Movement for International Copyright in Nineteenth Century America

IMPRIMI P O T E S T : GULIELMUS D'ARCY, O . F . M . C O N V . Minister Provincialis N I H I L . OBSTAT: TABLE OF CONT...

Author: Aubert J. Clark

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IMPRIMI P O T E S T : GULIELMUS D'ARCY, O . F . M . C O N V .

Minister

Provincialis

N I H I L . OBSTAT: TABLE OF CONTENTS

RONANUS HOFFMAN, O . F . M . C O N V .

Censor Deputatus

PAGE PREFACE

IMPRIMATUR: » PATRICIUS A. O'BOYLE,

Archiepiscoptis

D.D.

.

vii

CHAPTER

Washingtonensis I.

COPYRIGHT BEFORE THE NINETEENTH CENTURY

1

May 12, 1960 II.

START OF THE MOVEMENT IN AMERICA

24

III.

T H E MOVEMENT BEFORE T H E CIVIL W A R

56

IV.

T H E MOVEMENT AFTER THE CIVIL JWAR TO 1880 _

84

V.

FINAL EFFORTS : 1880-1890 _

... 118

PASSAGE OF THE PLATT-SIMMONDS A C T

... 149

Copyright 1960 T H E CATHOLIC UNIVERSITY OF AMERICA PRESS, INC.

VI.

CONCLUSION

... 182

APPENDIX

....

BIBLIOGRAPHY

... 200

WEX

- 211

MURRAY a HEISTER. INC. W A S H I N G T O N , D. C . PRINTED BY TIMES AND NEWS PUBLISHING CO. GETTYSBURG. P A . , U . S . A .

fStaats-u. Univ.-BIblloihek)

- 187

v

PREFACE Among the civilized nations of the West only the United States and Russia lagged (and still lag) in the legal protection given to literary and artistic property through international copyright laws. Before the middle of the nineteenth century all the major European countries had provided, by treaty, statute or proclamation, at least a minimum of protection for the foreign author, composer and dramatist. In many cases, this protection had been extended and codified by adherence to the protocol of the Berne Copyright Convention of 1887, and by a network of bilateral treaties covering particular situations. The United States took no official part in any of the negotiations and signed no instrument designed to provide international legal guarantees for literary property. The Constitution authorizes Congress to grant to authors and inventors exclusive right, for a limited period of time, to their respective writings and discoveries. Congress did pass its first domestic copyright law in 1790, and from time to time revised and extended the provisions of the :ederal statutes relating to copyrights. Yet, the very first law, and every subsequent law, contained the explicit proviso that the protection afforded therein by the Congress applied only to citizens or residents of the United States, and that nothing in the act shot Id in any way be construed to prevent Americans from printing the works of foreign authors. American publishers were thus allowed, indeed urged, to "pirate" foreign works. A complete industry grew up around this concept. A large part, if not the greater part, of the American printing and publishing industry and its related trades, such as binding and typesetting, became geared to a system which depended upon freedom to publish without payment the unprotected works of foreign authors. The United States, of course, enjoyed a unique position. It had ready at hand the mature and brilliant literature of its mother country, a literature written in a common tongue and entering a century of production unsurpassed in greatness. The best works vn

Preface

Prejace

of English authors (and many not so good) were reprinted by American firms which had not bothered with the formalities of permission to publish, purchase manuscripts, payment of royalties, and careful editing of authorized texts. To a lesser degree, the same process was applied to whatever French, German and Spanish works appeared likely to be profitable if pirated. The appropriation of alien literary property appeared to some as simple injustice and to others as a barrier to the creation of a distinctively American literature. For fifty-five years, from 1836 to 1891, men of these opinions carried on an intermittent, longfrustrated struggle to secure the passage of a federal international copyright law. They introduced bill after bill into almost every session of Congress; they formed organizations which sent and induced others to send thousands of petitions to Senate and House; they lobbied within and without Congress for the most simple and fundamental law. The complete story of their struggle has never been told. Treatises upon the law of copyright and accounts of the passage of domestic copyright acts, particularly of the work of Noah Webster, exist in some abundance. Yet, no single work on the history of the movement for international copyright in America has been written to date. This essay is an attempt to sketch the broad outlines of the movement over a period of years, from the first petition presented to Congress by Senator Henry Clay in 1836 to the passage of the first federal act in 1891. Attention has been centered chiefly upon the progress of international copyright in Congress, and the work of a few dedicated men who made the cause of copyright a personal crusade. No attempt has been made to relate in detail the full story of every frustrated attempt to secure international copyright during the half century. Rather, an effort has been made to present a broad view of the movement as a whole with brief glimpses of the multitude of diverse elements which contributed to its formation and progress.

haustively elsewhere, and this study avoids wandering from the historical into the legal domain except where absolutely necessary. The passage of an act in 1891 brings this account to a convenient close, but it should be noted that this jlegislative action by no means marked the end of the movement, for the law was so defective that steps to improve it were taken immediately. Indeed, the movement has not yet ceased, nor is it likely to do so until the United States has adhered to the Berne protocol or passed an equivalent federal statute. ! The author acknowledges his indebtedness to his superior, the Very Reverend William D'Arcy, O-F.M.Conv., for permission to pursue studies in history at the Catholic University of America. He wishes to express his gratitude to the staffs of the Library of Congress, the Copyright Office and the Mullen Library of Catholic University, who were unfailing in their courtesy. Mrs. Adelaide Cahill deserves special acknowledgment for typing the dissertation at great personal inconvenience. To Professor John T. Farrell, under whom this work was completed, the author owes a great debt of gratitude, not merely for the usual cogent criticisms of a majcr professor, but also for his friendship and personal interest. D i e to the careful reading of Sister Marie Carolyn Klinkhammer, O.P., the author escaped many pitfalls, particularly of style and grammar. The helpful suggestions of Dr, Alfons J. Beitzinger,| who also read the work in manuscript, are deeply appreciated. Any deficiencies, literary or historical, are to be attributed to theiauthor. Aubert J. Clark, O.F.M.Conv. St. Bonaventure Friary Washington, D. C. June 1, 1960

Vlll

The approach is chronological, following the introduction of bills and presentation of petitions in each successive Congress, but with occasional treatment of the relevant economic and literary conditions which had a bearing on the fortunes of international copyright. Every legal phase of copyright has been treated ex-

IX

CHAPTER I COPYRIGHT BEFORE T H E NINETEENTH CENTURY

The American colonies shared with England a common heritage of political institutions and traditions. This common inheritance is particularly evident in the field of the law. Most colonial charters contained the brief injunction that the; laws of the colony, whether royal, corporate or proprietary, were to be in accordance with, or at least not contrary to, the laws of England. The common law had full force in all colonies, even though local statutory law might vary somewhat, and Parliament dauntlessly legislated for the New World with complete legal validity, even if not always with de facto success. Thus it happened that, from 1607 until the American Revolution, copyright in colonial America was regulated according to English laws. Even after the dissolution of the bond between the thirteen colonies and their mother country, political institutions and legal practices in the newly-formed United States drew largely upon a lingering British cultural inheritance, stood rooted in the common law; Americans continued to look to England for their ideas, fashions and values. Despite variants, the frame and tradition are the same. Hence, it is convenient for a clear understanding of the history of American copyright law and practice to trace briefly the development and implications of similar law and practice in England. The early history of copyright law and practice in England is exceptionally difficult to trace, for it: is hidden in the murk of royal proclamations, parliamentary acts, court decisions, records of the Stationers' Company, and regulations of the Star Chamber —all inextricably intertwined with censorship and licensing. Lack of precedent was a serious handicap to the development of an orderly corpus of law. By its very nature, copyright relates to multiple, if not mass, production. In the Middle Ages books existed chiefly in single copies, almost like long letters from author to patron ^ The problem of copyright had scarcely arisen for most 1

2

Copyright Before the Nineteenth

Century

of the literary production of the Middle Ages. There were few lay writers and very little original writing. The ubiquitous monastic chronicler had renounced personal property, and even enterprising communities, which might have claimed some corporate right, were more interested in diffusion. Much of the work reproduced centered around the classics and long-dead Fathers and Doctors of the Church, and there was no one to dispute the freedom to copy. Even if someone had claimed an exclusive right to copy, it would have been almost impossible to enforce in the case of hand-written books. A tradition which allowed whoever possessed a manuscript to copy it grew with little opposition. With the coming of the great universities and the new demand for learning in the twelfth to fifteenth centuries, lay writers again appeared and thousands of scribes were employed.1 The increase in production did not cause any change in the practice of copying. The scriveners were paid, but paid for their labor, not for literary creation; and such property rights as existed were considered to exist in the physical material, not the literature. Rabbinical authorities held the opinion that one was allowed to copy a manuscript without the consent of the author, and it was considered a blessing to permit scribes to make copies.2 Christian authorities heartily agreed. One synod went so far as to declare that tbe lending of books to be copied was one of the works of mercy.3 No one seemed to give any thought to the rights of authors, and even they themselves seemed not yet to have become sophisticated to the extent of caring.4

Copyright Before the Nineteenth Century

3

an author who wished to diffuse knowledge, or merely to see his name in print. The printer had to provide press, type, paper, and cost of labor, before he could hope to think of profit. Production exceeded demand in the days of insufficient readers, and struggling printers were likely to go bankrupt. The occupational hazards of publishing were so obvious that steps were taken to protect the one willing to undergo the risks long before the abstract claims of authors received any consideration.5 A vague notion of property right in literary copy was not new to England, but the invention of printing recently introduced there had complicated already confused; theories. These were, at best, ambiguous, often contradictory, and tended to shift as the dominant theory of right to copy happened to be that of the King, of Parliament, or of the Stationers' Company. In its most simple form the modern history of copyright in England is divided into two periods: from the introduction of the first press in 1476 to the first copyright Act in 1710, and from 1710 to today. Within these periods certain events stand out as worthy of attention, since they provided the precedents for the first laws under which American copyright was to be regulated.

1 C. F. Barwick, "The Laws Regulating Printing and Publishing in France," The Library, XVI (1915-17), 69, states that there were in France

Between the introduction of Caxton's press in 1476 and the chartering of the Stationers' Company in 1557 the English printing trade was founded and developed. During this period the Crown asserted its royal prerogatives, as well as patronage, over the destiny of the new industry by a| series of decrees and proclamations. Most significant among these were the early grants of privilege through which the King gave his gracious patronage to favored printers. Though the point is subject to some dispute, the first official printer, Regius Impressor, was probably William Faques who held the office from 1504 to 1508.6 The practice of royal grant derived from the well-established right of the monarch to control new inventions, and the meaning of "invention" was extravagantly extended to cover any new publication.7 A printing

alone in 1470 more than 6,000 scribes occupied solely in transcribing MSS. 2 Philip Wittemberg, The Production and Marketing of Literary Property (New York: J. Messner, Inc., 1937), p. 20. 3 Or, at least, so says James J. Walsh, The Thirteenth Greatest of Centuries (New York: Catholic Summer School Press, 1907), p. 149. *Ibid.f p. 212.

s Marjorie Plant, The English Book Trade (New York: R. R. Bowker Co., 1939), pp. 98-99. a Frederick S. Siebert, Freedom of the Press in England:- 1476-1776 (Urbana, 111.: University of Illinois Press, 1952), p. 32. T Ibid., p. 34.

The advent of printing, however, brought a change in'the attitude of at least one party to literary production—the printer who had to bear great initial expense. He approached publication as a calculated business venture with less of the zeal or idealism of

4


Century

grant was a royal guarantee of the exclusive right of the printerfavorite to the copy specified in the grant—a profitable monopoly, in effect. Of course, the King was more interested in the resulting measure of control which he secured over the press, but the effect which interests us is the primitive protection for literary property. A royal grant or monopoly reduced, though it did not perfectly eliminate, the dangers of competition or piracy. Most important is the fact that the grants were given to printers, not authors, and the history of copyright develops through the legal protection given for economic reasons to the printing trade, not to individual authors. Property in literature was not in the writing, but in the right to produce copies. The author owned his manuscript, but if he wished to see it published, he had to bargain with a printer. The earlier printers exercised very conservative judgment on what to print. 8 Till well after 1500 they were most likely to print a selection from former generations which they knew in advance would be profitable, or to await the assurance of noble patronage. Caxtori, for example, did not produce a single original work by a contemporary.9 After 1557 an author could not even own type, and was forced to publish exclusively through a member of the Stationers' Company, and on the member's own terms. With such slight bargaining power authors gradually dwindled to practically professional servants of the printer-publisher, although an occasional very famous man, like Erasmus, might enjoy a degree of control or intimacy with his printer.10 In 1557 the Stationers' Company was chartered by Queen Mary for the purpose of regulating the press.11 She granted to it extra8 H. S. Bennett, English Books and Readers, 1475 to 1557 (Cambridge: University Press, 1952), p. 63. 9 H . B. Lathrop, "The First English Printers and Their Patrons," Transactions of the Bibliographical Society, III (1922), 85. 10 P. S. Allen, "Erasmus' Relations with His Printer," Transactions of the Bibliographical Society, XIII (1913), 297. n Graham Pollard, "The Company of Stationers before 1557," Transactions of the Bibliographical Society, New Series, XVIII (June 1937), 31-35. Despite the title, Pollard includes the charter of 1557.


5

ordinary powers such as were rarfely acquired by any other guild in order to insure an effective control of the trade, and to hinder the spread of heresy by the furtively printed word. The primary means .employed were the drastic irestriction of printing to members of the Company, the designation of fixed places of printing, and special privileges of monopoly^ The number of printers, each of whom could have two presses, was fixed at twenty-two in 1586, raised to twenty-three in 1637, and] reduced to twenty for the years 1662 to 1695.12 The number of Mkster Printers at the end of the American Revolution was only 124.13 The Crown readily continued the charter powers of this organization, which reached its peak in 1637, when all printing was placed under its control.14 The shades of restrictive planning rapidly fell on what had been a relatively unfettered occupation. Popular protest against these actions was non-existent. The Tudors carried out their policy unchallenged, in virtue of a general indifference to books, the support of the scriveners who were anxious to slow down the new industry, and the cheerful cooperation of the City of London enjoying its primacy and special privileges. The major contributions of the Stationers' Company to the history of copyright are its custom >f registering protected works, and the quasi-common law for the trade which developed out of the decisions of the Company Cour :s. The Stationers' Register was a book of record in which printers entered the titles of works which were their trade property. Only a member of the company could register a book, a practice which made author's copyright out of the question.15 By custom!, members generally respected each other's, rights in registered claims. From a rather unimportant position as a mere record, the entry of a book came, between 1571 and 1776, to assume the form of prima facie evidence of proprietorship of a book and exclusive right to print it, i.e., copyright.16 18 S. H. Steinberg, Five Hundred Years of Printing (Edinburgh: R. & R. Clark Ltd., 1955), p. 138. 13 Ibid., p. 208. "Ibid., p. 81. 16 Siebert; op. cit., p. 134. . " H a r r y Ransome, The First Copyright Statute (Austin, Texas: University of Texas Press, 1956), p. 39.

