It is my conviction that, under
such a system as that which he recommends to us, a copy of Clarissa
would have been as rare as an Aldus or a Caxton.
such a system as that which he recommends to us, a copy of Clarissa
would have been as rare as an Aldus or a Caxton.
Macaulay
For, even if I believed in a natural
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued. For the existing law gives an author
copyright during his natural life; nor do I propose to invade that
privilege, which I should, on the contrary, be prepared to defend
strenuously against any assailant. The only point in issue between
us is, how long after an author's death the State shall recognise a
copyright in his representatives and assigns; and it can, I think,
hardly be disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear to be most
conducive to the general good.
We may now, therefore, I think, descend from these high regions, where
we are in danger of being lost in the clouds, to firm ground and clear
light. Let us look at this question like legislators, and after fairly
balancing conveniences and inconveniences, pronounce between the
existing law of copyright, and the law now proposed to us. The question
of copyright, Sir, like most questions of civil prudence, is neither
black nor white, but grey. The system of copyright has great advantages
and great disadvantages; and it is our business to ascertain what these
are, and then to make an arrangement under which the advantages may be
as far as possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and learned
friend's bill is this, that it leaves the advantages nearly what they
are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is
desirable that we should have a supply of good books; we cannot have
such a supply unless men of letters are liberally remunerated; and the
least objectionable way of remunerating them is by means of copyright.
You cannot depend for literary instruction and amusement on the
leisure of men occupied in the pursuits of active life. Such men may
occasionally produce compositions of great merit. But you must not look
to such men for works which require deep meditation and long research.
Works of that kind you can expect only from persons who make literature
the business of their lives. Of these persons few will be found among
the rich and the noble. The rich and the noble are not impelled to
intellectual exertion by necessity. They may be impelled to intellectual
exertion by the desire of distinguishing themselves, or by the desire
of benefiting the community. But it is generally within these walls that
they seek to signalise themselves and to serve their fellow-creatures.
Both their ambition and their public spirit, in a country like this,
naturally take a political turn. It is then on men whose profession is
literature, and whose private means are not ample, that you must rely
for a supply of valuable books. Such men must be remunerated for their
literary labour. And there are only two ways in which they can be
remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public,
but to the government, or to a few great men, for the reward of their
exertions. It was thus in the time of Maecenas and Pollio at Rome,
of the Medici at Florence, of Louis the Fourteenth in France, of Lord
Halifax and Lord Oxford in this country. Now, Sir, I well know that
there are cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the distresses of men of
genius by the exercise of this species of liberality. But these cases
are exceptions. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught
to look for their daily bread to the favour of ministers and nobles. I
can conceive no system more certain to turn those minds which are formed
by nature to be the blessings and ornaments of our species into public
scandals and pests.
We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honourable and learned friend
talks very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory that day and night follow each other, that
lead is heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates. If, as my honourable and learned friend seems
to think, the whole world is in the wrong on this point, if the real
effect of monopoly is to make articles good and cheap, why does he stop
short in his career of change? Why does he limit the operation of so
salutary a principle to sixty years? Why does he consent to anything
short of a perpetuity? He told us that in consenting to anything short
of a perpetuity he was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct, extreme right
and expediency would coincide. Or rather, why should we not restore the
monopoly of the East India trade to the East India Company? Why should
we not revive all those old monopolies which, in Elizabeth's reign,
galled our fathers so severely that, maddened by intolerable wrong, they
opposed to their sovereign a resistance before which her haughty spirit
quailed for the first and for the last time? Was it the cheapness and
excellence of commodities that then so violently stirred the indignation
of the English people? I believe, Sir, that I may with safety take it
for granted that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honourable friend to find out any distinction
between copyright and other privileges of the same kind; any reason why
a monopoly of books should produce an effect directly the reverse of
that which was produced by the East India Company's monopoly of tea, or
by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It
is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not
to last a day longer than is necessary for the purpose of securing the
good.
Now, I will not affirm that the existing law is perfect, that it
exactly hits the point at which the monopoly ought to cease; but this
I confidently say, that the existing law is very much nearer that point
than the law proposed by my honourable and learned friend. For consider
this; the evil effects of the monopoly are proportioned to the length
of its duration. But the good effects for the sake of which we bear
with the evil effects are by no means proportioned to the length of its
duration. A monopoly of sixty years produces twice as much evil as
a monopoly of thirty years, and thrice as much evil as a monopoly of
twenty years. But it is by no means the fact that a posthumous monopoly
of sixty years gives to an author thrice as much pleasure and thrice
as strong a motive as a posthumous monopoly of twenty years. On the
contrary, the difference is so small as to be hardly perceptible. We
all know how faintly we are affected by the prospect of very distant
advantages, even when they are advantages which we may reasonably hope
that we shall ourselves enjoy. But an advantage that is to be enjoyed
more than half a century after we are dead, by somebody, we know not by
whom, perhaps by somebody unborn, by somebody utterly unconnected with
us, is really no motive at all to action. It is very probable that in
the course of some generations land in the unexplored and unmapped heart
of the Australasian continent will be very valuable. But there is none
of us who would lay down five pounds for a whole province in the heart
of the Australasian continent. We know, that neither we, nor anybody for
whom we care, will ever receive a farthing of rent from such a province.
And a man is very little moved by the thought that in the year 2000 or
2100, somebody who claims through him will employ more shepherds than
Prince Esterhazy, and will have the finest house and gallery of pictures
at Victoria or Sydney. Now, this is the sort of boon which my honourable
and learned friend holds out to authors. Considered as a boon to them,
it is a mere nullity, but considered as an impost on the public, it is
no nullity, but a very serious and pernicious reality. I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr Johnson's works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that
it would have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had bought
the copyright from Black Frank, the doctor's servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright
would exist in 1841 have been a source of gratification to Johnson?
Would it have stimulated his exertions? Would it have once drawn him out
of his bed before noon? Would it have once cheered him under a fit of
the spleen? Would it have induced him to give us one more allegory, one
more life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was writing our
debates for the Gentleman's Magazine, he would very much rather have had
twopence to buy a plate of shin of beef at a cook's shop underground.
Considered as a reward to him, the difference between a twenty years'
and sixty years' term of posthumous copyright would have been nothing or
next to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can buy
the Dictionary, the entire genuine Dictionary, for two guineas, perhaps
for less; I might have had to give five or six guineas for it. Do I
grudge this to a man like Dr Johnson? Not at all. Show me that the
prospect of this boon roused him to any vigorous effort, or sustained
his spirits under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But what I do
complain of is that my circumstances are to be worse, and Johnson's none
the better; that I am to give five pounds for what to him was not worth
a farthing.
