« НазадПродовжити »
Since the observations in the text were printed, Mr. Talfourd's bill bas been reintroduced, with two important alterations in its details, which partly anticipate what I had intended to suggest in this note. But before any further remarks are offered with respect to the learned Sergeant's bill, it may be useful briefly to trace the present state of law respecting literary property in the principal countries of Europe and in the United States.
In Denmark, Norway, and Sweden, and in some of the minor States of Germany, copyright in books is perpetual. Of the state of the law in Spain, I am unable to speak so positively, but I infer from the statement of M. Victor Foucher,* (on the authority of the Nuevissimo Recopilaciont of 1805,) that there it is perpetual also. M. Foucher's words are “ En Espagne une loi de 1805, doit admettre la perpétuité du droit de l'auteur."
In Russia, by a law of 1830, copyright subsists in the author for bis life, and in his beirs for twenty-five years after his death, and if within five years of the expiration of this term a new edition be published, then it subsists in the heirs for a further term of ten years from the expiration of the twenty-five. In the case of assigned copyright, the Russian law gives the author a presumptive right to publish a second edition, after the lapse of five years, if there be no express agreement in writing to the contrary. I
In Prussia, by a law of the 17th of July, 1837,9 copyright subsists in the author for his life, and in his heirs for a term of thirty years from his death, without distinction whether the work shall have been published during his lifetime or not. And by the 35th section, the privileges of this law was extended “to all writings, charts, drawings, and musical compositions which are already printed.”'ll
• De la Propriété Littéraire et de la Contrefaçon, Paris 1836.
Felix: Revue Etrangère et Française de Législation, &c.
Tit. xi. Art. 996-1036, of the General Code, part i. || Das Königl. Preussische Gesetz vom 11 Juni, 1837, zum Schutze des Eigenthums an Werken der Wissenschaft und Kunst gegen Nachdruck und Nachbildung: durgestellt...durch D", J. E. Hitzig, Berlin, 1838. In France, by an ordinance of the 30th of August, 1777, copyright in the author and his heirs was made perpetual, but if assigned to a bookseller it ceased with the author's life.* This perpetuity, however, was reduced to a term of ten years from the author's death, by a law of the National Convention, (July 19, 1793,) and this term again extended in favour of the widowť and children, to twenty years, by an imperial decree of the 16th of February, 1810. If an author bave neither widow nor children, then his beirs or assigns have a term of ten years from his death.
Since tbis period, two distinct commissions the first in 1826, under the presidency of the Vicomte de la Rochefoucauld ; the other, in 1836, under that of the Comte Philippe de Ségur - have recommended the further extension of the term to fifty years after the author's death, in favour of his widow and heirs, “ legataires ou donataires,” provided the copyright shall have been unassigned, but if assigned, then the commission recommend that the assignees be bound to make an equitable allowance of profits upon each edition to the author's heirs. I
In Holland and in Belgium copyright subsists for a term of twenty years from the author's death, under conditions not very dissimilar to those of the French law. At least I am not aware of any alteration of the general law of the Netherlands of the 25th of January, 1817.
In the United States of America, copyright subsists in the author for twenty-eight years, with an additional term of fourteen years, if he, or his wife, or his children so long survive.ll But here, as in France, opinion seems to tend towards an increase of this term. A writer in the Ameri. rican Jurist, after stating that a Judiciary Committee of the House of Representation, which sat on this subject in 1831, would have reported a bill for a perpetual copyright,“ if they had thought the public mind prepared for so great a change at one stride;" continues—“But the time, we venture to augur, is not far distant, when authors will be placed nearer upon an equality with their fellow-men, in the enjoyment of what they earn by
• « Tout auteur qui obtiendra en son nom le privilége de son ouvrage, aura le droit de le vendre......et jouira de son privilége pour lui et ses hoirs à perpétuité pourvu qu'il ne le rétrocéde à aucun libraire, auquel cas la durée du privilége sera, par le fait seul de la cession, réduite à celle de la vie de l'auteur.” Ordonnance du 30 Avril, 1777. Art. 5. Recueil général des anciennes Lois Françaises. Tom. 25, p. 109.
+ The widow's right to the usufruct for ber life depends on the “ conventions matrimoniales," if she enjoy it, the term of twenty years still remains in the children, from the date of her death. | Rapport de la Commission, etc. Art. 15.
See Répertoire du Jurisprudence, contrefaçon. Sec. 17. || See the Acts of Feb. 3, 1831, and 30th of June, 1834. – Revue Etrangère et Française de Législation, &c. Tom. 1, p. 449.
I Vol. 10, p. 80.
their labour. The public are growing more and more disposed to admit, that if there be one description of property which merits more protection, or one which it is more politic to favour than another, it is literary property. And certainly, if there be any sum which the public are more free in paying than another, it is the trivial extra sum put upon a book which is intended for the author's pocket."
This affords a refreshing contrast to the strange jumble of objections to wbich the discussion of Mr. Talfourd's bill has given rise in England. But for these, I should feel ashamed to have argued at length positions so elementary and so obvious, (as most certainly they would be deemed anywhere out of England,) as those in the text. But on this subject nothing can be too elementary when we find one legislator stating in bis place in Parliament, that “ if we do not raise the price of works, we do nothing for the authors,"-as if the productive value of a copyrightbook in the author's hands would not as much depend on a low price and a large sale as it does, whether copyright or not, (and the fact is more clearly perceived every day,) if in the hand of a bookseller ;-and another legislator telling us that the petitioners for an increased term are “interested parties, and therefore have no claim to attention;" + and a third summing up the entire subject thus: “I can never bring myself to support any measure which goes further than to give authors the minimum of indueement to produce their works. ....... I am opposed to all copyright, excepting that which is necessary to secure the production of works of literature and science.”
