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Literary Copyright by Charles Dudley Warner

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This etext was produced by David Widger


By Charles Dudley Warner

This is the first public meeting of the National Institute of Arts and
Letters. The original members were selected by an invitation from the
American Social Science Association, which acted under the power of its
charter from the Congress of the United States. The members thus
selected, who joined the Social Science Association, were given the
alternative of organizing as an independent institute or as a branch of
the Social Science Association.

At the annual meeting of the Social Science Association on September 4,
1899, at Saratoga Springs, the members of the Institute voted to organize
independently. They formally adopted the revised constitution, which had
been agreed upon at the first meeting, in New York in the preceding
January, and elected officers as prescribed by the constitution.

The object is declared to be the advancement of art and literature, and
the qualification shall be notable achievements in art or letters. The
number of active members will probably be ultimately fixed at one
hundred. The society may elect honorary and associate members without
limit. By the terms of agreement between the American Social Science
Association and the National Institute, the members of each are 'ipso
facto' associate members of the other.

It is believed that the advancement of art and literature in this country
will be promoted by the organization of the producers of literature and
art. This is in strict analogy with the action of other professions and
of almost all the industries. No one doubts that literature and art are
or should be leading interests in our civilization, and their dignity
will be enhanced in the public estimation by a visible organization of
their representatives, who are seriously determined upon raising the
standards by which the work of writers and artists is judged. The
association of persons having this common aim cannot but stimulate
effort, soften unworthy rivalry into generous competition, and promote
enthusiasm and good fellowship in their work. The mere coming together
to compare views and discuss interests and tendencies and problems which
concern both the workers and the great public, cannot fail to be of
benefit to both.

In no other way so well as by association of this sort can be created the
feeling of solidarity in our literature, and the recognition of its
power. It is not expected to raise any standard of perfection, or in any
way to hamper individual development, but a body of concentrated opinion
may raise the standard by promoting healthful and helpful criticism, by
discouraging mediocrity and meretricious smartness, by keeping alive the
traditions of good literature, while it is hospitable to all discoverers
of new worlds. A safe motto for any such society would be Tradition and
Freedom--'Traditio et Libertas'.

It is generally conceded that what literature in America needs at this
moment is honest, competent, sound criticism. This is not likely to be
attained by sporadic efforts, especially in a democracy of letters where
the critics are not always superior to the criticised, where the man in
front of the book is not always a better marksman than the man behind the
book. It may not be attained even by an organization of men united upon
certain standards of excellence. I do not like to use the word
authority, but it is not unreasonable to suppose that the public will be
influenced by a body devoted to the advancement of art and literature,
whose sincerity and discernment it has learned to respect, and admission
into whose ranks will, I hope, be considered a distinction to be sought
for by good work. The fashion of the day is rarely the judgment of
posterity. You will recall what Byron wrote to Coleridge: "I trust you
do not permit yourself to be depressed by the temporary partiality of
what is called 'the public' for the favorites of the moment; all
experience is against the permanency of such impressions. You must have
lived to see many of these pass away, and will survive many more."

The chief concern of the National Institute is with the production of
works of art and of literature, and with their distribution. In the
remarks following I shall confine myself to the production and
distribution of literature. In the limits of this brief address I can
only in outline speak of certain tendencies and practices which are
affecting this production and this distribution. The interests involved
are, first, those of the author; second, those of the publisher; third,
those of the public. As to all good literature, the interests of these
three are identical if the relations of the three are on the proper
basis. For the author, a good book is of more pecuniary value than a
poor one, setting aside the question of fame; to the publisher, the right
of publishing a good book is solid capital,--an established house, in the
long run, makes more money on "Standards" than on "Catchpennies"; and to
the public the possession of the best literature is the breath of life,
as that of the bad and mediocre is moral and intellectual decadence.
But in practice the interests of the three do not harmonize. The author,
even supposing his efforts are stimulated by the highest aspirations for
excellence and not by any commercial instinct, is compelled by his
circumstances to get the best price for his production; the publisher
wishes to get the utmost return for his capital and his energy; and the
public wants the best going for the least money.