The principle of copyright is this. It is a tax on readers for the
purpose of giving a bounty to writers. The tax is an exceedingly bad
one; it is a tax on one of the most innocent and most salutary of human
pleasures; and never let us forget, that a tax on innocent pleasures
is a premium on vicious pleasures. I admit, however, the necessity of
giving a bounty to genius and learning. In order to give such a bounty,
I willingly submit even to this severe and burdensome tax. Nay, I am
ready to increase the tax, if it can be shown that by so doing I should
proportionally increase the bounty. My complaint is, that my honourable
and learned friend doubles, triples, quadruples, the tax, and makes
scarcely any perceptible addition to the bounty. Why, Sir, what is the
additional amount of taxation which would have been levied on the public
for Dr Johnson's works alone, if my honourable and learned friend's
bill had been the law of the land? I have not data sufficient to form
an opinion. But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In reckoning the whole
additional sum which the holders of his copyrights would have taken
out of the pockets of the public during the last half century at twenty
thousand pounds, I feel satisfied that I very greatly underrate it. Now,
I again say that I think it but fair that we should pay twenty thousand
pounds in consideration of twenty thousand pounds' worth of pleasure and
encouragement received by Dr Johnson. But I think it very hard that we
should pay twenty thousand pounds for what he would not have valued at
five shillings.
My honourable and learned friend dwells on the claims of the posterity
of great writers. Undoubtedly, Sir, it would be very pleasing to see a
descendant of Shakespeare living in opulence on the fruits of his great
ancestor's genius. A house maintained in splendour by such a patrimony
would be a more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But, unhappily, it is
scarcely possible that, under any system, such a thing can come to pass.
My honourable and learned friend does not propose that copyright shall
descend to the eldest son, or shall be bound up by irrecoverable entail.
It is to be merely personal property. It is therefore highly improbable
that it will descend during sixty years or half that term from parent to
child. The chance is that more people than one will have an interest in
it. They will in all probability sell it and divide the proceeds. The
price which a bookseller will give for it will bear no proportion to the
sum which he will afterwards draw from the public, if his speculation
proves successful. He will give little, if anything, more for a term of
sixty years than for a term of thirty or five and twenty. The present
value of a distant advantage is always small; but when there is great
room to doubt whether a distant advantage will be any advantage at all,
the present value sink to almost nothing. Such is the inconstancy of
the public taste that no sensible man will venture to pronounce, with
confidence, what the sale of any book published in our days will be
in the years between 1890 and 1900. The whole fashion of thinking and
writing has often undergone a change in a much shorter period than
that to which my honourable and learned friend would extend posthumous
copyright. What would have been considered the best literary property
in the earlier part of Charles the Second's reign? I imagine Cowley's
Poems. Overleap sixty years, and you are in the generation of which Pope
asked, "Who now reads Cowley? " What works were ever expected with more
impatience by the public than those of Lord Bolingbroke, which appeared,
I think, in 1754? In 1814, no bookseller would have thanked you for the
copyright of them all, if you had offered it to him for nothing. What
would Paternoster Row give now for the copyright of Hayley's Triumphs of
Temper, so much admired within the memory of many people still living? I
say, therefore, that, from the very nature of literary property, it will
almost always pass away from an author's family; and I say, that the
price given for it to the family will bear a very small proportion to
the tax which the purchaser, if his speculation turns out well, will in
the course of a long series of years levy on the public.
If, Sir, I wished to find a strong and perfect illustration of the
effects which I anticipate from long copyright, I should select,--my
honourable and learned friend will be surprised,--I should select the
case of Milton's granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been brought forward
by the advocates of monopoly. My honourable and learned friend has
repeatedly told the story with great eloquence and effect. He has
dilated on the sufferings, on the abject poverty, of this ill-fated
woman, the last of an illustrious race. He tells us that, in the
extremity of her distress, Garrick gave her a benefit, that Johnson
wrote a prologue, and that the public contributed some hundreds
of pounds. Was it fit, he asks, that she should receive, in this
eleemosynary form, a small portion of what was in truth a debt? Why, he
asks, instead of obtaining a pittance from charity, did she not live in
comfort and luxury on the proceeds of the sale of her ancestor's works?
But, Sir, will my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was caused by the
shortness of the term of copyright? Why, at that time, the duration of
copyright was longer than even he, at present, proposes to make it. The
monopoly lasted, not sixty years, but for ever. At the time at which
Milton's granddaughter asked charity, Milton's works were the exclusive
property of a bookseller. Within a few months of the day on which the
benefit was given at Garrick's theatre, the holder of the copyright of
Paradise Lost,--I think it was Tonson,--applied to the Court of Chancery
for an injunction against a bookseller who had published a cheap edition
of the great epic poem, and obtained the injunction. The representation
of Comus was, if I remember rightly, in 1750; the injunction in 1752.
Here, then, is a perfect illustration of the effect of long copyright.
Milton's works are the property of a single publisher. Everybody who
wants them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal proceedings.
Thousands who would gladly possess a copy of Paradise Lost, must forego
that great enjoyment. And what, in the meantime, is the situation of the
only person for whom we can suppose that the author, protected at such
a cost to the public, was at all interested? She is reduced to utter
destitution. Milton's works are under a monopoly. Milton's granddaughter
is starving. The reader is pillaged; but the writer's family is not
enriched. Society is taxed doubly. It has to give an exorbitant price
for the poems; and it has at the same time to give alms to the only
surviving descendant of the poet.
But this is not all. I think it right, Sir, to call the attention of
the House to an evil, which is perhaps more to be apprehended when an
author's copyright remains in the hands of his family, than when it is
transferred to booksellers. I seriously fear that, if such a measure
as this should be adopted, many valuable works will be either totally
suppressed or grievously mutilated. I can prove that this danger is
not chimerical; and I am quite certain that, if the danger be real,
the safeguards which my honourable and learned friend has devised are
altogether nugatory. That the danger is not chimerical may easily be
shown. Most of us, I am sure, have known persons who, very erroneously
as I think, but from the best motives, would not choose to reprint
Fielding's novels, or Gibbon's History of the Decline and Fall of the
Roman Empire. Some gentlemen may perhaps be of opinion that it would be
as well if Tom Jones and Gibbon's History were never reprinted. I will
not, then, dwell on these or similar cases. I will take cases respecting
which it is not likely that there will be any difference of opinion
here; cases, too, in which the danger of which I now speak is not matter
of supposition, but matter of fact. Take Richardson's novels. Whatever
I may, on the present occasion, think of my honourable and learned
friend's judgment as a legislator, I must always respect his judgment as
a critic. He will, I am sure, say that Richardson's novels are among
the most valuable, among the most original works in our language. No
writings have done more to raise the fame of English genius in foreign
countries. No writings are more deeply pathetic. No writings, those of
Shakspeare excepted, show more profound knowledge of the human heart. As
to their moral tendency, I can cite the most respectable testimony. Dr
Johnson describes Richardson as one who had taught the passions to move
at the command of virtue. My dear and honoured friend, Mr Wilberforce,
in his celebrated religious treatise, when speaking of the unchristian
tendency of the fashionable novels of the eighteenth century, distinctly
excepts Richardson from the censure. Another excellent person, whom I
can never mention without respect and kindness, Mrs Hannah More, often
declared in conversation, and has declared in one of her published
poems, that she first learned from the writings of Richardson those
principles of piety by which her life was guided. I may safely say that
books celebrated as works of art through the whole civilised world, and
praised for their moral tendency by Dr Johnson, by Mr Wilberforce, by
Mrs Hannah More, ought not to be suppressed. Sir, it is my firm belief,
that if the law had been what my honourable and learned friend proposes
to make it, they would have been suppressed. I remember Richardson's
grandson well; he was a clergyman in the city of London; he was a most
upright and excellent man; but he had conceived a strong prejudice
against works of fiction. He thought all novel-reading not only
frivolous but sinful. He said,--this I state on the authority of one of
his clerical brethren who is now a bishop,--he said that he had never
thought it right to read one of his grandfather's books. Suppose, Sir,
that the law had been what my honourable and learned friend would make
it. Suppose that the copyright of Richardson's novels had descended, as
might well have been the case, to this gentleman. I firmly believe,
that he would have thought it sinful to give them a wide circulation.