Although nothing would be less just than to rest the decision of this question on the probable results of an increased term with respect to the price of books, it is yet worth while to show that the enbancement of the price as a consequence of such increase is wholly improbable.
For, in the first place, it is not consistent with recent experience, e. g. we bave now copyright editions of the poems of Rogers for one shilling and sixpence; of the poems of Campbell for two shillings; and those of Byron-complete-for one pound.
And, in the second place, there is a factitious and illegal term of copyright, in addition to the present legal term, which is kept up by the combinations of booksellers; and this in some cases does actually tend to enbance the prices, booksellers in running one copyright against another having or seeming to have an interest in this enbancement, which could not be the case with the author, even supposing him to be careless of his own fame.
• Mr. Warburton, Mir. of Parl., May, 1839.
Sir R. M. Rolfe, then Solicitor General, Ib.
." This factitious copyright, which underlies no small portion of the opposition made to Mr. Talfourd's bill, has been suffered to peep out in Mr. Thomas Tegg's statement, that “ the bookseller knows that the connexion he forms with the book, survives the term of the monopoly, and that he retains a sort of good-will property after the expiration of the copyright, and generally the principal share of the subsequent sale."*Hinc ille lachrymæ.
Tbe objection to that clause of the original bill which proposed to create a reversionary interest for the author or his representative, in copyright wbich had been absolutely assigned, had certainly considerable force. But the clause has been withdrawn, and the present bill affects subsisting copyright in two cases only: the first, when the author has retained it in himself, and then it is to have the extended term; the second, where there is a joint interest coextensive with the present term, and then, too, the extension is to take effect, by consent, in favour of both parties jointly, and in the same proportions as the existing term.
There are still minor details in the bill which I think susceptible of amendment, but I have reason to believe that these will not be overlooked in the committee-whenever the bill shall get there. And this note has already exceeded its purposed limits.
It is certainly to be regretted that the learned and eloquent framer of this bill has not, in conducting it, displayed quite so much of persistent energy as he has of every other admirable quality. Despite the vexatious nature of the opposition it has met with, and the state of the public business, it is difficult to believe that it could not have been carried through the Commons in this its fourth session.
Amongst all the objectors to this bill, not one has even attempted to disprove the assertion of Wordsworth, that its passing would tend “to relieve men of letters from the thraldom of being forced to court the living generation, to aid them in rising above slavish taste and degrading prejudices, and to encourage them to rely on their own impulses.”+
I cannot quit the subject without alluding to a somewbat novel feature in its discussion, involved in a proposition made by M. Hector Bossange, of Paris, in his pamphlet Sur la Propriété Littéraire. M. Bossange contends for a full property during a limited term, succeeded by a limited property in perpetuity, and thus his argument bears directly up what is undoubtedly the grand difficulty-the combination of the advantages of competition with justice to the author. “Is it possible,” he asks, “ to reconcile freedom of trade with the rights of authors ?" Nothing is easier ;
• Remarks on the Speech of Sergeant Talfourd, p. 20. Never was the old saying, Ne sutor, &c. more applicable than to this pamphlet.
† Petition to the House of Commons.
it is only to change the temporary exclusive privilege into a perpetual one over all new editions, abolish the author's exclusive privilege, and allow anybody to print any book, always on condition of an allowance to the author on each edition.
M. Bossange thinks that however small the allowance, (that it may not discourage the reprinting of books) when once given up to the energy of free trade, good books would produce good returns. On the means of giving effect to bis plan he thus proceeds :
“1. As to the work, that the author may have time to correct his work, and to profit by the experiment of a first publication, no one should be allowed to reprint bis book without his express permission, until ten years after its first appearance, and after that period no one should be allowed to make alterations, suppressions, or additions, without the author's consent.
“2. No new editions shall be offered for sale until after the publisher had paid in money an allowance to the author or his assigns. ...... ..... In order to avoid all dispute, tbis allowance should be fixed by law, at so much per leaf, or so much per cent. on the cost of fabrication; — if it be said that by this all books are valued at the same rate, without regard to merit, I reply that it is not the rate of the author's allowance which swells the amount, but the number of copies worked off.
“3. The guarantee of the performance of the contract would consist in giving a new activity to the laws already in existence.”
I cite this plan, not as intending to discuss it, although it involves points well deserving of consideration, but as an addition to the materials on which judgment may ultimately be founded. M. Bossange's concluding words are very applicable to the conclusion of this already long note :
“Je m'arrête,” he says, “parce que ce n'est pas en quelques pages qu'on pourrait épuiser la question, et que je n'ai pas prétension de le faire. J'ai seulement voulu apporter mon grain de sable dans la balance au moment où la question s'agite.
“Je sais que les objections ne manqueront pas, tant les idées de monopole et de privilege obscurissent encore les questions les plus simples, mais j'ai foi que tôt ou tard mon idée germera. Je crois au temps."
Not among the least important results of every real improvement of copyright law, in this or in any other country, will be its tendency greatly to facilitate the establishment of a sound international law for the universal protection of literary property throughout Europe and America.
Note B. Patents for Inventions, pp. 59-61. The Act 5 & 6 Will. IV., c. 83, known as Lord Brougham's Act, has in its practical effect done little more than enable opulent patentees by a