6


Century

While holders of royal patents still enjoyed rights in certain books, unassigned or unprivileged work became the property of the one who first recorded that he had secured the necessary license and published the work.17 Even royal patentees often decided that registration would afford them additional protection.18 The Stationers' Court, in form similar to the usual guild courts, was the ordinary tribunal to which internal disputes among company members were referred.19 A wealth of customary law gradually developed from the struggles adjudicated before the court. A sort of "common law" for the printing trade came into existence without order or organization. For example, the court at various times held that copyright, like other property, could be sold, exchanged, assigned, subdivided, and held in trust. 20 By the time the first colonial settlements appeared in America four basic principles of copyright practice had developed: 1. The vigorous actions of the Crown had made commonplace some central control of literary property which was rarely disputed. 2. The Stationers' Company had functioned well as an administrative agency to assist in control. 3. The registration of copy had become the ordinary method of asserting what was still a rather vague kind of property in books. 4. The Court of the Company had provided a legal basis of inchoate law. The age of the early Stuarts and the Protectorate added little to the progress of copyright. The Stuarts continued the general Tudor policy towards printing. There were, however, a number of grants of exclusive property rights, which serve as examples of copy ownership outside the Stationers' Company. With the typical Stuart eye to re-sale possibilities, most of these privileges were granted only for a limited time.21 The regulations of this period chiefly concern censorship, and were aimed at the massive floods of unlicensed works brought to prominence by the hostility


to monopoly printing and the social upheaval of the time.22 Governments of whatever political persuasion were more concerned with their relatively ineffective desire to control the political and social effects of printing and publishing, rather than theories of rights for printers or authors.! Provision Number VII of the Star Chamber Decree of 163/f rather pathetically stated that "Letters patent for the sole right to print, and copyright, must be respected."23 They were not. Discord and confusion in the trade were the chief circumstances attendant upon the pre- and postCivil War period in England. Royal privileges, monopolies, decrees of the Star Chamber, regulations of the Stationers' Company and ecclesiastical rules were all called into question. Without waiting for legal clarification, unprivileged printers snatched at the chance to publish anything likely to be profitable. Rights to copy were totally disregarded. John Milton stands out as a notable exception to the general attitude. His Areopagitka of November 24, 1644, was the first reasoned appeal for freedom of :he press in England. Among its obiter dicta is a brief plea for "the just maintaining of each man his several copy, which God forbid should be gainsaid. . . ."24 Although this plea had no immediate consequence, any more than did the rest of the treatise, the remark is important as denoting the time when a few thinking men began dimly to distinguish between censorship of the press ajid just property-rights in copy. The clarification of such an avant-garde concept was still far in the future; it was not till 172$, nearly a century later, that a second edition of the Areopagitica appeared. Till then, copyright and freedom were both beyond the mental horizon of most men. During the Civil War the balance of power had shifted from King to Parliament. Even after the Restoration, much of it re32

K

Siebert, op. cit.r p. 77. ™Ibid„ p. 78. M W. W. Greg, "The Decrees and Ordinances of the Stationers Company, 1576-1602," Transactions of the Bibliographical Society, VIII (1927), 396. 20 Siebert, op. cit., p. 79. Îbid., p. 130.

7

An account of a typical secret press and the trouble it could cause may be found in Arthur J. Hawkes, "The Brickley Hall Secret Press," Transactions of the Bibliographical Society, V I I (1926), 137-159. 23 Clyde A. Duniway, The Development of Freedom of the Press in Massachusetts (New Y o r k : Longmans, Green & Co., 1906), p. 12. M The essay was occasioned by an order of Parliament imposing very strict licensing laws; it is devoted chiefly to an appeal for liberty to print without governmental regulation.

8


Century

mained there, and Parliament appointed a "Surveyor of Writing" and attempted to clarify the maze of customs within the printing trade. Parliament attempted not to abolish the controls, but to change the source from which the control emanated.25 The Stationers' Company, somewhat discredited, was retained as the instrument now of Parliamentary control, but its old monopolistic privileges and extensive police rights were never revived.26 Neither Commons nor Lords paid much attention to copyright, though secondary clauses in the Acts of Printing for 1662, 1664, and 1665 required entry in the Register of the Stationers' Company—a requirement which seems to have been quite ineffective.27 Affairs seemed to go on much as before, minus a few royal monopolies. Despite constant efforts the printers were unable to effect any major changes in law or practice. When the Act of 1694 was allowed to lapse, the literary trade fell into general anarchy.28 During the entire period so far discussed public dispute about copyright was carried on chiefly, if not exclusively, by legitimate and piratical printers and booksellers.29 There were chronic piracies by needy printers who owned no copy, as well as^ by greedy printers who appropriated the copy of lesser men. Authors were not conspicuous in the courts or Parliament, with a very few notable exceptions, like Milton. At considerable hazard authors bargained independently with the printer of their choice, or sought royal letters of patent, and left the work of protecting the profitable right to copy to the ones who profited. The first English copyright act effected a complete reversal of this situation. It deserves special attention as the legal basis for all subsequent English and American law, and marks the establishment of the modern relationship between author and printer-publisher. An April 4, 1710, Parliament passed an "Act for the Encourage28

William M. Clyde, "Parliament and the Press," Transactions of Bibliographical Society, XIV (1923), 52. Many then complained that Parliamentary control was but the Star Chamber under a new name. 20 Siebert, op. cit., p. 233. 21 Ransome, op. cit., p. 85. a Ibid., p. 89. 29 Pollard, op. cit., p. 109.


9

ment of Learning." 80 It placed the origin of literary property in the act of composition, and designated the author as the primary possessor of right in copy not transferred to another. The act distinguished between "old" books, i.e., those already created and possessed by someone, and "new" books, i.e., those not yet in existence, yet to be written. Anyone already enjoying rights to an "old" book, whether author, printer, or bookseller, was to have the sole right to print such books for twenj:y-one years. The author of any book composed but not yet published, or any book hereafter composed, was to have the sole right to publish such a book for fourteen years, and the right was automatically renewed for a second fourteen-year period if the author was alive at the end of the first. Any unauthorized person who dared print any book without the written consent of Its author or literary proprietor was subject to penalty of confiscation and a fine of one penny per sheet. The Act of Anne provided that no; one was to be liable to these penalties unless title to the work had been entered upon the Stationers' Register. Since nine cophs had to be deposited upon registration, this clause remained relatively inoperative unless the fact of registration was needed for a court claim or similar legal purposes. The nine copies were intended for the royal and university libraries, and are the ancestral prototype of our present-day deposit copies. The Act was not a great success m practice.31 It did not give protection from pirated works imported from abroad, or books in foreign languages. The Dutch and Irish pirates were notable offenders in this field, and an Irish piracy sold as much as fourteen shillings below London list prices.32 Besides such practical weaknesses, there were theoretical objections. The implications underlying the foundation of the Act of Anne, i.e., whether or not the act destroyed the perpetual copyright to which an author was supposed to be entitled by natural law, were attacked then and 80 Ransome, op. cit., pp. 109 ff. This was the famous "Act of Anne." Ransome's work deals in great detail with every aspect of the law. 31 A. S. Collins, "Some Aspects of Copyright from 1700 to 1780," Transactions of the Bibliographical Society, VII (1926), 69. 32 Pollard, op. cit., p. 112.

10


Century

later. Despite this, the Act marked a watershed in copyright history. Its importance lies in the designation of the author as the source of right to copy, and in the legal decisions which it evoked over the next century and a half. With the Act of Anne the modern period of copyright begins. Between 1710 and 1776 the English government made very few additions to the law of copyright. There were particular grants, such as the Act of 1775 which gave perpetual copyright to the universities for work bequeathed to them.33 There were occasional regulations, such as the Act of 1734 which extended copyright to prints, and engravings.34 But colonial America developed its earliest copyright practice under the Act of Anne and local regulation. As in so many matters, direct control of the press and publication was exercised by the colonial Governors, whose power, while absolute, was generally lightly and infrequently administered.35 It is worth noting that the Declaration of Independence contains in its list of complaints no hint of any interference with the liberty of printers, authors and publishers. Printer Benjamin Franklin would no doubt have seen to the insertion of some relevant remark if there had been any need for it, but never was freedom of the press in America seriously violated on intervention of King or Parliament.36 Although the "mystery" of printing came early to America with the introduction of the first press to Massachusetts in 1639,37 it was slow to spread and develop. Twenty-six years elapsed before a second press was established, and only three presses operated during the seventeenth century.38 In the first half of the eighteenth century, six other colonies acquired presses, and by the time of the Revolution every colony except Maine and Vermont had at 33

15 George I I I , c. 53. 8 George II, c. 13. ^ H e l l m u t Lehman-Haupt, The Book in America (New Y o r k : R. R. Bowker, 1951), p. 45. 80 Lawrence C. Wroth, The American Bookshelf, 1775 (Philadelphia, The University of Pennsylvania Press, 1934), p. 8. 37 Lawrence C. Wroth, The Colonial Printer (Portland, Me.: The Southwork-Authoensen Press, 1938), p. 14. ™lbid., p. 59.


11

least one printing establishment. Between 1675 and 1700 Boston established primacy in the American publishing world.38 The number of printers operating in eighteenth-century America cannot be determined with accuracy. During the last decade of that period approximately fifty-five printers operated in Boston, some only briefly.40 During the same period forty-one booksellers, some of whom were also printers, left record of their existence.41 Philadelphia became an important literary center near the end of the century. An examination of the records of the clerk of the district court of Pennsylvania shows that at least thirty-five different printers produced a variety of works in Philadelphia between. 1790 and 1794.42 Printer-publishers, of course, operated in the other states, and books of all sorts were published in rapidly increasing numbers. The important conclusion, for present purposes, is that by the beginning of the nineteenth century one necessary factor for a movement toward international copyright was present in America. That this factor was not present beforje the nineteenth century is evident from an examination of the nature of the work of the American press. There was striking similarity in all early production. The major sources of income for t i e colonial presses were government work and ephemeral pieces, such as blank forms and notices. The first work of every pre-Revolutionary press but two was a government document.43 Without indispensable government patronage the press could not have existed. The rest of the limited output centered around advertisements, tickets, forms, certificates, and similar single sheet matter—all very unlikely to be the subject of copyright. Only a very limited output of even such simple matter could be expected from the hand presses common till the nineteenth century. Two men, working eight hours a day, could print approximately

M

38 John T. Winterich, Early American Books and Printing (Boston: Houghton, Mifflin Co., 1935), p. 33. *°Ro31o G. Silver, "The Boston Book Trade" in Essays Honoring Lazurence C. Wroth (Portland, Me.: The Authoensen Press, 1951), p. 297. 41 Ibid., p. 298. "Ibid., p. 103. w Wroth, The Colonial Printer, p. 59.

12



Century

1,000 sheets per day, so that it would take two hundreds days to produce an edition of 10,000 copies of a normal sized book, i.e., an octavo volume of 320 pages.44 With the exception of a very few, printers did not exceed an output of six books per year in the sixteenth century, and the average for the whole industry in England during the seventeenth century was 100 per year.46 There was actually an average decline in the eighteenth century when the number fell to 93 per year, and the Register of the Stationers' Company showed that between 1714 and 1774 only 50 books per year were entered.46 Accurate figures for the output of the American press before the nineteenth century are not available. Evans computes the total output from 1639 to 1799 at 36,000 pieces of works preserved. Much of this was ephemeral, and certainly more was printed than has been preserved. Lawrence Wroth has calculated that where one title of a colonial publication has been preserved, 4.7 pieces were actually printed.47 Reasonable approximations can be deduced from representative sale catalogues and printers' work books. Some 58 catalogues from the eighteenth century survive. The earliest known catalogue issued by an American bookseller was that of T. Cox of Boston, who published a twenty-nine page booklet in 1724.48 The second was Benjamin Franklin's catalogue of 1744, and others followed fairly profusely. The most extensive was Caritat's catalogue of 1799.49 This contains 2,700 titles. The most interesting was John West's which has the largest selection of American titles in print in 1797.50 From these catalogues it can be deduced that the vast majority of works offered to the American public in the eighteenth century were foreign imports, mostly from London. The selection is quite wide, ranging through law, history, religion, biography, fiction, " Plant, op, cit., p. 89. "Ibid., pp. 91-92. "Ibid., p. 92. "Wroth, The Colonial Printer, pp. 184-186. "Ibid., pp. 32, 275. 19 LeRoy Kimball, "An Account of Hocquet Caritat," The Colophon, Part 18, no paging. 50 Wroth, op. cit., p. 36.