I firmly believe, that he would not for a hundred thousand pounds have
deliberately done what he thought sinful. He would not have reprinted
them. And what protection does my honourable and learned friend give to
the public in such a case? Why, Sir, what he proposes is this: if a book
is not reprinted during five years, any person who wishes to reprint
it may give notice in the London Gazette: the advertisement must be
repeated three times: a year must elapse; and then, if the proprietor of
the copyright does not put forth a new edition, he loses his exclusive
privilege. Now, what protection is this to the public? What is a new
edition? Does the law define the number of copies that make an edition?
Does it limit the price of a copy? Are twelve copies on large paper,
charged at thirty guineas each, an edition? It has been usual, when
monopolies have been granted, to prescribe numbers and to limit prices.
But I did not find the my honourable and learned friend proposes to do
so in the present case. And, without some such provision, the security
which he offers is manifestly illusory.
It is my conviction that, under
such a system as that which he recommends to us, a copy of Clarissa
would have been as rare as an Aldus or a Caxton.
I will give another instance. One of the most instructive, interesting,
and delightful books in our language is Boswell's Life of Johnson.
Now it is well known that Boswell's eldest son considered this book,
considered the whole relation of Boswell to Johnson, as a blot in the
escutcheon of the family. He thought, not perhaps altogether without
reason, that his father had exhibited himself in a ludicrous and
degrading light. And thus he became so sore and irritable that at last
he could not bear to hear the Life of Johnson mentioned. Suppose that
the law had been what my honourable and learned friend wishes to
make it. Suppose that the copyright of Boswell's Life of Johnson had
belonged, as it well might, during sixty years, to Boswell's eldest
son. What would have been the consequence? An unadulterated copy of the
finest biographical work in the world would have been as scarce as the
first edition of Camden's Britannia.
These are strong cases. I have shown you that, if the law had been what
you are now going to make it, the finest prose work of fiction in the
language, the finest biographical work in the language, would very
probably have been suppressed. But I have stated my case weakly. The
books which I have mentioned are singularly inoffensive books, books not
touching on any of those questions which drive even wise men beyond the
bounds of wisdom. There are books of a very different kind, books which
are the rallying points of great political and religious parties. What
is likely to happen if the copyright of one of the these books should by
descent or transfer come into the possession of some hostile zealot? I
will take a single instance. It is only fifty years since John Wesley
died; and all his works, if the law had been what my honourable and
learned friend wishes to make it, would now have been the property of
some person or other. The sect founded by Wesley is the most numerous,
the wealthiest, the most powerful, the most zealous of sects. In every
parliamentary election it is a matter of the greatest importance to
obtain the support of the Wesleyan Methodists. Their numerical strength
is reckoned by hundreds of thousands. They hold the memory of their
founder in the greatest reverence; and not without reason, for he was
unquestionably a great and a good man. To his authority they constantly
appeal. His works are in their eyes of the highest value. His doctrinal
writings they regard as containing the best system of theology ever
deduced from Scripture. His journals, interesting even to the common
reader, are peculiarly interesting to the Methodist: for they contain
the whole history of that singular polity which, weak and despised
in its beginning, is now, after the lapse of a century, so strong,
so flourishing, and so formidable. The hymns to which he gave his
imprimatur are a most important part of the public worship of his
followers. Now, suppose that the copyright of these works should belong
to some person who holds the memory of Wesley and the doctrines and
discipline of the Methodists in abhorrence. There are many such persons.
The Ecclesiastical Courts are at this very time sitting on the case of
a clergyman of the Established Church who refused Christian burial to a
child baptized by a Methodist preacher. I took up the other day a work
which is considered as among the most respectable organs of a large
and growing party in the Church of England, and there I saw John Wesley
designated as a forsworn priest. Suppose that the works of Wesley were
suppressed. Why, Sir, such a grievance would be enough to shake the
foundations of Government. Let gentlemen who are attached to the Church
reflect for a moment what their feelings would be if the Book of Common
Prayer were not to be reprinted for thirty or forty years, if the price
of a Book of Common Prayer were run up to five or ten guineas. And
then let them determine whether they will pass a law under which it is
possible, under which it is probable, that so intolerable a wrong may be
done to some sect consisting perhaps of half a million of persons.
I am so sensible, Sir, of the kindness with which the House has listened
to me, that I will not detain you longer. I will only say this, that if
the measure before us should pass, and should produce one-tenth part of
the evil which it is calculated to produce, and which I fully expect it
to produce, there will soon be a remedy, though of a very objectionable
kind. Just as the absurd acts which prohibited the sale of game were
virtually repealed by the poacher, just as many absurd revenue acts have
been virtually repealed by the smuggler, so will this law be virtually
repealed by piratical booksellers. At present the holder of copyright
has the public feeling on his side. Those who invade copyright are
regarded as knaves who take the bread out of the mouths of deserving
men. Everybody is well pleased to see them restrained by the law, and
compelled to refund their ill-gotten gains. No tradesman of good repute
will have anything to do with such disgraceful transactions. Pass this
law: and that feeling is at an end. Men very different from the present
race of piratical booksellers will soon infringe this intolerable
monopoly. Great masses of capital will be constantly employed in the
violation of the law. Every art will be employed to evade legal pursuit;
and the whole nation will be in the plot. On which side indeed should
the public sympathy be when the question is whether some book as
popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every
cottage, or whether it shall be confined to the libraries of the rich
for the advantage of the great-grandson of a bookseller who, a hundred
years before, drove a hard bargain for the copyright with the author
when in great distress? Remember too that, when once it ceases to be
considered as wrong and discreditable to invade literary property, no
person can say where the invasion will stop. The public seldom makes
nice distinctions. The wholesome copyright which now exists will share
in the disgrace and danger of the new copyright which you are about to
create. And you will find that, in attempting to impose unreasonable
restraints on the reprinting of the works of the dead, you have, to
a great extent, annulled those restraints which now prevent men from
pillaging and defrauding the living. If I saw, Sir, any probability that
this bill could be so amended in the Committee that my objections might
be removed, I would not divide the House in this stage. But I am so
fully convinced that no alteration which would not seem insupportable to
my honourable and learned friend, could render his measure supportable
to me, that I must move, though with regret, that this bill be read a
second time this day six months.
*****
COPYRIGHT. (APRIL 6, 1842) A SPEECH DELIVERED IN A COMMITTEE OF THE
HOUSE OF COMMONS ON THE 6TH OF APRIL 1842.
On the third of March 1842, Lord Mahon obtained permission to bring in
a bill to amend the Law of Copyright. This bill extended the term of
Copyright in a book to twenty-five years, reckoned from the death of the
author.
On the sixth of April the House went into Committee on the bill, and Mr
Greene took the Chair. Several divisions took place, of which the result
was that the plan suggested in the following Speech was, with some
modifications, adopted.