Consider first the author, and I mean the author, and not the mere
craftsman who manufactures books for a recognized market. His sole
capital is his talent. His brain may be likened to a mine, gold, silver,
copper, iron, or tin, which looks like silver when new. Whatever it is,
the vein of valuable ore is limited, in most cases it is slight. When it
is worked out, the man is at the end of his resources. Has he expended
or produced capital? I say he has produced it, and contributed to the
wealth of the world, and that he is as truly entitled to the usufruct of
it as the miner who takes gold or silver out of the earth. For how long?
I will speak of that later on. The copyright of a book is not analogous
to the patent right of an invention, which may become of universal
necessity to the world. Nor should the greater share of this usufruct be
absorbed by the manufacturer and publisher of the book. The publisher
has a clear right to guard himself against risks, as he has the right of
refusal to assume them. But there is an injustice somewhere, when for
many a book, valued and even profitable to somebody, the author does not
receive the price of a laborer's day wages for the time spent on it--to
say nothing of the long years of its gestation.

The relation between author and publisher ought to be neither complicated
nor peculiar. The author may sell his product outright, or he may sell
himself by an agreement similar to that which an employee in a
manufacturing establishment makes with his master to give to the
establishment all his inventions. Either of these methods is fair and
businesslike, though it may not be wise. A method that prevailed in the
early years of this century was both fair and wise. The author agreed
that the publisher should have the exclusive right to publish his book
for a certain term, or to make and sell a certain number of copies. When
those conditions were fulfilled, the control of the property reverted to
the author. The continuance of these relations between the two depended,
as it should depend, upon mutual advantage and mutual good-will.
By the present common method the author makes over the use of his
property to the will of the publisher. It is true that he parts with the
use only of the property and not with the property itself, and the
publisher in law acquires no other title, nor does he acquire any sort of
interest in the future products of the author's brain. But the author
loses all control of his property, and its profit to him may depend upon
his continuing to make over his books to the same publisher. In this
continuance he is liable to the temptation to work for a market, instead
of following the free impulses of his own genius. As to any special
book, the publisher is the sole judge whether to push it or to let it
sink into the stagnation of unadvertised goods.

The situation is full of complications. Theoretically it is the interest
of both parties to sell as many books as possible. But the author has an
interest in one book, the publisher in a hundred. And it is natural and
reasonable that the man who risks his money should be the judge of the
policy best for his whole establishment. I cannot but think that this
situation would be on a juster footing all round if the author returned
to the old practice of limiting the use of his property by the publisher.
I say this in full recognition of the fact that the publishers might be
unwilling to make temporary investments, or to take risks. What then?
Fewer books might be published. Less vanity might be gratified. Less
money might be risked in experiments upon the public, and more might be
made by distributing good literature. Would the public be injured? It
is an idea already discredited that the world owes a living to everybody
who thinks he can write, and it is a superstition already fading that
capital which exploits literature as a trade acquires any special

The present international copyright, which primarily concerns itself with
the manufacture of books, rests upon an unintelligible protective tariff
basis. It should rest primarily upon an acknowledgment of the author's
right of property in his own work, the same universal right that he has
in any other personal property. The author's international copyright
should be no more hampered by restrictions and encumbrances than his
national copyright. Whatever regulations the government may make for the
protection of manufactures, or trade industries, or for purposes of
revenue on importations, they should not be confounded with the author's
right of property. They have no business in an international copyright
act, agreement, or treaty. The United States copyright for native
authors contains no manufacturing restrictions. All we ask is that
foreign authors shall enjoy the same privileges we have under our law,
and that foreign nations shall give our authors the privileges of their
local copyright laws. I do not know any American author of any standing
who has ever asked or desired protection against foreign authors.

This subject is so important that I may be permitted to enlarge upon it,
in order to make clear suggestions already made, and to array again
arguments more or less familiar. I do this in the view of bringing
before the institute work worthy of its best efforts, which if successful
will entitle this body to the gratitude and respect of the country.
I refer to the speedy revision of our confused and wholly inadequate
American copyright laws, and later on to a readjustment of our
international relations.

In the first place let me bring to your attention what is, to the vast
body of authors, a subject of vital interest, which it is not too much to
say has never received that treatment from authors themselves which its
importance demands. I refer to the property of authors in their
productions. In this brief space and time I cannot enter fully upon this
great subject, but must be content to offer certain suggestions for your

The property of an author in the product of his mental labor ought to be
as absolute and unlimited as his property in the product of his physical
labor. It seems to me idle to say that the two kinds of labor products
are so dissimilar that the ownership cannot be protected by like laws.
In this age of enlightenment such a proposition is absurd. The history
of copyright law seems to show that the treatment of property in brain
product has been based on this erroneous idea. To steal the paper on
which an author has put his brain work into visible, tangible form is in
all lands a crime, larceny, but to steal the brain work is not a crime.
The utmost extent to which our enlightened American legislators, at
almost the end of the nineteenth century, have gone in protecting
products of the brain has been to give the author power to sue in civil
courts, at large expense, the offender who has taken and sold his

And what gross absurdity is the copyright law which limits even this poor
defense of author's property to a brief term of years, after the
expiration of which he or his children and heirs have no defense, no
recognized property whatever in his products.