13

science, poetry, and education. Apparently the majority of books available in London were also available in America. Throughout the whole of the seventeenth and eighteenth centuries American libraries were constantly increased by shipments from England,51 and some very interesting lists of English and foreign books in the colonies have been made.52 j The important fact is the paucity of American works. The early American press was largely utilitarian. A list from Franklin & Hall's work book for 1763 shows only six pieces that could be regarded as literary productions.53 From 1638 to 1670 the Cambridge Press published only 157 pieces of any kind of work.54 Only one catalogue, that of Isaiah Thomas of Boston, issued in 1791, is devoted exclusively to American productions. It was issued with the proviso that it was for the friends of literature who wished to "encourage the Art of Printing in America."55 It contains 204 titles. A somewhat later list could boast 408 American titles,56 and one of 1796 had 395 entries.57 The largest offer of the whole century was 650.6S These pre-Revolutionary specimens of Americana are not to be despised, for assortment of literary forms in rather resr. ectable style, but in all the listings there does not emerge the title of a single memorable work of imaginative literature.59 A formidable proportion of the work of the early American press was newspaper publishing. From lrj90 to 1810 some 2,120 newspapers conveyed to local inhabitants ntost of what they knew of affairs of the day. Many papers ceased at birth, or failed to run 61

Thomas Goddard Wright, Literary Culture in Early New England (New Haven: Yale University Press, 1920), p. 32. "Ibid., pp. 224-237. 63 Wroth, The Colonial Printer, pp. 218-222. M Wright, op. cit., p. 82. 06 Wroth, op. cit., p. 50. "Ibid., p. 55. "Ibid:, p. 57. »-JWhers lost no time in pirating the works of Saunders & Otley, ruining the New York branch financially. The importance of the venture lies not in the business defeat, but in the work that Saunders di i to help launch the movement for international copyright. In fact, he claimed in all modesty later that he was the sole pleader with Congress during 1837-38.62 After attempting a disastrous commercial duel with Harper's, Saunders.gave up publishing. Details of!his later life are somewhat obscure, but at one time or other he ran a bookshop, which was a meeting place for those interested in international copyright. At one time, he served as city editor of the New York Evening Post m Arno Bader, "Frederick Saunders and the Early History of the International Copyright Movement in America," Library Quarterly, V I I I (1938), 26. 80 S . G. Goodrich, Recollections of a Lifetime (New York and Auburn: Miller, Orton & Mulligan, 1856), I I , 357. *• The Knickerbocker, X V (1840), 529 and X I X (1842), 384. M Frederick Saunders, "A Reminiscence in Copyright History," Publishers Weekly, X X X I I I (1888), 988. The facts in this account are taken chiefly from Saunders' own reminiscences and Bader, op. cit.

42

Start of the Movement in America


under Bryant, and used his position to plead the cause in the newspapers. He also helped in the construction and presentation of petitions to Congress, and it was in this way that the problem of copyright was first brought to the attention of the federal government. A petition was prepared in London by Saunders & Otley, entrusted by them to the hands of Captain Wilkes of the United States Exploring Expedition, who delivered it into the hands of Senator Henry Clay. This was the now-famous British Authors' Petition to Congress. Signed by fifty-six of the foremost English writers, it reads like a "Who's Who" of nineteenth-century literature. Notable among the signers are Edward Bulwer-Lytton, Thomas Carlyle, Benjamin Disraeli, Maria Edgeworth, Harriet Martineau, Robert Southey, and Thomas Moore.83 The authors stated their case briefly and succinctly:

referred to a special committee, and the Senate's President appointed Senators Clay, Preston, Buchanan, Webster and Ewing to the committee.65 On February 13 Churchill Cambreling, of New York presented the same petition to the:House 0f Representatives without comment. It was referred to the Committee on the Judiciary, but, after ordering it to be printed, no further action was taken by the House. 68 *The Senate Committee, however, submitted both a report and a bill to amend the Copyright Act of 1831.6T The Report was highly favorable to the idea of international copyright. The Committee based its stand partly upon the sacred concept of property:

That your petitioners have long been exposed to injury in their reputations and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America.64 The authors, in the course of the petition, repeatedly use the term "property," perhaps under the influence of the natural right theories, or perhaps hoping thereby to appeal to the business instincts of Congress. They pointed out, also, how they suffered injury to their reputations because of mutilations, changes and alterations at the whim of American publications. (It is true that special endings suitable for this side of the Atlantic were occasionally added or substituted, and those who used a foreign work to fill out space were not overly-concerned about chopping off a bit here and there.) The authors, therefore, humbly begged Congress to redress these wrongs by extending copyright protection to foreign authors. Senator Henry Clay presented this document to the Senate on February 2, 1837. On his motion, it was agreed that it should be 63

U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 134. "Ibid., Section 1.

43

That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence.68 Accepting this, the Committee drew the logical conclusion: It being established that literary property is entitled to protection ought to be afforded \ wherever the property is situated. . . . We would be shocked if the law tolerated the least invasion of the rights of property in the case of merchandise, whilst those which [justly belong to the works of authors are exposed to iviolation without the possibility of their invoking the aid of the laws.69 Nationality of an author should not affect his property any more than it did the bale of merchandise belonging to a foreign exporter. The Committee presented a bill which they thought would remedy the situation. * U. S. Congress, Journal of the Senate; 24th Cong., 2d Sess., 1936, p. 192.

88 U. S. Congress, Journal of the House of Representatives, 24th Cong., 2d Sess., 1836, p. 400. w U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 179. *.lbid., Sec. 2. *Ibid., Sec. 2.

44


Start of the Movement |m America

The bill proposed to extend the copyright Act of 1831 to work composed by authors of Great Britain, Ireland and France. It limited protection to works not yet published, as the. Committee put it, "buried in the minds of genius." They had no intention of trying to redress past wrongs. The proposed law laid down the conditions that protected works must be printed and published in the United States. This is the well-known "manufacturing clause," with which all subsequent American copyright laws have been tainted. The very first international copyright bill presented; to Congress made the protection of foreign authors dependent.upon manufacture in the United States. It was a futile attempt:.to reconcile the rights of authors and the vested interests of the book industry. The impossibility of doing this to the satisfaction of both parties was, and is, the chief obstacle to the movement.:

right. His career as the distinguished hfead of the firm which bears his name is well known. Starting with the first organization in 1837, while he was still a junior employee of the New York firm of Wiley & Long, until his death in 11872 Putnam continued a series of vigorous, if futile, struggles on behalf of copyright. He was the Secretary and chief workhorse for every subsequent Copyright Association. An indomitable personality, with an established position in the trade and contemporary society, he, more than any single man, kept the crusade alive through repeated failures.7 The opposition, which Putnam and his circle had to face for decades, were not unworthy opponents, The vast majority of ordinary people, of course, were indifferent' not understanding and not caring. This, in itself, was a serious handicap. At most, they knew somehow or other that international copyright would perhaps affect the, price of books, or help England, or maybe help American writers—or something! Francis Lieber, speaking of the phenomenal sales of his encyclopedia, pointed out that the era from the 1830's on was an age when the common man was struggling for hegemony, and he was : sure that his greatest weapDn was .education.72 Hence, he was opposed to anything which night in any way limit his freedom to. seize an education, including that garnered by readingpirated books.

The report and the proposed bill stimulated widespread discussion.. The proponents of the bill were chiefly a small group of writers, foreign publishers, intellectuals, and men interested in international justice. Some advocated the law in the interests of native American literature; some had suffered personally, irom piracy or the system under which it operated; some pleaded the cause of an abstract right on philosophical grounds.: They expressed themselves vigorously, and were fortunate to be engaged in a metier which lent itself to propaganda. Out of this attempt to secure passage of the Clay Bill came the first of many organizations to. promote the cause of international copyright. In 1837 George Palmer. Putnam organized the American International Copyright Association.70 The activities of the first committee were limited to appeals to the press and petitions to Congress. Bryant, Halleck', Andrew Matthews, Fay and Cooper were the most outstanding members. They obtained no results from their efforts, and the organization lapsed around 1839. It would be revived over and over again whenever any prospect of success for international copyright appeared likely. The Association itself was not half as important as its founder. George Palmer Putnam is remembered as an almost tireless worker in the early stages of the movement for international cbpy70

George Haven Putnam, op. cit., pp. 33 and 160 ff.

45

Opponents of international copyright included publishers, booksellers, printers, binders, paper-makers, and all those dependent upon "the game." There were also a few more altruistic opponents of international copyright who honestly thought that such a law would not be in the best interests of the United States. The anticopyright interests confined themselves largely to petitioning Congress on behalf of the book industry. Whether they were forced to this by lack of other means, or whether shrewd businessmen knew where ;the real decisions would be, victory in the only forum which counted was theirs. Congress listened to the opponents of copyright in spite of all publicity or propaganda on behalf of the author's rights. n The bulk of Putnam's efforts occurred later in the century, so specific treatment.of his work is postponed till later in the present study. 78 Frank Freidel, Francis Lieber,. Nineteenth Century Liberal (Baton Rouge;-La.: Louisiana State University Press, 1947), p. 78.

46


Start of the Movement in \ America

Since the arguments for and against an international copyright law remained generally the same throughout the century, it might be well here to summarize the major contentions of both sides, particularly noting the points brought forward in connection with the Clay Bill. The advocates of copyright based their stand on two fundamental themes, i.e., justice to individual authors and national interest. The opponents relied upon the popularity of the cheap book, denial of the "property" theory, hatred of "monopolies," and the danger to the economic welfare of the nation if the book industry were disturbed. To most of those who favored copyright protection the moral issue was the fundamental point. Having shown (to their satisfaction) that copyright was demanded on the grounds of justice, they regarded all other arguments as superfluous and misleading. Nothing more could be said; copyright must be granted at once. Their attitude reminds one of the abolitionist approach to slavery, and at times the struggle for copyright took on the appearance and tone of a crusade. The "justice" expected from a copyright law flowed from their philosophical concept of property. The juristic theory of literary property is of relatively recent origin. As we have seen, rights in literary property were first recognized in connection with the printer, who had the strongest interest. When the period of privileges and monopolies came to an end, a basis was sought for authors' rights independently of royal grants or publishers' privileges.

possession or owned, but is in vacuo, so to speak. . . . It is a prohibition of conduct remote from the persons or tangibles of the party having the right. It may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong, lit is a right which could not be recognized or endureci for more than a limited time, and therefore, I may remark in passing, it is one which hardly can be conceived except as a product of statute, as the authorities now agree/ 3 Today the idea seems to have been abandoned except in France, England and the United States.74 In these nations the fact that copyright used really to be a privilege granted by the king led to a reaction, and the right later granted to I authors was considered a property, out of hostility to privileges or monopolies. The general philosophical trend of the nineteenth century helped to perpetuate this attitude, and most of the American proponents of international copyright adhered to, or; at least alluded to, the theory. The argument was advanced in the Petition of the Citizens of Boston presented to the Senate on April 24, 1838, by Senator William Rives. Seventy-eight prominent citizens, headed by Edward Everett, signed. The memorial contained a clear statement of the property theory: The plea of the British authors appears to us to be founded in the plainest principles of justice. Our law already recognizes the right of native citizens to hold and transfer literary property as fully las it recognizes the right of transferring any other species of property. We cannot well conceive why a foreign author should not have the same liberty and right to consign or transfer literary property to his agents in this country that a foreign merchant has to transfer and consign his merchandise.™

The law did not ignore claims based upon the principle of securing to industry its fruits and to capital its profits, but the place of the creative author was subject to some doubt. The property theory, in its most simple form, is based upon the idea of creation through personal industry. But there are certain obvious difficulties in adapting legal theories meant for material property to the idea of copyright. Mr. Justice Holmes stated some of them: The notion of property starts, I suppose, from confirmed possession of a tangible object and consists in the right to exclude others from interference with the more or less free doing with it as one wills. But in copyright property has reached a more abstract expression. The right to exclude is not directed to an object in

47

Secondary arguments followed from the primary moral conten73

White-Smith Music Publishing Co. v. Apollo Co., 209 U. S: 1 (1908), 18. * Stephan P. Ladas, The International Protection of Literary and Artistic Property (New Y o r k : The Macmillan Co., 1938), I, 7. 75 U. S. Congress, Senate, Public Documents printed by order of the Senate, 25th Cong., 2d Sess., 1837, Vol. V, Doc. No. 398. 7



tion. A proper law would secure to foreign authors just reward for their labor. This they certainly were not receiving in full measure, if they were paid at all. It is worth noting that sincere proponents of copyright, like George Palmer Putnam, adhered to the logical consequences of their theory in business practice:

Writing as a profession would never be attractive to native talent as long as the average author had to compete with the great masters of England whose works were appropriated without cost. No publisher would bother with unrecognized writers, who had to be paid, if he: had at his disposal the certamly great literature of the world. Even men of great talent who managed to gain a reputation in spite of competition, as well as alreac.y famous American names who; sought a publisher, hardly had a fair chance in the uneven struggle. The experience of a few authors will illustrate the difficulties. Until the time of Washington Irving and James Fenimore Cooper, no American author made a living solely from the profession of writer. Longfellow was the:first to do so by writing poetry.79 As late as 1842, Lowell received but $10 per poem.80 In 1853. Hawthorne's royalties from Mosses from an Old Manse totaled $144.09.81 Later, an. established author like Mark Twain might receive 50 per cent of the profits,; as he did for Roughin' It. Then again, he might not, for his publisher refused to grant the same amount for The Adventures of Huckleberry Finn.82 Indeed, publishers were not enthusiastic about any royalty payments, which usually forced them to raise retail prices. A less famous author had no., hope. of getting any worthwhile sum. A tense comment from one who should have known desci ibed the situation:

48

From the outset of his career as a publisher, my father declined to consider any suggestions for publishing works of contemporary authors excepting under arrangements with those authors. Irrespective of the protection or lack of protection afforded by law, he held that authors should be left in full control of their productions and that political boundaries had no connection with the property rights of the producer. . . ,76 Finally, a proper law would prevent mutilation by publishers who "adapted" works for American readers. That this practice was not uncommon is evident from its mention in the Petition of British Authors and occasional correspondence of writers." The second major argument, national interest, had many facets. The basic tenet was that American authors and American literature would benefit by the passage of a copyright act. Precisely how this would come about was not always too clear. Advocates argued that the United States would never achieve cultural independence until it ceased to rely upon foreign literature, even a source so closely allied as England. The petition of American authors presented to the Senate by Clay on February 15, 1837, emphasized this aspect: Native writers be as indispensable as a native militia; that, although foreign writings may be had cheaper, owing to the present law of copyright, our people must look for the defense of their habits, their opinions, and their peculiar institutions to those who belong to them and have grown up with them—to their own authors, as to their own soldiers.78

, We do not see much hope in the: future for the American writer in light literature—:as!a matter of profit it might be abandoned.83 '! It was almost abandoned, and men and women who realized that the profession of letters would not offer them a livelihood turned to other fields. No one knows what;might have been produced in America during the years when these conditions were prevalent, 70

78

Putnam, op. cit., pp. 32-33. 77 Ci supra, 42, and Putnam, op. cit., p. 86, for an example of a complaint voiced by Elizabeth Barrett Browning. 78 U. S. Congress, Senate, Public Documents printed by order of the Senate, 24th Cong., 2d Sess., 1836, Vol. II, Doc. No. 141.