Mr Greene,--I have been amused and gratified by the remarks which
my noble friend (Lord Mahon. ) has made on the arguments by which I
prevailed on the last House of Commons to reject the bill introduced by
a very able and accomplished man, Mr Serjeant Talfourd. My noble friend
has done me a high and rare honour. For this is, I believe, the first
occasion on which a speech made in one Parliament has been answered in
another. I should not find it difficult to vindicate the soundness of
the reasons which I formerly urged, to set them in a clearer light,
and to fortify them by additional facts. But it seems to me that we had
better discuss the bill which is now on our table than the bill which
was there fourteen months ago. Glad I am to find that there is a very
wide difference between the two bills, and that my noble friend,
though he has tried to refute my arguments, has acted as if he had been
convinced by them. I objected to the term of sixty years as far too
long. My noble friend has cut that term down to twenty-five years. I
warned the House that, under the provisions of Mr Serjeant Talfourd's
bill, valuable works might not improbably be suppressed by the
representatives of authors. My noble friend has prepared a clause which,
as he thinks, will guard against that danger. I will not, therefore,
waste the time of the Committee by debating points which he has
conceded, but will proceed at once to the proper business of this
evening.
Sir, I have no objection to the principle of my noble friend's bill.
Indeed, I had no objection to the principle of the bill of last year. I
have long thought that the term of copyright ought to be extended. When
Mr Serjeant Talfourd moved for leave to bring in his bill, I did not
oppose the motion. Indeed I meant to vote for the second reading, and
to reserve what I had to say for the Committee. But the learned Serjeant
left me no choice. He, in strong language, begged that nobody who was
disposed to reduce the term of sixty years would divide with him. "Do
not," he said, "give me your support, if all that you mean to grant to
men of letters is a miserable addition of fourteen or fifteen years to
the present term. I do not wish for such support. I despise it. " Not
wishing to obtrude on the learned Serjeant a support which he despised,
I had no course left but to take the sense of the House on the second
reading. The circumstances are now different. My noble friend's bill
is not at present a good bill; but it may be improved into a very
good bill; nor will he, I am persuaded, withdraw it if it should be so
improved. He and I have the same object in view; but we differ as to the
best mode of attaining that object. We are equally desirous to extend
the protection now enjoyed by writers. In what way it may be extended
with most benefit to them and with least inconvenience to the public, is
the question.
The present state of the law is this. The author of a work has a certain
copyright in that work for a term of twenty-eight years. If he should
live more than twenty-eight years after the publication of the work, he
retains the copyright to the end of his life.
My noble friend does not propose to make any addition to the term
of twenty-eight years. But he proposes that the copyright shall last
twenty-five years after the author's death. Thus my noble friend makes
no addition to that term which is certain, but makes a very large
addition to that term which is uncertain.
My plan is different. I would made no addition to the uncertain term;
but I would make a large addition to the certain term. I propose to add
fourteen years to the twenty-eight years which the law now allows to an
author. His copyright will, in this way, last till his death, or till
the expiration of forty-two years, whichever shall first happen. And I
think that I shall be able to prove to the satisfaction of the Committee
that my plan will be more beneficial to literature and to literary men
than the plan of my noble friend.
It must surely, Sir, be admitted that the protection which we give to
books ought to be distributed as evenly as possible, that every book
should have a fair share of that protection, and no book more than a
fair share. It would evidently be absurd to put tickets into a wheel,
with different numbers marked upon them, and to make writers draw, one
a term of twenty-eight years, another a term of fifty, another a term of
ninety. And yet this sort of lottery is what my noble friend proposes to
establish. I know that we cannot altogether exclude chance. You have two
terms of copyright; one certain, the other uncertain; and we cannot, I
admit, get rid of the uncertain term. It is proper, no doubt, that an
author's copyright should last during his life. But, Sir, though we
cannot altogether exclude chance, we can very much diminish the share
which chance must have in distributing the recompense which we wish
to give to genius and learning. By every addition which we make to the
certain term we diminish the influence of chance; by every addition
which we make to the uncertain term we increase the influence of chance.
I shall make myself best understood by putting cases. Take two eminent
female writers, who died within our own memory, Madame D'Arblay and Miss
Austen. As the law now stands, Miss Austen's charming novels would have
only from twenty-eight to thirty-three years of copyright. For that
extraordinary woman died young: she died before her genius was fully
appreciated by the world. Madame D'Arblay outlived the whole generation
to which she belonged. The copyright of her celebrated novel, Evelina,
lasted, under the present law, sixty-two years. Surely this inequality
is sufficiently great--sixty-two years of copyright for Evelina, only
twenty-eight for Persuasion. But to my noble friend this inequality
seems not great enough. He proposes to add twenty-five years to Madame
D'Arblay's term, and not a single day to Miss Austen's term. He would
give to Persuasion a copyright of only twenty-eight years, as at
present, and to Evelina a copyright more than three times as long, a
copyright of eighty-seven years. Now, is this reasonable? See, on the
other hand, the operation of my plan. I make no addition at all to
Madame D'Arblay's term of sixty-two years, which is, in my opinion,
quite long enough; but I extend Miss Austen's term to forty-two years,
which is, in my opinion, not too much. You see, Sir, that at present
chance has too much sway in this matter: that at present the protection
which the State gives to letters is very unequally given. You see that
if my noble friend's plan be adopted, more will be left to chance than
under the present system, and you will have such inequalities as are
unknown under the present system. You see also that, under the system
which I recommend, we shall have, not perfect certainty, not perfect
equality, but much less uncertainty and inequality than at present.
But this is not all. My noble friend's plan is not merely to institute
a lottery in which some writers will draw prizes and some will draw
blanks. It is much worse than this. His lottery is so contrived that, in
the vast majority of cases, the blanks will fall to the best books, and
the prizes to books of inferior merit.
Take Shakspeare. My noble friend gives a longer protection than I should
give to Love's Labour's Lost, and Pericles, Prince of Tyre; but he gives
a shorter protection than I should give to Othello and Macbeth.
Take Milton. Milton died in 1674. The copyrights of Milton's great
works would, according to my noble friend's plan, expire in 1699. Comus
appeared in 1634, the Paradise Lost in 1668. To Comus, then, my noble
friend would give sixty-five years of copyright, and to the Paradise
Lost only thirty-one years. Is that reasonable? Comus is a noble
poem: but who would rank it with the Paradise Lost? My plan would give
forty-two years both to the Paradise Lost and to Comus.
Let us pass on from Milton to Dryden. My noble friend would give
more than sixty years of copyright to Dryden's worst works; to the
encomiastic verses on Oliver Cromwell, to the Wild Gallant, to the Rival
Ladies, to other wretched pieces as bad as anything written by Flecknoe
or Settle: but for Theodore and Honoria, for Tancred and Sigismunda, for
Cimon and Iphigenia, for Palamon and Arcite, for Alexander's Feast, my
noble friend thinks a copyright of twenty-eight years sufficient. Of
all Pope's works, that to which my noble friend would give the largest
measure of protection is the volume of Pastorals, remarkable only as the
production of a boy. Johnson's first work was a Translation of a Book of
Travels in Abyssinia, published in 1735. It was so poorly executed that
in his later years he did not like to hear it mentioned. Boswell once
picked up a copy of it, and told his friend that he had done so. "Do not
talk about it," said Johnson: "it is a thing to be forgotten. " To this
performance my noble friend would give protection during the enormous
term of seventy-five years. To the Lives of the Poets he would give
protection during about thirty years. Well; take Henry Fielding; it
matters not whom I take, but take Fielding. His early works are read
only by the curious, and would not be read even by the curious, but for
the fame which he acquired in the latter part of his life by works of
a very different kind. What is the value of the Temple Beau, of the
Intriguing Chambermaid, of half a dozen other plays of which few
gentlemen have even heard the names? Yet to these worthless pieces my
noble friend would give a term of copyright longer by more than twenty
years than that which he would give to Tom Jones and Amelia.
