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CHAPTER 23.

COPYRIGHT AND LIBRARIES.

The preservation of literature through public libraries has been and will ever be one of the most signal benefits which civilization has brought to mankind. When we consider the multitude of books which have perished from the earth, from the want of a preserving hand, a lively sense of regret comes over us that so few libraries have been charged with the duty of acquiring and keeping every publication that comes from the press. Yet we owe an immeasurable debt to the wisdom and far-sightedness of those who, centuries ago, provided by this means for the perpetuity of literature.

The earliest step taken in this direction appears to have been in France. By an ordinance proclaimed in 1537, regulating the printing of books, it was required that a copy of each work issued from the press should be deposited in the royal library. And it was distinctly affirmed that the ground of this exaction was to preserve to posterity the literature of the time, which might otherwise disappear.* This edict of three centuries and a half ago was the seed-grain from which has grown the largest library yet gathered in the world—the Bibliothèque Nationale of France. It antedated by more than two hundred years, any similar provision in England for the preservation of the national literature.

It is a notable fact that the United States of America

*G. H. Putnam, "Books and their makers in the Middle Ages,” N. Y. 1897, vol. 2, p. 447.

was the first nation that ever embodied the principle of protection to the rights of authors in its fundamental law. "The Congress shall have power 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." Thus anchored in the Constitution itself, this principle has been further recognized by repeated acts of Congress, aimed in all cases at giving it full practical effect.

If it is asked why the authors of the Constitution gave to Congress no plenary power, which might have authorized a grant of copyright in perpetuity, the answer is, that in this, British precedent had a great, if not a controlling influence. Copyright in England, by virtue of the statute of Anne, passed in 1710 (the first British copyright act), was limited to fourteen years, with right of renewal, by a living author, of only fourteen years more; and this was in full force in 1787, when our Constitution was framed. Prior to the British statute of 1710, authors had only what is called a common law right to their writings; and however good such a right might be, so long as they held them in manuscript, the protection to printed books was extremely uncertain and precarious.

It has been held, indeed, that all copyright laws, so far from maintaining an exclusive property right to authors, do in effect deny it (at least in the sense of a natural right), by explicitly limiting the term of exclusive ownership, which might otherwise be held (as in other property) to be perpetual. But there is a radical distinction between the products of the brain, when put in the concrete form of books and multiplied by the art of printing, and the land or other property which is held by common law tenure. Society views the absolute or exclusive property in books or inventions as a monopoly. While a monopoly may be justified for a reasonable number of years, on the obvious ground of securing to their originators the pecuniary benefit of their own ideas, a perpetual monopoly is generally regarded as odious and unjust. Hence society says to the author or inventor: "Put your ideas into material form, and we will guarantee you the exclusive right to multiply and sell your books or your inventions for a term long enough to secure a fair reward to you and to your family; after that period we want your monopoly, with its individual benefits, to cease in favor of the greatest good of all.” If this appears unfair to authors, who contribute so greatly to the instruction and the advancement of mankind, it is to be considered that a perpetual copyright would (1) largely increase the cost of books, which should be most widely diffused for the public benefit, prolonging the enhanced cost indefinitely beyond the author's lifetime; (2) it would benefit by a special privilege, prolonged without limit, a class of book manufacturers or publishers who act as middle-men between the author and the public, and who own, in most cases, the entire property in the works of authors deceased, and which they did not originate; (3) it would amount in a few centuries to so vast a sum, taxed upon the community who buy books, that the publishers of Shakespeare's works, for example, who under perpetual copyright could alone print the poet's writings, might have reaped colossal fortunes, perhaps unequalled by any private wealth yet amassed in the world.

If it is said that copyright, thus limited, is a purely arbitrary right, it may be answered that all legal provisions are arbitrary. That which is an absolute or natural right, so long as held in idea or in manuscript, becomes, when given to the world in multiplied copies, the creature of law. The most that authors can fairly claim is a sufficiently prolonged exclusive right to guarantee them for a lifetime the just reward of their labors, with a reversion for their immediate heirs. That such exclusive rights should run to their remotest posterity, or, a fortiori, to mere merchants or artificers who had no hand whatever in the creation of the intellectual work thus protected, would be manifestly unjust. The judicial tribunals, both in England and America, have held that copyright laws do not affirm an existing right, but create a right, with special privileges not before existing, and also with special limitations.

The earliest copyright enactment of 1790 granted the exclusive privilege of printing his work to the author or his assigns for 14 + 14, or twenty-eight years in all.

The act further required entry of the title, before publication, in the office of the Clerk of the United States District Court in the State where the author or proprietor resided.

This remained the law, with slight amendment, until 1831, when a new copyright act extended the duration of copyright from fourteen to twenty-eight years for the original, or first term, with right of renewal to the author (now first extended to his widow or children, in case of his decease) for fourteen additional years, making forty-two years in all.

By the same act the privilege of copyright was extended to cover musical compositions, as it had been earlier extended in 1802) to include designs, engravings, and etchings. Copyright was further extended in 1856 to dramatic compositions, and in 1865 to photographs and negatives thereof. In 1870 a new copyright code, to take the place of all existing and scattered statutes, was enacted, and there were added to the lawful subjects of copyright, paintings, drawings, chromos, statues, statuary, and

models or designs intended to be perfected as works of the fine arts. And finally, by act of March 3, 1891, the benefits of copyright were extended so as to embrace foreign authors. In 1897, Congress created the office of Register of Copyrights, but continued the Copyright office, with its records, in the Library of Congress.

In 1846, the first enactment entitling the Library of the United States Government to a copy of every work protected by copyright was passed. This act, to establish the Smithsonian Institution, required that one copy of each copyright publication be deposited therein, and one copy in the Library of Congress. No penalties were provided, and in 1859, on complaint of the authorities of the Smithsonian Institution that the law brought in much trash in the shape of articles which were not books, the law was repealed, with the apparent concurrence of those in charge of the Congressional Library.

This left that Library without any accessions of copyright books until 1865, when, at the instance of the present writer, the Library Committee recommended, and Congress passed an act restoring the privilege to the Library of Congress. But it was found to require, in order to its enforcement, frequent visits to the records of the clerks of United States District Courts in many cities, with costly transcripts of records in more than thirty other offices, in order to ascertain what books had actually been copyrighted. To this was added the necessity of issuing demands upon delinquent authors or publishers for books not sent to the Library; no residence of the delinquents, however, being found in any of the records, which simply recorded those claiming copyright as “of the said Dis

trict.”

It resulted that no complete, nor even approximate compliance with the law was secured, and after five years'

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