49

Hart, op. dt., p. 127. Lehman-Haupt, op. cit, p. 113. 81 Hart, op. cit., p. 93. 53 Ibid., pp. 148-149. 53 Bradsher, op. cit., p. 93, quoting a letter from Carey to W. Gilmore Simms, 80

Of I

Start of the Movement in -America


52

eray.S8 Putnam made a great point of the superior quality of books which would become available, if the proper law passed: Those who are familiar with the business of making books assert further, moreover, that a copyright measure will have the effect of lessening the prices of all the better classes of books . . . and the only publications which will be increased in price are the cheapest issues of foreign fiction. . . . In France and Germany, on the other hand, countries both fully under the control of copyright, both domestic and international, the first issues of standard and current publications, both copyright and non-copyright, are cheaper than anywhere else in the world. . . . In Europe, where international copyright is in force, the best books are the cheapest. [Italics his] 89 T h e ' opponents of international copyright concentrated on refuting the points outlined above, and on depicting the dire consequences to American publishing interests and the general reading public should a law be passed. Generally, they avoided the more philosophical discussion of abstract property rights, and the Senate Committee on Patents, for one, went along with them' on this, for in its report to the Senate it declined even to discuss the theory. of authors' natural rights.90 When they did touch on the theory, the opponents of copyright tended to hold that copyright was merely a matter of legal right, extension of which would be a matter of mere expediency, not justice. Since foreign authors had no statutory rights in America, to copy their works could not be considered legally as piracy or an injustice. A petition of the booksellers of Boston, presented to the House on April 16, 1838, by Mr. Fletcher of Massachusetts pointed out that the law in England applied only to the British. It suggested that when England offered protection to others, the United States could do the same. It was a question of statute promoted by expediency or interest, not a matter of justice.91 88

Putnam, op. cit., p. 87, quoting a letter of Robert Browning. George Haven Putnam, The Question of Copyright (New Y o r k : G. P. Putnam's Sons, 1891), p. 442. 00 U. S. Congress, Senate, Report of the Committee on Patents, 25th Cong.,

53

A number of secondary arguments were advanced, not too seriously. The English authors received payment at home, and that should be enough for them. Their books were not mutilated to any serious extent. Actually, they should be pleksed to the honor implied in copying, which incidentally increased their fame at home. Similarly specious arguments were directed at the protesting American authors. The basic theme here; seemed to be that they were so poor that their works just weren't worth printing. Such arguments are obviously weak, and one j has an impression that their proponents did not really place too much value on them. They preferred to rely on arguments cdntered around the effect of the proposed laws on industry, dragging in, if possible, the issues of protection. The opponents of copyright were openly protectionists, which often worked to their advantage. The petitions presented against the Clay Bill afford an excellent summary of the contentions of the opponents of international copyright. Various groups presented a total of nineteen memorials against the bill. The first, presented on behalf of the citizens of Philadelphia by Buchanan, claimed that the proposed law would be productive of the most "deterious [sic] consequences."93 Pointing out that book-making establishments were a very important branch of the national industry, the petitioners claimed that it would be paralyzed if the bill became law. They drew a pathetic picture of unemployment, as well as noting the effect of a copyright law on prices. Congressmen were invited to consider how their constituents would react to the "tenfold" increase in book ! prices, which they predicted. The Columbia Typographical Society of the District of Columbia presented a similar memorial a few weeks later.93 It stated that the union felt that the proposed law would result in the "immediate destruction" of the book printing business of the United States with consequent unemployment to the thousands of workers depending thereon. It, too, mentioned the increase of prices to be expected.

89

2d Sess., 1837, Doc. 494. 01 U . S. Congress, H . of R., Executive Documents Cong., 2d Sess., 1837, Vol. X, Doc. N o , 340.

of the H. of R., 25th

02

U. S, Congress, Senate, Public Documents printed by order of the Senate, 25th Cong., 2d Sess., 1937, Vol. II, Doc. No. 102. "Ibid., Ill, Doc. No. 190.



The two petitions contained all the important points dear to opponents of copyright. They were never essentially changed or improved upon, though various secondary considerations might he added as time and circumstances dictated. Little needed to be added. The threat to American industry, fear of unemployment, and cheap books for the masses had sufficient effect, at least upon Congress. Clay had presented his bill in February of 1837 and the argument raged till June 25, 1838, when the Committee on Patents brought in its report.94 It was adverse to the Clay Bill. The Committee stated that the existing law was sufficient. It offered its opinion that the petition of the British Authors was a screen for their greedy desire to monopolize the American market. The Ruggles Report, as it is called after its chairman, specifically stated that the operation of the law would work a great detriment to American manufacturers. The Report must have diminished the chances of success for the Clay Bill, but the point was never put to the test, for the session ended without further discussion

advocates were divided among themselves. The opposition, which presented what Congress regarded as most cogent arguments, was too much to overcome. Congress, reflecting the general attitude, was indifferent to the whole subject. Most Americans had no real understanding of the fundamentals; or implications of copyright. They did, however, appreciate the feet that somehow or other the lack of copyright was associated with cheap books, which they wholeheartedly favored. Moreover, we must not neglect the rather intangible factor of anti-British feeling. Although difficult to measure or specify, it is generally conceded that the feeling was prevalent in nineteenth century America, j and that it colored the opinion of Americans on the advisability of protecting British interests.

54

on July 9th. Clay tried to keep the matter before Congress, introducing the same bill on December 17, 1838, and again on .January 6, 1840. Both were referred to the Committee on the Judiciary, which sent a report to the floor that it neither agreed or disagreed with the bills.95 Clay could not get time for a hearing, and on January 17, 1841, they were ordered to lie on the table and there they died. Clay made a last effort on January 6, 1842, when he again presented the same bill, which was again referred to the same Committee. This time, Clay interrogated the members and finding them adverse, requested that no report at all be made.96 There the matter rested. This finished what may he considered the first phase of the fight for international copyright. It is easy to account for the failure of the early efforts. The movement lacked organization, and its M

U. S. Congress, Senate, Report by John Ruggles of Maine from the Committee of Patents, 25th Cong., 2d Sess., 1837, Doc. No. 494. 95 U. S. Congress, Journal of the Senate, 26th Cong., 1st Sess., 1839, 87. "This was probably because the Senate was then engaged in discussion of a copyright treaty with England, which it was hoped would be a more acceptable way of securing protection than a law.

55

Finally, the pre-occupation of America with other problems, deemed more pressing, explains a large measure of the indifference to copyright. The tariff, the Bank of the United States, public lands, and the approaching struggle over slavery precluded any serious or lengthy consideration of what must have been regarded by most as a very minor matter.

The Movement Before the Civil War

CHAPTER III T H E MOVEMENT BEFORE THE CIVIL W A R

Having received a setback in the defeat of the legislation proposed by Henry Clay, the movement for international copyright remained dormant for a few years. One new advocate, however, plunged into the controversy with a vigor which, if it secured little in the way of concrete results, did at least keep the idea of copyright alive. The German-born publicist and scholar, Francis Lieber, started to give open support to the movement in 1840. He was admirably equipped with philosophical background and mternationalistic propensities perfectly suited to the issue. Lieber had come to the United States in 1827, fleeing from his native Prussia under police investigation for his liberal tendencies.1 In 1840 he was professor of history and political economy at South Carolina College. In the course of his career in America, he had come to number among his friends many influential politicians and literary figures, particularly the fast-growing groups of Germanophiles. Those who, in 1828, cooperated with him in writing the Encyclopedia Americana comprised some of the most distinguished American authorities. Lieber gained his first fame from editing the encyclopedia,2 as well as from many works on political science and jurisprudence. The latter volumes, particularly, exhibited a regard for property rights which go far to explain his support of the movement for extension of the federal law. In addition, Lieber was perennially concerned with international problems. He promoted the cause of international arbitration among private persons and groups, acting as official and private arbiter on various occasions; he wrote 1

"Francis Lieber," Dictionary of American Biography, X I , 236. -Lieber was not too careful of copyright in compiling the Encyclopedia, for he borrowed heavily from books, periodicals and other encyclopedias. So did those who prepared articles for him. Frank Freidel, Francis Lieber, Nineteenth Century Liberal (Baton Rouge, La.: Louisiana State University Press, 1947), pp. 68, 7S,

56

57

for the Revue de Droit Internationale; and generally he contributed to (some would say meddled in) every international affair from 1830 to 1872. International copyright was just one among his many liberal projects, like the Red Cross or prison reform. The favorite Lieber device to promote anything he favored was the pamphlet. In March 1840 he wrote a long essay on the theory of property in literature, ostensibly in the form of a letter to his friend, Senator Robert Preston of South Carolina, a former president of the college. The letter may have been inspired by a letter from Henry Clay on the publishers' lobby!: The difficulties which have been encountered, and will continue to be encountered, in the passage of a liberal Copy Right law proceed from the trade [italics his], especially the large book printers in the large cities. It is very active, and brings forward highly exaggerated statements both of the extent of Capital employed and the ruin that would be inflicted by the proposed provision for Foreign authors. These statements exercise great influence on members of Congress, many of whom will not enquire into the truth of them.3 Lieber intended that Senator Preston use 1 is essay, and the notes he supplied along with it, in the next Senate debates. But it came too late for this, and Lieber decided to publish it as a pamphlet. Not able to secure a publisher willing to print it on a commercial basis, itself a commentary on the situation, Lieber had it done by Wiley & Putnam at his own expense. The work was at least widely reviewed, if not read, and stirred up some comment from the Boston Courier, the American Jurist, the North American Review, the Charleston Mercury, and the Southern Quarterly Review.11 The theme of Lieber's argument was the strict theory of property in literature. He dwelt upon the special form of creation involved in literary production, pointing out how this was above all a product of individuality, not made by governments, but following s C l a y to Lieber, June 19, 1839, in Lieber papers quoted by Frank Friedel, "Lieber's Contribution to the International Copyright movement," Huntington Library Quarterly, V I I I (1945), 201-202. * Friedel, Francis Lieber, p. 190, f. 41.



from the mind of the authors. While Lieber was generally admired for his sound philosophy of property (his work, Property and Labour, was well received the following year), the admiration did not extend to every specific idea. Senator Preston at first agreed with his friend, but said later that he was shaken by an article of Charles Renouard in the American Jurist which developed the theory that an author's right to just recompense could come only from positive, not natural law.6 Besides doubting the theoretical foundations of Lieber's cause, the Senator was not unaware of the more practical side when he noted:

law of England, even going so far as to make detailed suggestions on the provisions of the Talfourd Bill.8 The first edition of Pickwick Papers in book form was dedicated to Talfourd in recognition of his efforts to aid authors. 9 Dickens expressed disappointment when the Talfourd Bill failed to get through Parliament. The need for international copyright tb protect his own works from American piracy must have occurred frequently to Dickens. He had, in fact, mentioned the practice in! correspondence with the editor of the Knickerbocker Magazine two years before his visit.10 Whether or not Dickens came to this country primarily or precisely as a missionary for international copyright is disputed. After publication of American Notes upon return to England, an unsigned article in the Edinburgh Review for January 1843, asserted that Dickens had gone to America as a kind of missionary in the cause of international copyright. Dickens hotly denied the accusation, and accepted an offer of retraction, made to him by the editor, in this way:

58

Great Britain had two authors to our one, and was, therefore, more interested in the protection of mental labor; while the United States published three or four times as many books and, therefore, was more interested in protecting publishers.6 As far as is known, nothing came of Lieber's pamphlet. A friend promised to give a copy to President Tyler and discuss the matter over a friendly bottle of wine, and Lieber's biographer feels that this played a part in Tyler's sending to Congress some correspondence with Great Britain concerning international copyright. Since Congress had requested it, and there was no apparent reason to refuse, Lieber's pamphlet may or may not have helped.7 The lack of evident response did not discourage Francis Lieber. for he supported international copyright till his death in 1872. His efforts, however, were soon overshadowed completely by another far more fascinating event. The event which brought the matter of copyright to the attention of the nation at large was the visit of Charles Dickens to America in 1842. Dickens was no stranger to copyright movements. He had interested himself in the efforts of his intimate friend, Serjeant Talfourd, to obtain improvements in the copyright 6

Preston to Lieber, April 30, 1840, in Lieber Papers quoted by Friedel in Huntington Library Quarterly, 203. 0 Preston to Lieber quoted in Walter Pforzheimer, "Copyright and Scholarship," English Institute Annual (1941), 190. "' Friedel, op. cit., p. 189 and Messages and Papers of the Presidents, IV, 150.

59

In reference to the article itself, it did, by repeating this statement, hurt my feelings excessively; and is, in this respect, I still conceive, most unworthy of its author. I am at a loss to divine who ils author is. I know he read in some cut-throat American paper this and other monstrous statements. . . . And though I care very little for the opinion of a person who will set the statement of an American editor (almost invariably an atrocious scoundrel) against my character and conduct, such as they may be; still my sense of justice does revolt from this most cavalier and careless exhibition of me to a whole people, as a traveller under false pretences, and a disappointed intriguer. 11 Whether or not this was a motive, and regardless of what were the 8 Mamie Dickens (ed.), The Letters of Charles Dickens (London: Macmillan & Co., n.d.), p. 11. "Edgar Johnson, Charles Dickens (New York: Simon & Schuster, 1952), I, 212. M Knickerbocker Magazine, XV (1840), 520.

"Dickens to Macvey Napier, editor of the Edinburgh 1842, in Dickens, Letters, 86.

Review,

Jan. 21,

60


The Movement Before the\ Civil War

motives for his visit,12 once here Dickens repeatedly and boldly advocated international copyright, and engaged actively in schemes to promote passage of a federal law to this effect. Charles and Kate Dickens arrived in Boston harbor on January 22, 1842. The receptions, ovations, banquets and general admiration which they received in Boston and the other cities of their tour were the spontaneous tributes of thousands of American admirers of "Boz." From the President down to the least citizen, everyone desired to see or meet one of the nation's idols. Outside of the general fatigue, constant lack of privacy, and a brief brush with slavery in the South, only one jarring note intruded upon what was practically a triumphal procession through America and Canada. From the very first, the issue of piracy and copyright threatened to mar every joyous occasion. Dickens arrived on a Saturday, and copyright was first mentioned the following Monday. Oddly enough, it was not Dickens that brought up the subject, but an American.

precisely the same ideas of justice and national interest used by advocates in the United States:

Among the festivities planned for Boston's celebrations in honor of Dickens was a sketch entitled, Bos: a Masque Phrenologic, by the celebrated comedian, Joe Field.13 The skit made Boz say: Besides Fm told they'd rather read me there, For nothing, too! Yet not for that I care: Although, no doubt, their authors would delight To see me paid, so get themselves "right:" But pshaw! I must not quarrel with the "Trade," In golden smiles more richly am I paid; Dickens did not mention the subject himself till the first day of February, the date of the great public subscription dinner in his honor. He could have chosen no better, or worse, time. In the presence of the most distinguished citizens of Boston, Dickens concluded his speech with a few words on copyright. He brought out 13

W. C. Desmond Pacey, "Washington Irving and Charles Dickens," American Literature, XVI (1944-45), 332-339, claims that a prominent motive was to visit Irving. 13 Johnson, op. cit., I, 367. Johnson offers the opinion that this may have given Dickens the idea of saying something about copyright, since the Americans brought it up first.