And for some inexplicable reason this term of years in which he may be
said to own his property is divided into two terms, so that at the end of
the first he is compelled to re-assert his ownership by renewing his
copyright, or he must lose all ownership at the end of the short term.

It is manifest to all honest minds that if an author is entitled to own
his work for a term of years, it is equally the duty of his government to
make that ownership perpetual. He can own and protect and leave to his
children and his children's children by will the manuscript paper on
which he has written, and he should have equal right to leave to them
that mental product which constitutes the true money value of his labor.
It is unnecessary to say that the mental product is always as easy to be
identified as the physical product. Its identification is absolutely
certain to the intelligence of judges and juries. And it is apparent
that the interests of assignees, who are commonly publishers, are equal
with those of authors, in making absolute and perpetual this property in
which both are dealers.

Another consideration follows here. Why should the ownership of a bushel
of wheat, a piece of silk goods, a watch, or a handkerchief in the
possession of an American carried or sent to England, or brought thence
to this country, be absolute and unlimited, while the ownership of his
own products as an author or as a purchaser from an author is made
dependent on his nationality? Why should the property of the
manufacturer of cloths, carpets, satins, and any and every description of
goods, be able to send his products all over the world, subject only to
the tariff laws of the various countries, while the author (alone of all
known producers) is forbidden to do so? The existing law of our country
says to the foreign author, "You can have property in your book only if
you manufacture it into salable form in this country." What would be
said of the wisdom or wild folly of a law which sought to protect other
American industries by forbidding the importation of all foreign

No question of tariff protection is here involved. What duty shall be
imposed upon foreign products or foreign manufactures is a question of
political economy. The wrong against which authors should protest is in
annexing to their terms of ownership of their property a protective
tariff revision. For, be it observed, this is a subject of abstract
justice, moral right, and it matters nothing whether the author be
American, English, German, French, Hindoo, or Chinese,--and it is very
certain that when America shall enact a simple, just, copyright law,
giving to every human being the same protection of law to his property in
his mental products as in the work of his hands, every civilized nation
on earth will follow the noble example.

As it now stands, authors who annually produce the raw material for
manufacturing purposes to an amount in value of millions, supporting vast
populations of people, authors whose mental produce rivals and exceeds in
commercial value many of the great staple products of our fields, are the
only producers who have no distinct property in their products, who
are not protected in holding on to the feeble tenure the law gives them,
and whose quasi-property in their works, flimsy as it is, is limited to a
few years, and cannot with certainty be handed down to their children.
It will be said, it is said, that it is impossible for the author to
obtain an acknowledgment of absolute right of property in his brain work.
In our civilization we have not yet arrived at this state of justice.
It may be so. Indeed some authors have declared that this justice would
be against public policy. I trust they are sustained by the lofty
thought that in this view they are rising above the petty realm of
literature into the broad field of statesmanship.

But I think there will be a general agreement that in the needed revisal
of our local copyright law we can attain some measure of justice. Some
of the most obvious hardships can be removed. There is no reason why an
author should pay for the privilege of a long life by the loss of his
copyrights, and that his old age should be embittered by poverty because
he cannot have the results of the labor of his vigorous years. There is
no reason why if he dies young he should leave those dependent on him
without support, for the public has really no more right to appropriate
his book than it would have to take his house from his widow and
children. His income at best is small after he has divided with the

No, there can certainly be no valid argument against extending the
copyright of the author to his own lifetime, with the addition of forty
or fifty years for the benefit of his heirs. I will not leave this
portion of the topic without saying that a perfectly harmonious relation
between authors and publishers is most earnestly to be desired, nor
without the frank acknowledgment that, in literary tradition and in the
present experience, many of the most noble friendships and the most
generous and helpful relations have subsisted, as they ought always to
subsist, between the producers and the distributors of literature,
especially when the publisher has a love for literature, and the author
is a reasonable being and takes pains to inform himself about the
publishing business.