Go on to Burke. His little tract, entitled the Vindication of Natural
Society is certainly not without merit; but it would not be remembered
in our days if it did not bear the name of Burke. To this tract my noble
friend would give a copyright of near seventy years. But to the great
work on the French Revolution, to the Appeal from the New to the Old
Whigs, to the letters on the Regicide Peace, he would give a copyright
of thirty years or little more.
And, Sir observe that I am not selecting here and there extraordinary
instances in order to make up the semblance of a case. I am taking the
greatest names of our literature in chronological order. Go to other
nations; go to remote ages; you will still find the general rule the
same. There was no copyright at Athens or Rome; but the history of the
Greek and Latin literature illustrates my argument quite as well as if
copyright had existed in ancient times. Of all the plays of Sophocles,
the one to which the plan of my noble friend would have given the
most scanty recompense would have been that wonderful masterpiece, the
Oedipus at Colonos. Who would class together the Speech of Demosthenes
against his Guardians, and the Speech for the Crown? My noble friend,
indeed, would not class them together. For to the Speech against the
Guardians he would give a copyright of near seventy years, and to the
incomparable Speech for the Crown a copyright of less than half that
length. Go to Rome. My noble friend would give more than twice as long a
term to Cicero's juvenile declamation in defence of Roscius Amerinus as
to the Second Philippic. Go to France. My noble friend would give a far
longer term to Racine's Freres Ennemis than to Athalie, and to Moliere's
Etourdi than to Tartuffe. Go to Spain. My noble friend would give a
longer term to forgotten works of Cervantes, works which nobody now
reads, than to Don Quixote. Go to Germany. According to my noble
friend's plan, of all the works of Schiller the Robbers would be the
most favoured: of all the works of Goethe, the Sorrows of Werter would
be the most favoured. I thank the Committee for listening so kindly to
this long enumeration. Gentlemen will perceive, I am sure, that it is
not from pedantry that I mention the names of so many books and authors.
But just as, in our debates on civil affairs, we constantly draw
illustrations from civil history, we must, in a debate about literary
property, draw our illustrations from literary history. Now, Sir, I
have, I think, shown from literary history that the effect of my
noble friend's plan would be to give to crude and imperfect works, to
third-rate and fourth-rate works, a great advantage over the highest
productions of genius. It is impossible to account for the facts which I
have laid before you by attributing them to mere accident. Their number
is too great, their character too uniform. We must seek for some other
explanation; and we shall easily find one.
It is the law of our nature that the mind shall attain its full power
by slow degrees; and this is especially true of the most vigorous minds.
Young men, no doubt, have often produced works of great merit; but it
would be impossible to name any writer of the first order whose juvenile
performances were his best. That all the most valuable books of history,
of philology, of physical and metaphysical science, of divinity, of
political economy, have been produced by men of mature years will hardly
be disputed. The case may not be quite so clear as respects works of
the imagination. And yet I know no work of the imagination of the very
highest class that was ever, in any age or country, produced by a
man under thirty-five. Whatever powers a youth may have received from
nature, it is impossible that his taste and judgment can be ripe, that
his mind can be richly stored with images, that he can have observed
the vicissitudes of life, that he can have studied the nicer shades of
character. How, as Marmontel very sensibly said, is a person to paint
portraits who has never seen faces? On the whole, I believe that I may,
without fear of contradiction, affirm this, that of the good books now
extant in the world more than nineteen-twentieths were published after
the writers had attained the age of forty. If this be so, it is evident
that the plan of my noble friend is framed on a vicious principle. For,
while he gives to juvenile productions a very much larger protection
than they now enjoy, he does comparatively little for the works of men
in the full maturity of their powers, and absolutely nothing for any
work which is published during the last three years of the life of the
writer. For, by the existing law, the copyright of such a work lasts
twenty-eight years from the publication; and my noble friend gives only
twenty-five years, to be reckoned from the writer's death.
What I recommend is that the certain term, reckoned from the date of
publication, shall be forty-two years instead of twenty-eight years. In
this arrangement there is no uncertainty, no inequality. The advantage
which I propose to give will be the same to every book. No work will
have so long a copyright as my noble friend gives to some books, or so
short a copyright as he gives to others. No copyright will last ninety
years. No copyright will end in twenty-eight years. To every book
published in the course of the last seventeen years of a writer's life
I give a longer term of copyright than my noble friend gives; and I
am confident that no person versed in literary history will deny
this,--that in general the most valuable works of an author are
published in the course of the last seventeen years of his life. I will
rapidly enumerate a few, and but a few, of the great works of English
writers to which my plan is more favourable than my noble friend's plan.
To Lear, to Macbeth, to Othello, to the Fairy Queen, to the Paradise
Lost, to Bacon's Novum Organum and De Augmentis, to Locke's Essay on
the Human Understanding, to Clarendon's History, to Hume's History, to
Gibbon's History, to Smith's Wealth of Nations, to Addison's Spectators,
to almost all the great works of Burke, to Clarissa and Sir Charles
Grandison, to Joseph Andrews, Tom Jones and Amelia, and, with the single
exception of Waverley, to all the novels of Sir Walter Scott, I give a
longer term of copyright than my noble friend gives. Can he match that
list? Does not that list contain what England has produced greatest in
many various ways--poetry, philosophy, history, eloquence, wit, skilful
portraiture of life and manners? I confidently therefore call on the
Committee to take my plan in preference to the plan of my noble friend.
I have shown that the protection which he proposes to give to letters is
unequal, and unequal in the worst way. I have shown that his plan is to
give protection to books in inverse proportion to their merit.
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued. For the existing law gives an author
copyright during his natural life; nor do I propose to invade that
privilege, which I should, on the contrary, be prepared to defend
strenuously against any assailant. The only point in issue between
us is, how long after an author's death the State shall recognise a
copyright in his representatives and assigns; and it can, I think,
hardly be disputed by any rational man that this is a point which the
legislature is free to determine in the way which may appear to be most
conducive to the general good.
We may now, therefore, I think, descend from these high regions, where
we are in danger of being lost in the clouds, to firm ground and clear
light. Let us look at this question like legislators, and after fairly
balancing conveniences and inconveniences, pronounce between the
existing law of copyright, and the law now proposed to us. The question
of copyright, Sir, like most questions of civil prudence, is neither
black nor white, but grey. The system of copyright has great advantages
and great disadvantages; and it is our business to ascertain what these
are, and then to make an arrangement under which the advantages may be
as far as possible secured, and the disadvantages as far as possible
excluded. The charge which I bring against my honourable and learned
friend's bill is this, that it leaves the advantages nearly what they
are at present, and increases the disadvantages at least fourfold.