61

I hope the time is not far distant \jvhen they [authors], in America, will receive of right some substantial profit and, return in England from their labours; and when we, in England, shall receive some substantial profit and return for ours. . . . There must be I an international arrangement in this great respect. . . . It becomes the character of a great country; first, because it is justice; secondly, because without it you cb.n never have, and keep, a literature of your own.14 Later, during the entertainment which followed the banquet, Joe Field sang a comic song with the lines: : Just think of all of yours, Boz, Devoured by them already; Avoid their greedy lures, Boz, Their appetites is steady; . For years they've been a-feasting, Boz, Nor paid for their repast ;15 No one else made any mention of piracy or copyright. Dickens repeated similar sentiments in Hartford and New York. Soon he drew upon his head quite a bit c f criticism. The idealists felt that there was something indelicate iiii the theme; some felt it in poor taste to mention such sordid matters at affairs having no purpose except to honor the author; somd would have agreed with Chesterton's remark that "a beautiful young dreamer, with flowing brown hair, ought not even to be; conscious of copyright. " 1 6 Dickens did not ask whether or not j the matter was delicate or polite, but whether it was just. Boz can serve, quite unconsciously, as an example of a new phenomenon. It was then little understood that the writer was not only an artist but also an "economic man." The nineteenth century • '* Ibid., p. 375. iS Ibid., p. 377. 10 Gilbert K. Chesterton, Charles Dickens (London: Methuen & Co., Ltd., 1925), 15th ed., p. 142.

62


still clung to the older idea of the gentleman-amateur exhibiting his talents for his equals or for noble patronage, seeking fame, perhaps, but hardly sordid lucre. Among the realities of the emerging democratic, industrial society of America this attitude was an anachronism. Books were articles of commerce, and authors were brand names. Some publishers realized this, for Harper said: Consider what a book is to a publisher. It is so much pork,, cotton and corn. If your book is the best poetry that has ever been written in the century, it will not pay you nor the publisher to print it.17 Dickens, of course, was interested in copyright as a matter of personal consideration because of his well-known losses. He was even more interested in the moral issue of honesty and justice, as he conceived it. The aspect of Dickens as a worker for social reforms has largely been lost in the brilliance of his literary accomplishments, but he devoted much time and energy to a variety of projects, including national and international copyright. Aroused by the violent criticisms and as if to emphasize that he could not be gagged, Dickens went out of his way to 'advocate copyright. The remarks in Boston were rather mild and in the nature of obiter dicta among expressions of gratitude for his cordial reception and praises for the ideals of America. But in Hartford, on February 8, he told his audience that he had made a compact with himself, that while he was in America he would omit no opportunity of referring to the subject.18 On this occasion, he practically accused America of helping to cause the death of Sir Walter Scott through lack of a decent copyright law. He waxed eloquent over the lack of a single grateful dollar, to buy a garland for Scott's grave.19 Dickens became very perturbed as time went on. In a letter home, he remarked: I vow before high heaven that my blood boils at these enormities [piracies] so that when I speak of them I w 18

J. H. Harper, The House of Harper (New York: Harper, 1912), p. 153.

Johnson, op. tit., I, 381. "Ibid.


63

seem to grow twenty feet high, and to swell out in proportion. "Robbers that ye are," 20 I think to myself when I get upon my legs, "here goes !" ; In New York City, on the occasion bf the Dickens Dinner of February 18, his friends tried to dissuade him from mentioning the topic, but Dickens seemed adamant. Deciding to make the best of what might be a very awkward situation, the committee in charge of the dinner decided to suppojl him. In the course of the many speeches, Washington Irving proposed the toast: International Copyright—it is but fair that those who have laurels for their brows should be permitted to browse on their laurels.21 Cornelius Mathews rose and replied with a speech in favor of international copyright. It is doubtful if ithis address had any appreciable effect, for it was late in the evpning and the guests displayed "palpable inattention," wandering] around and talking during the speech.22 Mathews emphasized the effects of copyright revision upon American authors and literature, and defended the right of Dickens to speak on the subject. For some unknown reason, Dickens respectfully declined to speak at all that evening.23 Mention of Cornelius Mathews provides an opportunity to discuss briefly two points to copyright, which were reflected in this person, known as "The Centurion." They are, first, the division among the authors of America, all of jwhom might have been supposed to be united on a question so often proclaimed to be of importance for them, and, secondly, the nature, value and form of the distinctively American literature which it was supposed 20

Dickens to Harry Austen, May 1, 1842, quoted in Dickens, Letters, 67.

One wonders if his blood also boiled when,1 in order to fill out a volume of the Pickwick Papers, Dickens pirated a part of Charcoal Sketches by the Philadelphian, Joseph C. Neal. Cf. Qarence Gohdes, American Literature in Nineteenth Century England (New Y o r k : Columbia University Press, 1944), p. 81. 21 Pforzheimer, loc. cit., 191. M "International Copyright," Knickerbocker, X I X (1842), 384. Îbid.

64


The Movement Before the'vCivil War

would arise once a copyright law damned the flow of foreign works. Despite signatures on petitions, the authors of America in the period before the Civil War were not united in their attitude toward revision of the existing statute. Dickens, for one, complained of their silence and indifference.24 Perhaps he was a bit unfair, for there were at least two sides to the issue, and the questions that divided them were more complex than Dickens could know. The New York literati, then leaders of the nation, were badly divided among themselves, lacking all semblance of even the literary cohesion which marked the Boston or Concord groups, as well as the community of taste and purposes evident in Charleston.25 Lewis Gaylord Clark of the Knickerbocker, literary arbiter of one group, led his forces in a decade-long battle with Cornelius Mathews and the members of Duyckinck's Tetracty's Club,2{i soon nicknamed "Young America." It was more than a question of literary criticism, for the groups clashed on politics (Whig v. Democrat), on social issues, and concepts of society. Copyright was merely a facet, reflecting the general division.

exteriorly to the fashions which prevailed.28 Mathews must have been one of those hapless souls who have the ability to make everyone they meet hate him. All too many of j his contemporaries were willing to drop their personal quarrels to battle against him. The cause of international copyright may halve been hurt more than helped by the support of such a man. The editor of the Knickerbocker said exactly that.29 Yet Mathews took up the cause wholeheartedly. The occasion of his first public mention has already been noted. The timing was excellent, so much so that he has been jaccused of adopting the cause only after he was certain that it would give him notoriety.30 Giving only passing reference to theories |of property or to the injustices perpetrated upon unrenumerated Englishmen, Mathews concentrated on the benefits to be expected in America from the passage of a new copyright law. He thought they would be two: first, the purification of literary criticism, and, second, the opportunity for American genius to generate its own literature. The very need for such a literature, jlet alone its form, was disputed. "Young America" itself had not really faced the question, and could not state definitely what it stood for. Derisive critics continued to ask in what it would consist, and specifically what would constitute American literature. Wcrse than that, they held up false representations of what would happen. It seemed to his opponents that Mathews was trying to Iiilnit writers to American subjects. They came out strongly for the universality of literature, claiming that this had nothing to do with nationalism. Yet, they were nationalistic, too; the Knickerbocker magazine had an announced policy of promoting a national literature, and its editor, Louis Gaylord Clark, celebrated Irving, Longfellow and Cooper as refutations of a "maudlin patriotism which would confine authors to the country of their birth." 31 Lowell was opposed to a "national" literature, stating:

Cornelius Mathews was a young New York lawyer, who, after being admitted to the Tetracty's Club, had decided to devote his life to literary pursuits. He soon conceived a passionate belief in native American literary genius, and led the Club forth upon a search for the proper form of this sorely-needed literature. He constantly dinned in the ears of all who would listen to him the need for literature which would be specifically American. An international copyright law was, in his thinking, a necessary prerequisite for his primary purpose. Unfortunately, "The Centurion" excited among his contemporaries, "a frenzy of loathing beyond the limits of rationality."27 Even his friend Simms, who said he admired and respected him immensely, complained that Mathews was "perverse," and "too independent in mood," and wished that he would at least conform M

Johnson, op. cit., I, 380. ^Vernon L. Partington, Main- Currents in. American Thought (New York: Harcourt, Brace & Co., 1927), II, 175. w "Evert Duyckinck," D.A.B., IV, 137. 27 Perry Miller, The Raven and the Whale (New York: Harcourt, Brace and Co., 1956), p. 80.

65

Any literature, in so far as it is national, is diseased, inasmuch as it appeals to some climatic peculiarity, 23 Mary C. Simms Oliphant et al. (eds.), The Letters of William GUmore Simms (Columbia, S. C.: University of South Carolina Press, 1952), I, 438. M "International Copyright," Knickerbocker, XIX (1842), 385. 80 Miller, op. cit., p. 95. st Jbid., p. 99, and "Lewis Gaylord Clark," D.A.B., IV, 137.

66


The Movement Before the\ Civil War

rather than to the universal nature. . . . No great literature has ever been purely national; why should we not claim our share in England's? 32

complex and very bitter. All patriotic Americans of good will were divided over the "Americanism" of "Young America." Professor Perry Miller says that the situation defies rational analysis.36 To be entirely fair, we must note tha|t opposition to Mathews and division over literary matters did riot necessarily imply opposition to international copyright. Louis Gaylord Clark supported copyright, on the basis of property ri^ht, rather than literary merits, yet he was Mathews' most bitter enemy. George Bancroft, who was Mathews' friend and political ally, opposed copyright, declaring that there could be exclusive right to intellectual creations:

Yet, in the very first issue of his magazine, The Pioneer, Lowell boasted that he would draw chiefly on the original works of American authors in an effort to promote national literature.33 It was a very confusing situation. The confusion was compounded by the fact that many literati were half convinced that America might not be able to produce its own distinctive literature. There was an apologetical and wistful tone to nineteenth century American literary criticism, because the United States had no ivied battlements, no haunted Parnassus, nor Gothic castles. Admiration for such legendary scenery was all too evident, and a people hungry for epics and tragedy looked for cisatlantic satisfaction.34 Almost too defensively, Emerson said in 1824: It is admitted that we have none [literature], but we have what is better. We have a government and "a national spirit that is better than poems or histories. . " .33 The national spirit would eventually create a national literature, but this was not so evident in the 1830's and 1840's. The Knickerbocker school went hunting in the legends of our Dutch past; the New England Transcendentalists sought the animating genius. But snobs, conservatives and Anglophiles ruled the literary roost. American literature was dominated by Irving, Bryant, and Cooper. All three were remote, inaccessible, and already legendary in the 1840's. America admired them, but was frustrated by them. What else could one do but imitate them? What other form could our literary genius take ? No one knew the answers to these questions, and the controversy aroused in an effort to settle them was most

Every form, to which the hands of the artist have ever given birth, sprung first into being as a conception of his mind, from a natural faculty, which belongs not to the artist exclusively, but to man. . . : Mind becomes universal property; the poem that is published in England, finds its response on the shores of; Lake Erie and the banks of the Mississippi. . . .37 Similarly, the Democratic Review was friendly to the "Young America" group, but consistently opposed to copyright on the grounds of free trade. 38 Faction contendec! with other factions, and both within their own factions. The issue was most confused, and it is no wonder that Dickens despaired. The incident at the Dickens Dinner was ignored by the New York papers with the notable exception of Horace Greeley's New York Tribune. Greeley had already comfe to Dickens' defense in an editorial on February 14, 1842, where he said: We trust he will not be deterred from speaking the frank, round truth by any mistaken courtesy, diffidence, or misapprehension of public sentiment. He ought to speak out on this matter, for who shall protest against robbery if those who are robbed: may not? Do we look well offering him toasts, compliments and other syllabub while we refuse him naked justice?

af>

Ibid., 256, and 115. ^"Prospectus," The Pioneer, I (1843), i. on page one the strictures against national literature. ** Benjamin T. Spencer, "The Smiling Aspects of Life and a National American Literature," English Institute Annual (1949), p. 127. Îbid., 118.

67

88

Miller, op. tit., p. 186. George Bancroft, Literary and Historical Miscellanies (New York: Harper & Brothers, 1855), 412, 427. 39 Miller, op. cit., 99. OT


The Movement Before the. \Civil War

The morning after the dinner, the Tribune printed the full text of Mathews' speech (much longer than the spoken version), and supported it with another editorial. Greeley urged Americans to do something, specifically to put their names to a petition for international copyright.. The idea of a petition had also occurred to Dickens. In a letter to his friend, William Forster, on February 24, 1842, Dickens requested him to obtain a short letter signed by the leading authors of Great Britain supporting his pleas for copyright. This he proposed to publish in the leading papers, and he was sure that. Senator Henry Clay would see to it that the petition was brought to the attention of Congress, for the Senator had once again introduced his bill.39 Dickens shortly received a letter signed by twelve distinguished authors, including Lord Bulwer, Lord Tennyson, Serjeant Talfourd, and Sidney Smith. He also received an additional note from Thomas Carlyle which was a discourse upon the Commandment "Thou shalt not steal" as applied to books. Dickens promptly had them published in leading papers early in May 1842. For some unknown reason, the letters were never presented to

against the passage of any international copyright law. Like others before them, the booksellers pointed out | that the employment of more than 160,000 people, as well as the millions of dollars invested in the book trade, were at stake. The same day, Representative Toland of Pennsylvania presented tivo similar memorials of citizens of Philadelphia engaged in printing and selling books.4ri The Senate printed part of the memorial; the House did not. Neither Senate nor House acted further on them. Dickens left America on June 7, 1842, jwithout having a chance to do anything further for copyright, or to see the final effect of his efforts. He was, however, astute enough to realize that there was Httle likelihood of anything's being accomplished. He summed up the situation in a letter which bitterly assailed the deceit, vanity and materialism of America:

68

Congress. Senator Clay, however, had presented to Congress on March 30, a petition signed by twenty-five American authors.40 It was referred to the Committee on the Judiciary, and died there. The identical petition had been presented to the House a few days earlier, and had suffered the same fate.41 This flurry of activity, and the publicity given to Dickens, roused a few of the opponents of copyright to similar action. A convention of booksellers, meeting in Boston, memorialized Congress. Senator Buchanan presented their plea to Congress on June 13, 1842.42 The petition requested an increase in the duty on foreign books, and protested 38

This was Clay's last effort, previously mentioned in Chapter II, p. 54. *°U. S. Congress, Senate, Journal of the Senate, 27th Cong., 2d Sess., 1841, 256. •"U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 1841, 531. * a U. S. Congress, Journal of the Senate, 27th Cong., 2d Sess., 1841, 394. One of the firms, T. & J. W. Johnson, made a specialty of printing a complete line of English law books.