One aspect of the publishing business which has become increasingly
prominent during the last fifteen years cannot be overlooked, for it is
certain to affect seriously the production of literature as to quality,
and its distribution. Capital has discovered that literature is a
product out of which money can be made, in the same way that it can be
made in cotton, wheat, or iron. Never before in history has so much
money been invested in publishing, with the single purpose of creating
and supplying the market with manufactured goods. Never before has there
been such an appeal to the reading public, or such a study of its tastes,
or supposed tastes, wants, likes and dislikes, coupled also with the same
shrewd anxiety to ascertain a future demand that governs the purveyors of
spring and fall styles in millinery and dressmaking. Not only the
contents of the books and periodicals, but the covers, must be made to
catch the fleeting fancy. Will the public next season wear its hose
dotted or striped?

Another branch of this activity is the so-called syndicating of the
author's products in the control of one salesman, in which good work and
inferior work are coupled together at a common selling price and in
common notoriety. This insures a wider distribution, but what is its
effect upon the quality of literature? Is it your observation that the
writer for a syndicate, on solicitation for a price or an order for a
certain kind of work, produces as good quality as when he works
independently, uninfluenced by the spirit of commercialism? The question
is a serious one for the future of literature.

The consolidation of capital in great publishing establishments has its
advantages and its disadvantages. It increases vastly the yearly output
of books. The presses must be kept running, printers, papermakers, and
machinists are interested in this. The maw of the press must be fed.
The capital must earn its money. One advantage of this is that when new
and usable material is not forthcoming, the "standards" and the best
literature must be reproduced in countless editions, and the best
literature is broadcast over the world at prices to suit all purses, even
the leanest. The disadvantage is that products, in the eagerness of
competition for a market, are accepted which are of a character to harm
and not help the development of the contemporary mind in moral and
intellectual strength. The public expresses its fear of this in the
phrase it has invented--"the spawn of the press." The author who writes
simply to supply this press, and in constant view of a market, is certain
to deteriorate in his quality, nay more, as a beginner he is satisfied if
he can produce something that will sell without regard to its quality.
Is it extravagant to speak of a tendency to make the author merely an
adjunct of the publishing house? Take as an illustration the
publications in books and magazines relating to the late Spanish-American
war. How many of them were ordered to meet a supposed market, and how
many of them were the spontaneous and natural productions of writers who
had something to say? I am not quarreling, you see, with the newspapers
who do this sort of thing; I am speaking of the tendency of what we have
been accustomed to call literature to take on the transient and hasty
character of the newspaper.

In another respect, in method if not in quality, this literature
approaches the newspaper. It is the habit of some publishing houses, not
of all, let me distinctly say, to seek always notoriety, not to nurse and
keep before the public mind the best that has been evolved from time to
time, but to offer always something new. The year's flooring is threshed
off and the floor swept to make room for a fresh batch. Effort
eventually ceases for the old and approved, and is concentrated on
experiments. This is like the conduct of a newspaper. It is assumed
that the public must be startled all the time.

I speak of this freely because I think it as bad policy for the publisher
as it is harmful to the public of readers. The same effort used to
introduce a novelty will be much better remunerated by pushing the sale
of an acknowledged good piece of literature.

Literature depends, like every other product bought by the people, upon
advertising, and it needs much effort usually to arrest the attention of
our hurrying public upon what it would most enjoy if it were brought to
its knowledge.

It would not be easy to fix the limit in this vast country to the
circulation of a good book if it were properly kept before the public.
Day by day, year by year, new readers are coming forward with curiosity
and intellectual wants. The generation that now is should not be
deprived of the best in the last generation. Nay more, one publication,
in any form, reaches only a comparatively small portion of the public
that would be interested in it. A novel, for instance, may have a large
circulation in a magazine; it may then appear in a book; it may reach
other readers serially again in the columns of a newspaper; it may be
offered again in all the by-ways by subscription, and yet not nearly
exhaust its legitimate running power. This is not a supposition but a
fact proved by trial. Nor is it to be wondered at, when we consider that
we have an unequaled homogeneous population with a similar common-school
education. In looking over publishers' lists I am constantly coming
across good books out of print, which are practically unknown to this
generation, and yet are more profitable, truer to life and character,
more entertaining and amusing, than most of those fresh from the press
month by month.

Of the effect upon the literary product of writing to order, in obedience
to a merely commercial instinct, I need not enlarge to a company of
authors, any more than to a company of artists I need to enlarge upon the
effect of a like commercial instinct upon art.

I am aware that the evolution of literature or art in any period, in
relation to the literature and art of the world, cannot be accurately
judged by contemporaries and participants, nor can it be predicted. But
I have great expectations of the product of both in this country, and I
am sure that both will be affected by the conduct of persons now living.
It is for this reason that I have spoken.

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