The advantages arising from a system of copyright are obvious. It is
desirable that we should have a supply of good books; we cannot have
such a supply unless men of letters are liberally remunerated; and the
least objectionable way of remunerating them is by means of copyright.
You cannot depend for literary instruction and amusement on the
leisure of men occupied in the pursuits of active life. Such men may
occasionally produce compositions of great merit. But you must not look
to such men for works which require deep meditation and long research.
Works of that kind you can expect only from persons who make literature
the business of their lives. Of these persons few will be found among
the rich and the noble. The rich and the noble are not impelled to
intellectual exertion by necessity. They may be impelled to intellectual
exertion by the desire of distinguishing themselves, or by the desire
of benefiting the community. But it is generally within these walls that
they seek to signalise themselves and to serve their fellow-creatures.
Both their ambition and their public spirit, in a country like this,
naturally take a political turn. It is then on men whose profession is
literature, and whose private means are not ample, that you must rely
for a supply of valuable books. Such men must be remunerated for their
literary labour. And there are only two ways in which they can be
remunerated. One of those ways is patronage; the other is copyright.
There have been times in which men of letters looked, not to the public,
but to the government, or to a few great men, for the reward of their
exertions. It was thus in the time of Maecenas and Pollio at Rome,
of the Medici at Florence, of Louis the Fourteenth in France, of Lord
Halifax and Lord Oxford in this country. Now, Sir, I well know that
there are cases in which it is fit and graceful, nay, in which it is a
sacred duty to reward the merits or to relieve the distresses of men of
genius by the exercise of this species of liberality. But these cases
are exceptions. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught
to look for their daily bread to the favour of ministers and nobles. I
can conceive no system more certain to turn those minds which are formed
by nature to be the blessings and ornaments of our species into public
scandals and pests.
We have, then, only one resource left. We must betake ourselves to
copyright, be the inconveniences of copyright what they may. Those
inconveniences, in truth, are neither few nor small. Copyright is
monopoly, and produces all the effects which the general voice of
mankind attributes to monopoly. My honourable and learned friend
talks very contemptuously of those who are led away by the theory that
monopoly makes things dear. That monopoly makes things dear is certainly
a theory, as all the great truths which have been established by the
experience of all ages and nations, and which are taken for granted in
all reasonings, may be said to be theories. It is a theory in the same
sense in which it is a theory that day and night follow each other, that
lead is heavier than water, that bread nourishes, that arsenic poisons,
that alcohol intoxicates. If, as my honourable and learned friend seems
to think, the whole world is in the wrong on this point, if the real
effect of monopoly is to make articles good and cheap, why does he stop
short in his career of change? Why does he limit the operation of so
salutary a principle to sixty years? Why does he consent to anything
short of a perpetuity? He told us that in consenting to anything short
of a perpetuity he was making a compromise between extreme right and
expediency. But if his opinion about monopoly be correct, extreme right
and expediency would coincide. Or rather, why should we not restore the
monopoly of the East India trade to the East India Company? Why should
we not revive all those old monopolies which, in Elizabeth's reign,
galled our fathers so severely that, maddened by intolerable wrong, they
opposed to their sovereign a resistance before which her haughty spirit
quailed for the first and for the last time? Was it the cheapness and
excellence of commodities that then so violently stirred the indignation
of the English people? I believe, Sir, that I may with safety take it
for granted that the effect of monopoly generally is to make articles
scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honourable friend to find out any distinction
between copyright and other privileges of the same kind; any reason why
a monopoly of books should produce an effect directly the reverse of
that which was produced by the East India Company's monopoly of tea, or
by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It
is good that authors should be remunerated; and the least exceptionable
way of remunerating them is by a monopoly. Yet monopoly is an evil. For
the sake of the good we must submit to the evil; but the evil ought not
to last a day longer than is necessary for the purpose of securing the
good.
Now, I will not affirm that the existing law is perfect, that it
exactly hits the point at which the monopoly ought to cease; but this
I confidently say, that the existing law is very much nearer that point
than the law proposed by my honourable and learned friend. For consider
this; the evil effects of the monopoly are proportioned to the length
of its duration. But the good effects for the sake of which we bear
with the evil effects are by no means proportioned to the length of its
duration. A monopoly of sixty years produces twice as much evil as
a monopoly of thirty years, and thrice as much evil as a monopoly of
twenty years. But it is by no means the fact that a posthumous monopoly
of sixty years gives to an author thrice as much pleasure and thrice
as strong a motive as a posthumous monopoly of twenty years. On the
contrary, the difference is so small as to be hardly perceptible. We
all know how faintly we are affected by the prospect of very distant
advantages, even when they are advantages which we may reasonably hope
that we shall ourselves enjoy. But an advantage that is to be enjoyed
more than half a century after we are dead, by somebody, we know not by
whom, perhaps by somebody unborn, by somebody utterly unconnected with
us, is really no motive at all to action. It is very probable that in
the course of some generations land in the unexplored and unmapped heart
of the Australasian continent will be very valuable. But there is none
of us who would lay down five pounds for a whole province in the heart
of the Australasian continent. We know, that neither we, nor anybody for
whom we care, will ever receive a farthing of rent from such a province.
And a man is very little moved by the thought that in the year 2000 or
2100, somebody who claims through him will employ more shepherds than
Prince Esterhazy, and will have the finest house and gallery of pictures
at Victoria or Sydney. Now, this is the sort of boon which my honourable
and learned friend holds out to authors. Considered as a boon to them,
it is a mere nullity, but considered as an impost on the public, it is
no nullity, but a very serious and pernicious reality. I will take an
example. Dr Johnson died fifty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr Johnson's works. Who that somebody would be it is
impossible to say; but we may venture to guess. I guess, then, that
it would have been some bookseller, who was the assign of another
bookseller, who was the grandson of a third bookseller, who had bought
the copyright from Black Frank, the doctor's servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright
would exist in 1841 have been a source of gratification to Johnson?
Would it have stimulated his exertions? Would it have once drawn him out
of his bed before noon? Would it have once cheered him under a fit of
the spleen? Would it have induced him to give us one more allegory, one
more life of a poet, one more imitation of Juvenal? I firmly believe
not. I firmly believe that a hundred years ago, when he was writing our
debates for the Gentleman's Magazine, he would very much rather have had
twopence to buy a plate of shin of beef at a cook's shop underground.
Considered as a reward to him, the difference between a twenty years'
and sixty years' term of posthumous copyright would have been nothing or
next to nothing. But is the difference nothing to us? I can buy Rasselas
for sixpence; I might have had to give five shillings for it. I can buy
the Dictionary, the entire genuine Dictionary, for two guineas, perhaps
for less; I might have had to give five or six guineas for it. Do I
grudge this to a man like Dr Johnson? Not at all. Show me that the
prospect of this boon roused him to any vigorous effort, or sustained
his spirits under depressing circumstances, and I am quite willing to
pay the price of such an object, heavy as that price is. But what I do
complain of is that my circumstances are to be worse, and Johnson's none
the better; that I am to give five pounds for what to him was not worth
a farthing.