69

I'll tell you what the two obstacles are to the passage of an international copyright law with England: firstly, the national love of "doing" a man in any bargain or matter of business; secondly, the rational vanity. . . . The Americans read him [the English author]; the free enlightened, independent Americans; and what more would he have? Here's reward enough for any man.44 The sentiment thus expressed reflected the! gradual disillusionment and disappointment which Dickens experienced as his stay in the United States drew to a close. In spite of; many new friends, and much he could praise, Dickens had not found the ideal republic he had, a bit naively, expected. For some time, he could not speak of America with his old enthusiasm., As for copyright, he said in 1842: I should add that I have no hope of the. States doing justice in this respect, and therefore do not expect to overtake those fellows [dishonest publishers]; but we may cry "Stop thief" nevertheless, especially as they wince and smart under it.45 ** U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 951. " D i c k e n s to Forster, quoted in Johnson, op. cit., 421. 45 Dickens to Miss Pardoe, July 19, 1942, in Dickens (ed.), Letters, p. 70.

70

The Movement

Before

the Civil

The Movement

War

Twenty years later he could say the s a m e : I do not believe there is the slightest chance of an international copyright law being passed in America for a long time t o come. 46 H e was correct, but Dickens had stirred u p the advocates of copyright, and after his departure, they returned to the fray with renewed interest. Another association, was the result. T h i s time it w a s called the American Copyright Club. T h e purpose of the Club was to try to unite the hitherto scattered efforts for copyright revision. Its first officers, elected in 1843, w e r e : President, William Cullen B r y a n t ; Vice President, Guilan G. Verplanck ;47 Corresponding Secretary, Cornelius M a t h e w s ; Recording Secretary, E v e r t Duyckinck; and Treasurer, Alexander W . Bradford. 4 8 T h e Executive Committee had five members, Charles F e n n o Hoffman, Charles Briggs, P a r k e Goodman, John Keese, and H . J. Raymond. 4 9 T h e Club had a core of about twenty-five men, chiefly well-known members of the New Y o r k literati, and about 125 "associate members" including every prominent author of the day, as well as a few well-known outsiders. T h e associate members generally gave no more support to the cause than to allow the use of their names.

Before

the Civil War

71

T h e presence of H e n r y Jarvis Raymond on the Executive Committee, and the fact that Wesley H a r p e r was a member of the Club, demand explanation. Raymond had been editor of one of the most notorious of the pirating magazines, Harper's, and the presence of one of the H a r p e r brothers in a Club devoted to revision of a law from which they profited immensely is, at first sight, rather odd. Wesley H a r p e r was the firm's correspondent, and the most popular member of the family. 50 Both w^re charter members of the Copyright Club. T h e presence of an Varch-enemy" 01 of copyright and his managing editor was explained by P u t n a m : T h e H a r p e r s were, from an early date, members of the publishers' association, but they; were usually able by some difference of opinion at the: critical moment t o emphasize that, however desirable in! itself international copyright might be, "the particular measure" that had at that time been put into shape was not going to be satisfactory. 52 Evidently the H a r p e r s found it convenient to infiltrate the organizations of the opposite side. T h e American Copyright Club, as far as is known, limited its action to the publication of An Address to rhe People of the United States in Behalf of the American Copyright Club.BZ A Committee composed of Bryant, Mathews and Francijs L. Hawks 6 4 wrote the

w

Dickens to Mr. Serle, July 29, 1868, ibid., p. 694. *' Gulian Verplanck was a New York Congressman, Chairman, of the Ways and Means Committee from 1831 to 1833. He had been instrumental in securing the passages of the copyright law of 1831. Verplanck was popular among the New York literati, and co-editor of The Talisman, with William C. Bryant. Cf. D.A.B., XIX, 253. 48 Alexander Bradford was a New York lawyer, corporation counsel and Surrogate of New York City. He was interested in systematic codification of New York law. During the 1840's he served as co-editor of the Protestant Churchman. Cf. D.A.B., II, 551. w Henry Raymond is well known as the co-founder of the New York Times. He had been chief assistant to Horace Greeley on the Tribune, and managing editor of Harper's Weekly. His brief political career included several terms in the New York State legislature, including a term as Speaker in 1851. Cf. Elmer Davis, History of the Hew York Times (New York: The New York Times, 1921), Chap. I, which details an account of Raymond.

TO

Harper, op. cit., 315. It seems that Wesley Harper was physically weak and of pious mien. His mother had destined him for the Methodist ministry, but he entered the firm like the rest of the family, and was more than usually successful despite his weak personality. His brother seems to imply that Wesley was very shrewd and able to ôbtain results where the other failed. 61 Harriet Martineau in a letter written jri J 843 spoke of "our arch-enemy, the firm of Harpers of New York." The letter is in the possession of and quoted by Pforzheimer, loc. cit., 190. i 6S George Haven Putnam, George Palmer Putnam: A Memoir (New York: G. P. Putnam's Sons, 1912), p. 367.' 63 American Copyright Club, An Address of the People of the United States in Behalf of the American Copyright Club (New York: The Club, 1843), 20 p. "Francis L. Hawks was a New York lawyer and Episcopalian minister. He served as pastor of several New York City Churches and became a friend


The Movement Before the 'Civil War

address, which was published in 1843. The document was a lofty and sentimental appeal to the American people, aimed to call them to the performance of their duty. While the usual arguments are repeated, the Address did not dwell on the philosophy of property or the claims of justice, as much as it appealed to other high ideals. The effect of publication cannot be known for certain. While it undoubtedly helped to publicize copyright, one doubts if it had any effect on the opponents who considered books as so much "pork, cotton and corn," or if many readers and subscribers were led to support the movement by its organization. Then, as now, most people purchased a book or a magazine to be informed'or amused; they do not operate on principle, and trouble themselves very little over copyright.

cussion.58 Poe's biographer feels that there is some evidence that anonymous articles on international copyright, which appeared in The Edinburgh Review and Blackwood's Magazine, were the work of Poe.59 In the South, William Gilmore Simms, also an associate member of the Club, took up the copyright question. He may have been moved tQ enter the battle by the fact that he was intensely devoted to Bryant, and because he himself specialized in depicting typically American scenes of the southern border, just as Cooper did for the North. 60 Charleston was the center 6i intellectual life in the South, and the Southern Literary Messenger (sometimes styled the Southern Literary Review) gave it a forum and a focus. In 1844 Simms wrote a series of letters in the Messenger which discussed every angle of copyright.61 He canvassed his friends for signatures to the various copyright petitions, and his correspondence contained frequent mention of the problem.62 A letter of October 27, 1843, to George Frederick Holmes contained a brief statement of the importance of copyright in Simms' mind:

72

After publication of the Address, the Club seems to have declined rapidly. Enthusiasm died out rapidly, and it did nothing more about copyright. The cause of the decline was the displeasure of the members over the "monkeyshines of Cornelius Mathews." 55 According to Rufus Griswold, "monkeyshines" meant excessive provincialisms and the personal characteristics of Mathews -already mentioned.56 The fate of the Club illustrated what Louis Gaylord Clark meant when he said that Mathews might do more harm than good for the causes he advocated. Even if the Club did nothing more, individual members and associates were active at this time. Edgar Allan Poe, an associate member, became interested in copyright and devoted some time to studying its legal aspects.57 He discussed the possibility of copyrighted English publication of his works with Dickens, and the issue of international copyright naturally entered into the disof Evert Duyckinck. Hawks specialized in church history, wrote several books on that subject, and became the first President of the University of Louisiana. H e also served as co-editor if Appleton's Cyclopedia of Biography, and for a time as editor of the New York Review. Cf. D.A.B., V I I I , 416-417. M J o y Bayless, Rufus Wilmot Griswold (Nashville, Tenn.: Vanderbilt University Press, 1943), pp. 84, 93, 118. ™Md.,v. 92. 6T Hervey Allen, Israjel, the Life and Times of Edgar Allan Poe (New Y o r k : F a r r a r & Rinehart, Inc., 1934), p. 402 ff.

73

. . . and the attainment of a proper copyright law is one of the necessary agents in bringing about the awakening of the American public to the importance of a national literature. 63 That Simms well understood the difficulties involved and the im™Ibid., 424. Allen points out that Poe had been so hurt by foreign competition that he could secure publication for his work only by waiving royalties. Poe is another example of the influence of copyright inadequacy on the form of literature. H e turned from novels to short stories, not because he admired the short story, but because no other form would pay. Cf. 403 ff. "Ibid., 522. [ 00 Van Wyck Brooks and Otto L. Bettmann, Our Literary Heritage (New Y o r k : E. P. Dutton & Co., 1956), p. 28. j 61 William Gilmore Simms, "International; Copyright," Southern Literary Messenger X (Jan. 1844), 7-17; and under the same title X (Mar. 1844), 1 3 7 4 5 1 : X (June 1844), 340-349: X (Aug. 1844), 449-469. Simms was rather proud of his articles and made frequent mention of them in his many letters. M 01iphant (ed.), Letters, 1, passim. n Simms to Holmes, Oct. 27, 1843, in Letters, I, 378.



probability of getting Congress to do anything can be seen from a letter to James Fenimore Cooper the following year:

termination not to mingle with anything in the country more than I can help.66

74

I have no hope that Congress will do anything in the matter [copyright]. There are some stupid prejudices to be overcome. The notion of the half-witted fellows from the West is that this is a favor to the English. . . . But the real difficulty is in the indifference of the people to the whole subject, and Congress is a body that dares not act, until it has been instructed by popular legislation.6* Mention of Cooper brings to mind his refusal to join the Copyright Club. This was a serious blow to those who emphasized the value of copyright protection for a distinctively American literature. With Irving and Bryant, James Fenimore Cooper had done more than anyone to create a distinctively American literature. Centered upon the forest triangle above the junction of the Mohawk and Hudson Rivers, the "Leather-Stocking" tales brought the freshness of border life to civilized Americans in the new cities. The Deerslayer, the Pathfinder and Leatherstocking were all one and the same—the honorable fearless, free, humble and grand American borderer.85 Oddly enough, Cooper wrote most of the American stories while abroad in Paris, Florence, Rome and Dresden. His works were praised by the great European critics, and influenced more than one generation on both continents. Perhaps years spent abroad, and years spent in splendid isolation on the great Cooper estate of Otsego Hall, influenced Cooper's decision to stay clear of the movement. His own words are not too clear. He accepted the principle: . . . that this country, in common with all other countries, is bound to protect literary property, on principles connected with common honesty. . . . Unless we have a copyright law, there will be no such thing as American literature in a year or two. [But he expressed his] de°* Simms to Cooper, April 10, 1844, in Letters V, 380. Simms seemed to have been one of the few "associate members" of the Club who was really interested enough in copyright to work for it. ra Brooks and Betteman, op. cit., p. 19.

75

That Cooper said he would join the Copyright Club if he joined anything did not help much; he still remained aloof. Other well-known authors seemed reluctant to speak out on the question with any great zeal. They might have been willing to put their names to a petition, but few went any further. Dickens, for one, could not understand this, and he complained: The notion that I, a man alone in America, should venture to suggest to the Americans that there was one point on which they were neither just to their own countrymen nor to us, actually struck the boldest dumb! They were Washington Irving, Prescott, Bryant, Halleck, Dana—all of them devoted to the question, and no one dared to raise his voice and complain of the atrocious state of the law.67 It was not quite fair to include Bryant ill the list, for as editor of the New York Evening Post he took a strong stand in favor of international copyright. Like so many others, Bryant had both a personal and an altruistic motive for supporting the movement. He editorialized on the matter, and loaned the pages of his paper to the advocates of copyright. He was always willing to preside at a dinner, or to accept the Presidency |of something like the Copyright Club. His prestige helped the movement, and his name among petitioners to Congress must have impressed readers and aided in bringing the matter to the attention of the public. This in itself, was no small contribution, for many, like Simms, were coming to believe that a campaign for popular education of the whole subject of copyright would be the only way to bring Congress to act. Certainly Congress would not act in the 1840's. The fifth and final presentation of the Clay Bill and its fate have already been 88

John H. Kourvenhaven, "Cooper and The American Copyright Club: An Unpublished Letter, American Literature, XIII (1941), 265. The letter was written to Cornelius Mathews, Sept. 25, .1843. "Johnson, op. cit, I, 380.

76


The Movement Before the- Civil War

noted. The chief activity during this decade was the offering of the above-mentioned petitions. Although the Irving petition stirred the House of Representatives to empower a select committee, composed of John P. Kennedy, Robert C. Winthrop, John H. Brockaway, John McKeon and Benjamin G. Shield, to consider the propriety of amendments generally in the existing laws of copyright,68 there is no further mention of the petition or the work of the committee in the Journal of the House.

