other class, excepting alone the class producing the commodity in which they deal. There are no business men more honorable or more generous than the publishers of the United States, and especially honorable and considerate are they toward authors. The relation usually existing between author and publisher in the United States is that of a warm and lasting friendship,—such as that which subsisted for so many years between Irving and Putnam, and which now animates and dignifies the intercourse between the literary men of New England and Messrs. Ticknor and Fields, and which gathers in the well-known room of the Harpers a host of writers who are attached friends of the "House." The relation, too, is one of a singular mutual trustfulness. The author receives his semiannual account from the publisher with as absolute a faith in its correctness as though he had himself counted the volumes sold; and the publisher consigns the manuscript of the established author to the printer almost without opening it, confident that, whether it succeeds or fails, the author has done his best. We have heard of instances in which a publisher had serious cause of complaint against an author, but never have we known an author to be intentionally wronged by a publisher. We have known a publisher, in the midst of the ruin of his house, to make it one of the first objects of his care to save authors from loss, or make their inevitable losses less. How common, too, it is in the trade for a publisher to go beyond the letter of his bond, and, after publishing five books without profit, to give the author of the successful sixth more than the stipulated price! Let every one speak of the market as he finds it. For our part, after fifteen years of almost daily intercourse with publishers, we have no recollections of them that are not agreeable, and can call to mind no transaction in which they did not show themselves to be men of honor as much as men of business. We have not the least doubt that Mr. Peterson honestly thought he had acquired a right, by fair purchase, to sell the property of Charles Dickens in the United States as long as he should continue in business, and then to dispose of that right to his successor. We are equally confident that Messrs. Harper felt themselves completely justified in endeavoring to crush the Diamond Edition of Thackeray. All this chaos and uncertainty, all these feuds and enmities, have one and the same cause,—the existence in the world of a kind of property which is at once the most precious, the easiest stolen, and the worst protected.

Almost to a man, our publishers are in favor of an International Copyright. We have been able to hear of but one exception, and this is the publisher of but one book,—Webster's Dictionary,—the work of all others now in existence that would profit most from just protection in foreign countries. There is an impression in many circles that the Harpers are opposed to it. We are enabled to state, upon the authority of a member of that great house, that this is not now, and never has been, the case. Messrs. Harper comprehend, as well as we do, that they would gain more from the measure than any other house in the world; because it is the natural effect of law, while it protects the weak, to legitimate and establish the dominion of the strong. International Copyright would benefit every creature connected with publishing, but it would benefit most of all the great and wealthy houses. The Harpers have spent tens of thousands in enforcing the observance of the courtesy of the trade, but they cannot enforce it. It is a work never done and always beginning. It cost them four hundred of our ridiculous dollars for the advance sheets of each number of Mr. Dickens's last novel; and within forty-eight hours of the publication of the Magazine containing it, two other editions were for sale under their noses. The matter for "Harper's Magazine" often costs three or four thousand dollars a number; can any one suppose that the proprietors like to see Blackwood and half a dozen other British magazines sold all over the country at a little more than the cost of paper and printing? They like it as little as the proprietors of Blackwood like it. This is a wrong which injures two nations and benefits one printer; and that printer would himself do better if he could obtain exclusive rights by fair purchase. No; Messrs. Harper, we are happy to state, are decidedly in favor of an International Copyright, and so is every other general publishing house in the country of which we have any knowledge.

Consider the case of our venerable and beloved instructor, "The North American Review," conducted with so much diligence, energy, and tact by the present editors. Not a number of it has appeared under their management which has not been a national benefit; and no country more needs such a periodical than the United States, now standing on the threshold of a new career. The time has passed when a review could consist chiefly of the skillfully condensed contents of interesting books, which men could execute in the intervals of professional duty, and think themselves happy in receiving one dollar for a printed page, extracts deducted. At the present time, a review must initiate as well as criticize, and do something itself as well as comment upon the performances of others. We believe that no number of the North American Review now appears, the matter of which costs as little as a thousand dollars. But it has to compete, not only with the four British Reviews sold here at the price of paper and printing, but with several periodicals made up of selections from the reviews and magazines of Europe. Nor is this all. A public accustomed to buy books and periodicals at a price into which nothing enters but manual labor and visible material is apt to pause and recoil when it is solicited to pay the just value of those commodities. A man who buys a number of the Westminster Review for a half a dollar is likely to regard a dollar and a half as an enormous price for a number of the North American, though he gets for his money what cost a thousand dollars before the printer saw it. For forty years or more we have all been buying our books and reviews at thieves' prices,—prices in which everybody was considered except the creators of the value and the consequence is, that we turn away when a proper price is demanded for a book, and regard ourselves as injured beings. How monstrous for a volume of Emerson to be sold for a dollar! In England and France, when the price is to be fixed upon works of that nature, the mere cost of paper and printing is hardly considered at all. Such trifles are felt, and rightly felt to have little to do with the question of price. The publisher knows very well that he has to dispose of one of those rare and beautiful products which only a very few thousands of his countrymen will care to possess, or could enjoy if it were thrust upon them. He fixes the price with reference to the facts of the case,—the important facts as well as the trivial, the rights of the author as well as the little bill of the printer,—and that price is half a guinea. The want of an International Copyright, besides lowering and degrading all literature, has demoralized the public by getting it into the habit of paying for books the price of stolen goods. And hence the North American Review, which would naturally be a most valuable property, has never yielded a profit corresponding to its real value. People stand aghast at the invitation to pay six dollars a year for an article, the mere unmanufactured ingredients of which cost a thousand times six dollars.

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