The principle of copyright is this. It is a tax on readers for the
purpose of giving a bounty to writers. The tax is an exceedingly bad
one; it is a tax on one of the most innocent and most salutary of human
pleasures; and never let us forget, that a tax on innocent pleasures
is a premium on vicious pleasures. I admit, however, the necessity of
giving a bounty to genius and learning. In order to give such a bounty,
I willingly submit even to this severe and burdensome tax. Nay, I am
ready to increase the tax, if it can be shown that by so doing I should
proportionally increase the bounty. My complaint is, that my honourable
and learned friend doubles, triples, quadruples, the tax, and makes
scarcely any perceptible addition to the bounty. Why, Sir, what is the
additional amount of taxation which would have been levied on the public
for Dr Johnson's works alone, if my honourable and learned friend's
bill had been the law of the land? I have not data sufficient to form
an opinion. But I am confident that the taxation on his Dictionary alone
would have amounted to many thousands of pounds. In reckoning the whole
additional sum which the holders of his copyrights would have taken
out of the pockets of the public during the last half century at twenty
thousand pounds, I feel satisfied that I very greatly underrate it. Now,
I again say that I think it but fair that we should pay twenty thousand
pounds in consideration of twenty thousand pounds' worth of pleasure and
encouragement received by Dr Johnson. But I think it very hard that we
should pay twenty thousand pounds for what he would not have valued at
five shillings.
My honourable and learned friend dwells on the claims of the posterity
of great writers. Undoubtedly, Sir, it would be very pleasing to see a
descendant of Shakespeare living in opulence on the fruits of his great
ancestor's genius. A house maintained in splendour by such a patrimony
would be a more interesting and striking object than Blenheim is to us,
or than Strathfieldsaye will be to our children. But, unhappily, it is
scarcely possible that, under any system, such a thing can come to pass.
My honourable and learned friend does not propose that copyright shall
descend to the eldest son, or shall be bound up by irrecoverable entail.
It is to be merely personal property. It is therefore highly improbable
that it will descend during sixty years or half that term from parent to
child. The chance is that more people than one will have an interest in
it. They will in all probability sell it and divide the proceeds. The
price which a bookseller will give for it will bear no proportion to the
sum which he will afterwards draw from the public, if his speculation
proves successful. He will give little, if anything, more for a term of
sixty years than for a term of thirty or five and twenty. The present
value of a distant advantage is always small; but when there is great
room to doubt whether a distant advantage will be any advantage at all,
the present value sink to almost nothing. Such is the inconstancy of
the public taste that no sensible man will venture to pronounce, with
confidence, what the sale of any book published in our days will be
in the years between 1890 and 1900. The whole fashion of thinking and
writing has often undergone a change in a much shorter period than
that to which my honourable and learned friend would extend posthumous
copyright. What would have been considered the best literary property
in the earlier part of Charles the Second's reign? I imagine Cowley's
Poems. Overleap sixty years, and you are in the generation of which Pope
asked, "Who now reads Cowley? " What works were ever expected with more
impatience by the public than those of Lord Bolingbroke, which appeared,
I think, in 1754? In 1814, no bookseller would have thanked you for the
copyright of them all, if you had offered it to him for nothing. What
would Paternoster Row give now for the copyright of Hayley's Triumphs of
Temper, so much admired within the memory of many people still living? I
say, therefore, that, from the very nature of literary property, it will
almost always pass away from an author's family; and I say, that the
price given for it to the family will bear a very small proportion to
the tax which the purchaser, if his speculation turns out well, will in
the course of a long series of years levy on the public.
If, Sir, I wished to find a strong and perfect illustration of the
effects which I anticipate from long copyright, I should select,--my
honourable and learned friend will be surprised,--I should select the
case of Milton's granddaughter. As often as this bill has been under
discussion, the fate of Milton's granddaughter has been brought forward
by the advocates of monopoly. My honourable and learned friend has
repeatedly told the story with great eloquence and effect. He has
dilated on the sufferings, on the abject poverty, of this ill-fated
woman, the last of an illustrious race. He tells us that, in the
extremity of her distress, Garrick gave her a benefit, that Johnson
wrote a prologue, and that the public contributed some hundreds
of pounds. Was it fit, he asks, that she should receive, in this
eleemosynary form, a small portion of what was in truth a debt? Why, he
asks, instead of obtaining a pittance from charity, did she not live in
comfort and luxury on the proceeds of the sale of her ancestor's works?
But, Sir, will my honourable and learned friend tell me that this event,
which he has so often and so pathetically described, was caused by the
shortness of the term of copyright? Why, at that time, the duration of
copyright was longer than even he, at present, proposes to make it. The
monopoly lasted, not sixty years, but for ever. At the time at which
Milton's granddaughter asked charity, Milton's works were the exclusive
property of a bookseller. Within a few months of the day on which the
benefit was given at Garrick's theatre, the holder of the copyright of
Paradise Lost,--I think it was Tonson,--applied to the Court of Chancery
for an injunction against a bookseller who had published a cheap edition
of the great epic poem, and obtained the injunction. The representation
of Comus was, if I remember rightly, in 1750; the injunction in 1752.
Here, then, is a perfect illustration of the effect of long copyright.
Milton's works are the property of a single publisher. Everybody who
wants them must buy them at Tonson's shop, and at Tonson's price.
Whoever attempts to undersell Tonson is harassed with legal proceedings.
Thousands who would gladly possess a copy of Paradise Lost, must forego
that great enjoyment. And what, in the meantime, is the situation of the
only person for whom we can suppose that the author, protected at such
a cost to the public, was at all interested? She is reduced to utter
destitution. Milton's works are under a monopoly. Milton's granddaughter
is starving. The reader is pillaged; but the writer's family is not
enriched. Society is taxed doubly. It has to give an exorbitant price
for the poems; and it has at the same time to give alms to the only
surviving descendant of the poet.
But this is not all. I think it right, Sir, to call the attention of
the House to an evil, which is perhaps more to be apprehended when an
author's copyright remains in the hands of his family, than when it is
transferred to booksellers. I seriously fear that, if such a measure
as this should be adopted, many valuable works will be either totally
suppressed or grievously mutilated. I can prove that this danger is
not chimerical; and I am quite certain that, if the danger be real,
the safeguards which my honourable and learned friend has devised are
altogether nugatory. That the danger is not chimerical may easily be
shown. Most of us, I am sure, have known persons who, very erroneously
as I think, but from the best motives, would not choose to reprint
Fielding's novels, or Gibbon's History of the Decline and Fall of the
Roman Empire. Some gentlemen may perhaps be of opinion that it would be
as well if Tom Jones and Gibbon's History were never reprinted. I will
not, then, dwell on these or similar cases. I will take cases respecting
which it is not likely that there will be any difference of opinion
here; cases, too, in which the danger of which I now speak is not matter
of supposition, but matter of fact. Take Richardson's novels. Whatever
I may, on the present occasion, think of my honourable and learned
friend's judgment as a legislator, I must always respect his judgment as
a critic. He will, I am sure, say that Richardson's novels are among
the most valuable, among the most original works in our language. No
writings have done more to raise the fame of English genius in foreign
countries. No writings are more deeply pathetic. No writings, those of
Shakspeare excepted, show more profound knowledge of the human heart. As
to their moral tendency, I can cite the most respectable testimony. Dr
Johnson describes Richardson as one who had taught the passions to move
at the command of virtue. My dear and honoured friend, Mr Wilberforce,
in his celebrated religious treatise, when speaking of the unchristian
tendency of the fashionable novels of the eighteenth century, distinctly
excepts Richardson from the censure. Another excellent person, whom I
can never mention without respect and kindness, Mrs Hannah More, often
declared in conversation, and has declared in one of her published
poems, that she first learned from the writings of Richardson those
principles of piety by which her life was guided. I may safely say that
books celebrated as works of art through the whole civilised world, and
praised for their moral tendency by Dr Johnson, by Mr Wilberforce, by
Mrs Hannah More, ought not to be suppressed. Sir, it is my firm belief,
that if the law had been what my honourable and learned friend proposes
to make it, they would have been suppressed. I remember Richardson's
grandson well; he was a clergyman in the city of London; he was a most
upright and excellent man; but he had conceived a strong prejudice
against works of fiction. He thought all novel-reading not only
frivolous but sinful. He said,--this I state on the authority of one of
his clerical brethren who is now a bishop,--he said that he had never
thought it right to read one of his grandfather's books. Suppose, Sir,
that the law had been what my honourable and learned friend would make
it. Suppose that the copyright of Richardson's novels had descended, as
might well have been the case, to this gentleman. I firmly believe,
that he would have thought it sinful to give them a wide circulation.