Charles Sumner presented with the comment that he united himself with the petitioners. James Fenimore Cooper had signed it, as had Herman Melville, William Cullen Bryant, George Palmer Putnam, Washington Irving, Francis Li Hawks, Bayard Taylor, and John Jay. All the petitions suffered the same fate; the pattern of action is identical. The petition was presented, then referred to some committee, and nothing more was ever heard thereafter. The opponents of international copyright may have fired a more effective barrage of opposing petitions. jDuring the same period, eighteen petitions against international copyright were presented to Congress. A typical one was that of Sherman & Johnson of Philadelphia, presented to both Senate and House on June 13, 1842. The firm was very frank:

The next petition came from a new source. On December 15, 1843, Choate presented to the Senate a memorial from ninety-seven publishers, printers, booksellers and binders, praying the passage of an international copyright law.69 George Palmer Putnam had drafted the document, and secured the signatures. The signatories included such notables as D. Appleton & Co., of New York; George S. Appleton of Philadelphia; Ticknor & Co.; Lippincott, Bartlett & Walford; John S. Taylor & Co.; T. H. Carter & Co.; A. S. Barnes & Co., and a host of minor firms.70 Unfortunately, other important and well-known firms, particularly Harpers, were not represented. This time the Senate sent the petition to the Committee on Printing. On December 16 John Quincy Adams presented the same petition to the House, where it was referred to a select committee of Adams and eight others. 71 Nothing was ever heard of either petition again. The rather frustrating flow went on. Every few years the advocates of copyright presented another petition. On March 22, 1848, John Jay and William Cullen Bryant presented one to the House of Representatives.72 Three years later, the American Medical Association presented one to the Senate.73 A year later Irving presented another one to the Senate.74 This one Senator " U . S. Congress, Journal of the House of Representatives, 27th Cong., 3d Sess., 64. 00 U. S. Congress, Journal of the Senate, 28th Cong., 1st Sess., 1844, 30. "Putnam, op. cit., p. 166. 7L U. S. Congress, Journal of Ike House of Representatives, 28th Cong., 1st Sess., 1844, 58. ™Ibid., 30th Cong., 1st Sess., 595. ra U. S. Congress, Journal of the Senate, 31st Cong., 2d Sess., 137. ™ Ibid., 32nd Cong., 1st Sess., 535.

77

All the riches of English literature are ours. English authorship comes to us as free as the vital air, untaxed, unhindered, even by the necessity; of translation, into the country; and the question is, Shall we tax it, and thus impose a barrier to the circulation; of intellectual and moral light? Shall we build up a dam, to obstruct the flow of the rivers of knowledge?75 This was the firm, mentioned above, which put out a "Law Library" series containing not a single book by an American author.76 Like the petitions on the other side, theirs, and those of the rest of the opponents, ended up on| the table with nothing further done. Still, this was precisely whjat this type of petitioner desired, and in that respect, their petitions can be said to have succeeded. All but two of the petitions between 1842 and 1860 concerned the negotiations for a reciprocal copyright treaty with England. Why so few petitions against the revision of our own federal law of copyright were presented can only be conjectured. It seems most likely that opponents of revision realized that activity was hardly necessary. At least this was Biryant's opinion. He felt that the indifference of Congressmen was the major obstacle, observing TO U. S. Congress, Public Documents Printed by order of the Senate, 27th Cong., 2d Sess., Vol. IV, No. 323. w Thorvald Solberg, "International Copyright in the Congress of the United States," Library Journal, XI (1886), 257.



that they did not even try to understand the problem and yawned whenever it was broached. Preoccupation with other matters was also an obstacle. George Putnam favored this explanation, stating that his experience showed that whenever international copyright had been before Congress, some other topic of more pressing interest stole the attention of Congressmen. He felt the matter had never really been discussed:

seem to limit the validity of Putnam's j explanation, though lack of time for all its wants to do, or all that should be done, is always a problem for Congress. One last effort to secure international copyright took place before the Civil War intervened to place a moratorium on such efforts. This was the attempt to secure a | treaty or convention with Great Britain covering at least the Essential matter of equal reciprocity, necessary to stop the most flagrant piracies. We have already seen how every effort in Congress between 1836 and the Civil War had failed. Meanwhile, the situation in the book trade not only had not improved, or even remained static, but had grown worse. "The game" was now practiced on an even greater scale. Publication of novels alone had tripled between 1830 and 1840.84 In the late i820's Carey & Hart might have published a pirated edition of Scott as large as 9,000; in 1840 Bulwer-Lytton could calculate conservatively that his Zanoni had reached 30,000 Americans.85 By 1843, when Dickens' American Notes was published, 50,000 copies were sold in three days. As the book trade expanded and the technology of publishing improved, so did piracy grow. It was during this period that periodicals first entered "the game" on a large scale. They enjoyed the advantages of fewer problems of format, and no worry at all about binding. Two types of periodical engaged in piracy. The popular monthly magazines, such as Harper's Monthly, which Fletcher Harper set up in June 1850, existed almost entirely on "appropriated" material. Harper's Monthly enjoyed phenomenal success, selling 7,500 of its first number and gradually developing a circulation of 200,000 by I860.86 The material cost not a penny! Of course, Harper Brothers were not alone in this type of venture; there were many, many others. Along with them, the large, city newspapers soon found that it was profitable to print a whole novel in a gigantic "extra" which would sell for approximately a dime. Both were greedy for foreign material, and helped to increase the prevalence of piracy.

78

It has unfortunately happened that whenever the subject of International Copyright has been introduced into Congress, there has been some other topic of more immediate interest to engross the attention of the Members, and therefore it has never been broadly or freely discussed either in the House or in the Senate.77 Putnam specifically mentioned that the exciting Oregon boundary disputes interfered with the movement in the 1840's. Certainly that and the Mexican War, the consequent territorial expansion and the growing slavery controversy, must all have operated to hinder somewhat. Against this, however, we must note that Congress found time to pass four private copyright bills for the relief of Mrs. Henry Schoolcraft for her work, History, Statistics, Conditions and Prospects of the Indian Tribes of the United States,76 of Thomas H. Sumner and his work describing a new method for ascertaining the position of a ship at sea/ 8 of Levi H. Corson and his perpetual calendar,80 and of John Rowlett and his book of interest tables.81 Congress also approved a general revision of the domestic copyright acts,82 and extended copyright protection to photographs and photographic negatives.83 These events would 77

Putnam, op. cit., p. 335. U. S. Congress, Journal of the Senate, 35th Cong., 2d Sess., 1858, 117, 180, 183, 207, and Journal of the House of Representatives, ibid., 243, 356. n Ibid., 33rd Cong., 1st Sess., 1854, Senate, 607, 608, and H. R. 1241, 1246, 1269. 80 Ibid., 30th Cong., 2d Sess., Senate, 200, 230, 233 and H. R. 414, 464, 470. a Ibid., 27th Cong., 3rd Sess., Senate, 268, 276, 287 and H. R. 520, 536, 553. 82 II U. S. Stat, at Large, 138 (1865). 83 13 U. S. Stat, at Large 540 (1865). During this period Congress also discussed the creation of the Smithsonian Institution from February 28 to August 10, 1846, and spent some time on details of the deposit of copyrighted books and the records of copyright material. 78

79

"* James D. Hart, The Popular Book (New York: Oxford University Press, 1950), p. 90. 83

39

Ibid., p. 79. Miller, op. cit., p. 314.

80



While the most important centers of literary production and printing, and hence of piracy, were undoubtedly the great cities of New England and the Atlantic seaboard, the small-town printer and publisher deserves mention. There were innumerable smaller cities and towns throughout the nation where active publishing was carried on. Out of contact with the literati, the small-town publisher depended very largely on reprints of both English and American authors. While not on a very large scale, his work was important to the local inhabitants, and taken together with the sum of total of his fellow printers all over the land added appreciably to the amount and extent of piracy.87

dent Fillmore interrogated Harpers on the advisability of negotiating such a treaty in a letter of August 9, 1852.92 The firm declined to offer any advice in the matter, let alone cooperate in the negotiations:

To combat the increase the advocates of copyright tried a change in tactics. The idea of a treaty was not new. As long ago as 1838 Lord Palmerston, Great Britain's Secretary of State for Foreign Affairs, had written to the United States Minister in London on the possibility of a treaty. No action had been taken on the proposal, though the House of Representatives had requested a copy of the correspondence,88 and President Tyler had complied with their request.88 Now in 1852, George Palmer Putnam revived the idea. England and France had just sighed exactly the type of reciprocal agreement, which would prohibit the most common form of English-American piracy.30 Acting upon suggestion, for which Putnam claims the honor of initiating,91 Presi-

After this answer, the whole matter was dropped. Putnam tried again in February of 1853. On February 15 five publishers, G. P. Putnam Co., D, Appleton & Co., Robert Carter & Bros., Scribners and Stanford & Swords, addressed a letter, drafted by George Putnam, to Secretary of State Edward Everett.94 It suggested a treaty with England, and outlined possible provisions. This time there were more fortunate results, but credit is due chiefly to Edward Everett, who was not without literary propensities and an interest in copyright.

^ H e l l m u t Lehmann-Haupt, The Book in America ( N e w Y o r k : R. R . Bowker Co., 1951), pp. 121 ff. There has been relatively little written upon the life and influence of the small-town publisher, perhaps because of the very numbers involved. 83 U. S. Congress, Journal of the House of Representatives, 27th Cong., 2d Sess., 1841, 672. There is no further mention in the Journal of any action on the correspondence. *" Ibid., 700 where the House noted the reception of a copy of the correspondence, which was referred to* the same committee which was considering the petition of Washington Irving. Evidently the correspondence died with the petition. 00 15 and 16 Victoria, c. 12. 01 Putnam, op. cit,, p. 165 ff. George Haven Putnam claims the honor for his father, but it is difficult to know for certain how much influence this had on Fillmore. Certainly, Putnam would never have suggested that the Harper Bros, have anything to do with the matter. Perhaps the President felt that the other side should be consulted before he did anything.

81

But although our experience and Observations have led us to form opinions more or less definite upon it, we have concluded, in consequence of oijir close relations with all the parties to be affected by i t . j. . to abstain from taking any steps to influence the action of our government in regard to it.83

Edward Everett was a Unitarian minister, who had had a most unusual combination of political and academic careers. At twenty he had .studied at Gottingen University in I Germany along with George Ticknor, and was the first American to receive the Doctorate in Philosophy from that university. jHe later lodged with Sparks and Longfellow at the famous Craigie: House, and circulated among the literati of New England.66 For a time he was editor of the -North American Review. Everett had been Governor of Massachusetts, and when Daniel Webster died, Everett succeeded him as Secretary of State for a brief four months.96 Contact with the leading literary figures of New England, as well as his own work, had given Everett an interest in the problem of international 98 M

Harper, op. cit., p. 107, quotes the very brief letter.

Harper Brothers to Filmore, August 23, 1852, quoted in ibid., pp. 107-108. w Putnam, op. cit., p . 167. 50 Brooks and Bettmann, op. cit., pp. 48, 50, 54, 85. 90 "Edward Everett," D.A.B., V I , 223-226.



copyright, and his name had headed the petition from Boston in 1838.97 Everett and George Putnam, were close friends, and the Secretary of State sought the help of his friend in drafting the treaty.88 He had found it to be difficult. Through John Crampton, the British Minister to America, Everett negotiated a convention, in spite of the fact that the Minister was personally opposed to the idea." The treaty was short and quite simple. It merely provided that authors entitled to copyright in one country should be entitled to it in the other country, on the same conditions and for the same length of time.100

United States, in order to obtain copyright under the treaty, was inserted, and President Pierce included this information in a message presenting the treaty to the Senate for a second time on February 23, 1854.104 Despite this, the treaty was tabled and no action was taken on it then or later. Indeed, no further action on international copyright troubled Congress until after the Civil War. Naturally, the attention of both legislators and constituents on. both sides of the question was directed toward the war. Of course, the piracies went on, and even enjoyed a certain war-time boom as works about soldiers and wars became popular. Les Miserables, for example, sold by the thousand in both North and South despite the scarcity of paper.105 Macaulay's History of England had been pirated by the thousands, but in 1861 was selling in the hundreds of thousands.106 "The game" was far from being over, but further struggles to control it had to wait till hostilities had ceased. Then the fight was taken up again.

82

President Fillmore sent the treaty to the Senate on February 18, 1853. In a short space of time, sixteen petitions against the Senate's advice and consent thereto were presented. Senator Buchanan of Pennsylvania and Representative Toland of Philadelphia presented most of the petitions,101 but others came from New York, Ohio, Michigan, Connecticut and Massachusetts.102 Some of the petitions were ordered to lie on the table, and some were referred to various committees. Evidently they were sufficient to obtain their desired purpose, for there was no vote taken on the treaty in that or subsequent sessions of Congress. Everett and Putnam were convinced that the major difficulty was the lack of a manufacturing clause in the treaty similar to the clause in the national copyright law. Many of the petitions were from manufacturers, who felt they would be hurt by the lack of such a provision. Therefore, the five New York publishers wrote another letter, urging Everett to add such a clause to the treaty.103 A provision to the effect that books must be manufactured in the M

Cf. Chap. II, p. 47. Putnam, op. tit., p. 167. 09 This information was volunteered by George Palmer Putnam in his account of the negotiations. Ibid. ^Richard Bowker* Copyright, Its History and Lam (Boston: Houghton, Mifflin Co., 1912), p. 347. 101 U. S. Congress, Journal of the Senate, 33rd Congress, 1st and 2nd Sess., 1853-54, passim, and Journal of the House, passim. ™Ibid., Senate, III, 225, 251, and passim. 103 Bowker, op. cit., p. 347 and Putnam, op. cit.r p. 168. M

83

"* Bowker, op. cit., p. 347. It is interesting to note that there is no mention of the treaty either as far as negotiations, provisions or consideration by the Senate in Hunter Miller (ed.), Trea'ies and Other International Acts of (he United States of America, William S. Holt, Treaties Defeated by the Senate, or Samuel Flagg Bemis, The American Secretaries of State and Their Diplomacy. 1M Hart, op. cit., p. 116. 100 Ibid., p. 117. I

The Movement After the Civil War to 1880

CHAPTER IV T H E MOVEMENT AFTER T H E CIVIL W A R TO

1880

During the Civil War period, 1860 to 1865, the private citizens who were interested in advocating international copyright did not engage in any noteworthy activity designed to secure a change in the federal law. Congress itself paid little attention to what must have been a very minor problem. It did, however, discuss some aspects of the domestic copyright situation, and passed the Act of 1865, which was a series of amendments to the existing laws.3 The Congress of the Confederate States of America passed, in 1861, its own copyright statute, which included provision for the protection of foreign authors. 2 Although the Confederacy was willing to enter into treaty arrangements with other nations on this subject, no conventions were ever concluded, since no nation recognized the Confederate States to this extent. It seems most likely that this action of the Confederate Congress was merely part of its general effort to secure the good will and assistance of other nations. Although it is an interesting sidelight, its example was not in any way effective on the United States. The Congress of the United States did pass laws during the Civil War which affected copyright indirectly, particularly the tariff acts. As already noted, books had not been singled out in the tariff enactments, but were treated along with the other general items subject to the varying rates which ranged between five and twelve per cent.3 During the Civil War Congress twice raised the general tariff rates in an attempt to secure needed revenue. The Tariff of 1864 placed a tax on imported books of twenty-five per cent ad valorem.4" It continued in force after the war was over. M4 Stat, at Large 540. a E . Merton Coulter, The Confederate States of America (Baton Rouge, La.: Louisiana State University Press, 1950), p. 508. 3 Donald Marquand Dozer, "The Tariff on Books," Mississippi Valley Historical Review, X X X V I (1949), 73. 'Ibid., 74.

84

85

During the tariff struggles which characterized the 1870's and 1880's the principal opposition to the tariff on books came from academic groups which wanted copies pf foreign works in order to keep abreast of the progress of science and learning abroad. They attacked the retention of such a high rate on books as a tax on the dissemination of knowledge.5 There was also some pressure from immigrants hungry for the literature of their homeland. The desire to retain some connection with jhe culture of their native i

land for themselves and for their children was particularly ardent among those who spoke languages not cbmmon in America. The Russians, for example, were among the latter groups, and they were, moreover, particularly interested in world-wide news.0 Such people, knowing that they were not likely to see again the land of their ancestors, desired to retain some of their proud heritage and pass it on to their children. For this reason they needed books and papers not usually printed in the United States. It was true of those who spoke the iSlavic, Scandinavian and Oriental tongues, but such a situation certainly did not exist in the case of the Germans. By the 1850's there was available in the United States enough German literature to satisfy the most ardent Teuton. Editions of Schiller, Goethe, ILessing, Heine, Humboldt and many others were commonly sold, and John Weik of New York City had an "American Poprlar Library of German Classics."7 Support for a continued high rate on books came chiefly from publishers and booksellers, who were aided in their efforts by the trade unions, and, unfortunately, by certain well-known authors. In 1870 Harper Brothers and Henry Lea of Philadelphia tried to interest the protectionist Senator Justin: Morrill of Vermont in an increase in the tariff on books;8 They! were not successful, but they and the other interested parties did succeed in preventing a tariff reduction for some time. The; publishers and typographical c

Dozer, op. cit., 76. "Oscar Handlin (ed.), Immigration as a Factor in American History (Englewood Cliffs, N . J.: Prentice-Hall, Inc., 1959), p. 91. ' C a r l Wittke, Refugees of Revolution (Philadelphia: University of Pennsylvania Press, 1952), j>. 314. 8 Dozer, op. cit., 75.

86



unions petitioned in great numbers against every proposed tariff reduction. In this action they were supported by such authors as Thomas Bailey Aldrich, William Dean Howells, Oliver Wendell Holmes and John Greenleaf Whittier. On February 13, 1883, Holmes, Aldrich and Whittier put their names to a petition against reduction.9 The petition made the point that American authors needed American publishers, and whatever hurt publishing must also hurt writing. Dozer feels that the authors were practically forced to assume this attitude by one of the publishers active in the fight against reduction. Henry Oscar Houghton, founder of Houghton, Mifflin & Co., was a leader of the opposition, and the three authors were, at that time, "virtual retainers" of Houghton.10 The interest in a high tariff in books resulted in the playing of some changes upon the arguments used in debating international copyright. The same familiar arguments were used: viz., that the tariff barrier would slow down the influx of foreign books which might otherwise exert too great an influence upon the American mind and character, and that the barrier would operate to promote a distinctively American literature. It is interesting to note that precisely the same arguments, slanted a bit differently, were used to support international copyright. Dozer pointed out that the publishers were:

revived the International Copyright Association. Putnam, with four other men, Samuel Irenaeus Prime,1!2 Henry Ivison,13 James Parton1* and Egbert Hazard, formed a jcommittee and issued a call to interested parties to join a new association. Meanwhile, they began again to deluge Congress with petitions. Between February 19, 1866, and April 10, 1866, twelve petitions were sent to Congress. Senator Sumner presented all but two of these, and all were referred to the Committee on Foreign RjelatJons. The memorials of William Cullen Bryant and Henry Wadsworth Longfellow were the most notable of the group.16 The Committee did not even consider them, for on a motion by Sumner himself the Committee was discharged from considering petitions.16

. . . motivated, in part at least, by a desire to discourage the entry of pirated editions of their own books into the American market and thereby penalize the foreign publishers who refused to compensate them for their use of their literary property. 11 The arguments and even the philosophy were so similar on both sides, only changing as the situation and viewpoint changed, that one is almost tempted to believe that it was all a question of expediency. The first attempt to influence passage of an international copyright law after the Civil War came when George Palmer Putnam 9

Ibid., 81. Ibid., 82. 11 Ibid., 83. 10

87

Lack of success with their petitions discouraged the copyright Association,, which lapsed into a period of inactivity. It came to life again late in 1867, when Charles Dickens paid his second visit to the United States. For years Dickens had been besieged with requests to come to America to give dramatic readings of his works, as he had been doing throughout the English provinces.17 When the news that he finally had agreed to come was made public, the old accusations and controversies ov;r copyright broke out again, iDickens, considerably mellowed citer twenty-five years, 14 Samuel:I. Prime was a Presbyterian clergyman, editor of the New York Observer, for some thirty-four years. His paper was a religious weekly emphasizing social reforms. H e also.served as the author of the "Editor's Drawer" for Harper's Magazine, and was himself a prolific author with over 40 published titles. Cf. D.A.B., X V , 228. | 13 Henry Ivison was the senior partner of Iyison, Phinney, Blakeman, Taylor and Co., then the largest schoolbook; publishing house in the world. H e .was popular among publishers, serving as President of the Publishers' Board of Trade. Cf. J. C. Derby, Fifty Years Among Authors, Books, and Publishers ( N e w Y o r k : Carleton, 1884), p. j316. " J a m e s Parton worked on the staff of the!New York Home Journal and gained his first fame as the author of a life of Horace Greeley. H e specialized in biography and from 1855 on was one ofi the most industrious, prolific, popular;.-and well-paid authors in the United States. H e was married to Sara Parson Willis, the famous "Fanny Fern;" Cf. D.A.B., 278-280. 18 U . S, Congress, Journal of the Senate, 39th Cong., 1st Sess., 196 and 197. 10 Ibid., 39th Cong., 2d Sess., 374. The motion was made and approved on February 28, 1867. None of the petitions was printed by the Senate. " E d g a r Johnson, Charles Dickens ( N e w Y o r k : Simon & Schuster, 1952), II, 1068.

88



maintained that his remarks had been "good humored," denying that he had ever expressed himself with "soreness."18 Evidently, both Dickens and America were willing to forget and forgive, because from November 19, 1867, to April 22, 1868, Dickens on tour was the object of even greater adulation than before. He enjoyed an exceptionally profitable reading tour before packed houses. This time he did not speak publicly on copyright, but the newspaper comments before his arrival, and the publicity attendant upon his every move, stirred the copyright committee to life. After some delay there was a meeting held in the Manhattan rooms of the New York Historical Society on April 9/1868, which resulted in the formal creation of the International Copyright Association. It is so called, though its official title was The Copyright Association for the Protection and Advancement of Literature and Art.10 William Cullen Bryant again served as President. George William Curtis was Vice President.20 Edmund Clarence Stedman became Secretary.21 All were personal friends of George

P. Putnam. The Association stated that its primary object was to promote the enactment of a just and suitable international copyright law. It began by collecting 153 signatures on a memorial to be presented to Congress. Authors numbering 101, nineteen publishers, and other distinguished men sighed the petition, but as far as can be determined, it was not at j any time presented to Senate or House. It was, however, published as part of a pamphlet on copyright, which the Association put out under the editorship of E. C. Stedman.22 | Congress had already started to look into the matter. On January 16, 1868, Representative Samuel M.| Arnell of Texas submitted the resolution:

"Ibid., II, 1074. 19 George Haven Putnam, The Question of Copyright (New Y o r k : G. P. Putnam's Sons, 1891), 384. w George William Curtis was one of America's most famous literary figures, and an outstanding example of a man who had set aside the possibilities of greater literary fame because of the urge toward the highest duties of citizenship. H e had been an associate editor of Putnam's Monthly, and in 1863 became editor of Harper's Weekly. Curtis was among the first to advocate civil service reform, serving as Chairman of the National Civil Service Reform Association and doing more than any man in this field. H e left the Republican Party to support Cleveland and became one of the most influential Independents. A most gracious gentleman, he was universally respected as a man of high morals, unfailing rectitude and sincere virtue. Cf. D.A.B., IV, 615-616 and William P. Trent et al. (eds.), The Cambridge History of American Literature (Cambridge: The University Press, 19171921), II, 114 ff. a Edmund Clarence Stedman was a well-known American poet and journalist on the staff of the New York World. From 1864 on he supported himself through his own New York G t y brokerage office, but never lost interest in or retired from writing. H e was quick to "join any efforts to promote the prestige of literature or to alleviate the hard lot of authors." In his day, Stedhain was the most popular and esteemed member of the New York literary circle. Cf. D.A.B., 552-553.

89

Resolved, That the Committee on the Library is hereby instructed to inquire into the subject of international copyright and the best means for the encouragement and advancement of cheap literature and the better protection of authors, and to report to this House by bill or otherwise.23 The House agreed to the resolution. Five days later, the Joint Committee on the Library, composed of Senators John Morgan of Michigan, William Fessenden of Mak:e, Timothy Howe of Wisconsin, and Representatives John Baldwin of Massachusetts (Chairman), Rufus Spalding of Ohio, ana John Pruyn of New York, presented a bill and a report.24 George Haven Putnam claims that the International Association drafted the bill which was presented by Baldwin.26 Certainly both] bill ( H . R. 790) and report were favorable to international copyright. The report stated: We were fully persuaded that it is not only expedient, but in a high degree important to the United States to ^Thorvald Solberg, "International Copyright in the Congress of the United States, 1837-1886," Library Journal, XI (1886), 263. 23 U. S. Congress, Journal of the House of Representatives, 40th Cong.. 2d Sess., 197. *Ibid.t 379. 25 George Putnam, George Palmer Putnam: a Memoir (New Y o r k : G. P. Putnam's Sons, 1912), 168. Representative Baldwin was a Congregationalist minister from Worcester, Massachusetts, who left the ministry to enter politics. H e favored international copyright, "prematurely" says the D.A.B., I, 537.

90



establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of justice and honor, in which we should find that justice is the wisest policy for nations, and brings the richest rewards.26

amended several times), needed to be I brought up to date. The statutes were weak in provisions of copyright for paintings, drawings, statuary, and other works of art;;changes in the provisions for dramatic compositions were considered especially desirable. Throughout much of 1869 and the first half of 1870 Congress considered general revision of both copyrights and patents. Each house passed a bill; the H. R. 1714 passed April 25, 1870, and was communicated to the Senate.31 The Senate amended the House bill considerably, and after a joint conference, both houses agreed to the passage of the Act of July 8, 1870.32 This statute remained the domestic copyright law of the United States till the International Copyright Act of 1891. It need only be noted that the former provisions of citizenship and domestic manufacture were retained in the new law, which did not at all affect the situation as far as piracy was concerned.

The bill was designed to secure for authors the benefits of international copyright on the basis of "advancing the development of American literature, and promoting the interests of publishers and book buyers in the United States." 27 The House ordered the report and the bill to be printed, and then recommitted the bill to the same Committee. But upon a motion of Elihu B. Washburne 28 this decision was reconsidered, and the House then voted to lay the bill on the table.29 John Pruyn, one of the members of the Joint Committee, asked and received permission to have a minority report printed, but this does not seem to have been done.30 Nothing more was heard of the Baldwin Bill after this. In fact, Congress did not have the matter of international copyright before either house between February 21, 1868, and December 6, 1871. Congress did, however, after considerable debate, revise the existing domestic copyright law. It was generally admitted that the law, which had not had general revision since 1831 (though M

U . S. Congress, Reports of the committees of the House of Representatives for the 2d Session of the 40th Congress, 1867-68, I, No. 16. The paragraph quoted is the opening of the report which is six pages long., CT U. S. Congress, Journal of the House of Representatives, 40th Cong., 2d Sess., 379. 28 Elihu Benjamin Washburne was a member of a distinguished industrial (flour) and political family. Three brothers served with him in Congress. H e was a close friend of President Grant, a fellow townsman, and chairman of the appropriations committee. Washburne was noted for his opposition to lobbyists and excessive spending. D.A.B., X I X , 504-506. 29 U. S. Congress, Journal of the House of Representatives, 40th Cong., 2d Sess., 545. . * Putnam states that the furor over the impeachment of President Johnson was the cause of the bill's death. Cf. Putnam, Question of Copyright, 385. Perhaps this was why the minority report was never made. John Van Schaick Pruyn was a noted railroad lawyer, better known as counsel in the famous Hudson River Bridge Case. H e represented Albany, New York, in the House at this time.

91

While the advocates of international copyright remained quiet for a while, changes in the book trade and related industries were taking place in the decades after the Civil War. Mention has already been made that the book industry kept pace with the general physical and economic growth of the nation, and that the first half of the nineteenth century was a period of unusual development in typography and the mechanical arts related to book-making and publishing.33 After the war, the fruits of industrialization ripened even more rapidly.34 More technical changes took place in the nineteenth century than had occurred since the invention of printing, and many of them came int Bowker, T>-.-I_- Copyright, ^ • . . . - Its . —History • Richard and /fj -.» Law ~~.~ (Boston: IXJUBIUU, Houghton xj.uugw.uu Mifflin Co., 1912) included one chapter on bibliography, but even he could list very little other than Soldberg's compilation and some periodical articles The movement for international copyright Jin America centered around attempts to secure the passage of a suitable |aw in Congress. Hence, for the period 1836-1891, the student must follow the Journal of the Senate, the Journal of the House of Representatives, Ithe „.^. Globe, ^.^^^, and

Movement for International Copyright in Nineteenth Century America

Nineteenth-Century Rhetoric in North America

Responding to Secularization: The Deaconess Movement in Nineteenth-Century Sweden

Religion in Nineteenth Century America (Religion in American Life)

Waterpower in Lowell: Engineering and Industry in Nineteenth-Century America

Religion in Nineteenth Century America (Religion in American Life)

Poetry and Public Discourse in Nineteenth-Century America (Nineteenth-Century Major Lives and Letters)

The Business of Literary Circles in Nineteenth-Century America (Nineteenth-Century Major Lives and Letters)

Domestic individualism: imagining self in nineteenth-century America

Governmentality and the Mastery of Territory in Nineteenth-century America

Spirits of America: Intoxication in Nineteenth-Century American Literature

Heart versus head: judge-made law in nineteenth-century America

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