I firmly believe, that he would not for a hundred thousand pounds have
deliberately done what he thought sinful. He would not have reprinted
them. And what protection does my honourable and learned friend give to
the public in such a case? Why, Sir, what he proposes is this: if a book
is not reprinted during five years, any person who wishes to reprint
it may give notice in the London Gazette: the advertisement must be
repeated three times: a year must elapse; and then, if the proprietor of
the copyright does not put forth a new edition, he loses his exclusive
privilege. Now, what protection is this to the public? What is a new
edition? Does the law define the number of copies that make an edition?
Does it limit the price of a copy? Are twelve copies on large paper,
charged at thirty guineas each, an edition? It has been usual, when
monopolies have been granted, to prescribe numbers and to limit prices.
But I did not find the my honourable and learned friend proposes to do
so in the present case. And, without some such provision, the security
which he offers is manifestly illusory.
It is my conviction that, under
such a system as that which he recommends to us, a copy of Clarissa
would have been as rare as an Aldus or a Caxton.
I will give another instance. One of the most instructive, interesting,
and delightful books in our language is Boswell's Life of Johnson.
Now it is well known that Boswell's eldest son considered this book,
considered the whole relation of Boswell to Johnson, as a blot in the
escutcheon of the family. He thought, not perhaps altogether without
reason, that his father had exhibited himself in a ludicrous and
degrading light. And thus he became so sore and irritable that at last
he could not bear to hear the Life of Johnson mentioned. Suppose that
the law had been what my honourable and learned friend wishes to
make it. Suppose that the copyright of Boswell's Life of Johnson had
belonged, as it well might, during sixty years, to Boswell's eldest
son. What would have been the consequence? An unadulterated copy of the
finest biographical work in the world would have been as scarce as the
first edition of Camden's Britannia.
These are strong cases. I have shown you that, if the law had been what
you are now going to make it, the finest prose work of fiction in the
language, the finest biographical work in the language, would very
probably have been suppressed. But I have stated my case weakly. The
books which I have mentioned are singularly inoffensive books, books not
touching on any of those questions which drive even wise men beyond the
bounds of wisdom. There are books of a very different kind, books which
are the rallying points of great political and religious parties. What
is likely to happen if the copyright of one of the these books should by
descent or transfer come into the possession of some hostile zealot? I
will take a single instance. It is only fifty years since John Wesley
died; and all his works, if the law had been what my honourable and
learned friend wishes to make it, would now have been the property of
some person or other. The sect founded by Wesley is the most numerous,
the wealthiest, the most powerful, the most zealous of sects. In every
parliamentary election it is a matter of the greatest importance to
obtain the support of the Wesleyan Methodists. Their numerical strength
is reckoned by hundreds of thousands. They hold the memory of their
founder in the greatest reverence; and not without reason, for he was
unquestionably a great and a good man. To his authority they constantly
appeal. His works are in their eyes of the highest value. His doctrinal
writings they regard as containing the best system of theology ever
deduced from Scripture. His journals, interesting even to the common
reader, are peculiarly interesting to the Methodist: for they contain
the whole history of that singular polity which, weak and despised
in its beginning, is now, after the lapse of a century, so strong,
so flourishing, and so formidable. The hymns to which he gave his
imprimatur are a most important part of the public worship of his
followers. Now, suppose that the copyright of these works should belong
to some person who holds the memory of Wesley and the doctrines and
discipline of the Methodists in abhorrence. There are many such persons.
The Ecclesiastical Courts are at this very time sitting on the case of
a clergyman of the Established Church who refused Christian burial to a
child baptized by a Methodist preacher. I took up the other day a work
which is considered as among the most respectable organs of a large
and growing party in the Church of England, and there I saw John Wesley
designated as a forsworn priest. Suppose that the works of Wesley were
suppressed. Why, Sir, such a grievance would be enough to shake the
foundations of Government. Let gentlemen who are attached to the Church
reflect for a moment what their feelings would be if the Book of Common
Prayer were not to be reprinted for thirty or forty years, if the price
of a Book of Common Prayer were run up to five or ten guineas. And
then let them determine whether they will pass a law under which it is
possible, under which it is probable, that so intolerable a wrong may be
done to some sect consisting perhaps of half a million of persons.
I am so sensible, Sir, of the kindness with which the House has listened
to me, that I will not detain you longer. I will only say this, that if
the measure before us should pass, and should produce one-tenth part of
the evil which it is calculated to produce, and which I fully expect it
to produce, there will soon be a remedy, though of a very objectionable
kind. Just as the absurd acts which prohibited the sale of game were
virtually repealed by the poacher, just as many absurd revenue acts have
been virtually repealed by the smuggler, so will this law be virtually
repealed by piratical booksellers. At present the holder of copyright
has the public feeling on his side. Those who invade copyright are
regarded as knaves who take the bread out of the mouths of deserving
men. Everybody is well pleased to see them restrained by the law, and
compelled to refund their ill-gotten gains. No tradesman of good repute
will have anything to do with such disgraceful transactions. Pass this
law: and that feeling is at an end. Men very different from the present
race of piratical booksellers will soon infringe this intolerable
monopoly. Great masses of capital will be constantly employed in the
violation of the law. Every art will be employed to evade legal pursuit;
and the whole nation will be in the plot. On which side indeed should
the public sympathy be when the question is whether some book as
popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every
cottage, or whether it shall be confined to the libraries of the rich
for the advantage of the great-grandson of a bookseller who, a hundred
years before, drove a hard bargain for the copyright with the author
when in great distress? Remember too that, when once it ceases to be
considered as wrong and discreditable to invade literary property, no
person can say where the invasion will stop. The public seldom makes
nice distinctions. The wholesome copyright which now exists will share
in the disgrace and danger of the new copyright which you are about to
create. And you will find that, in attempting to impose unreasonable
restraints on the reprinting of the works of the dead, you have, to
a great extent, annulled those restraints which now prevent men from
pillaging and defrauding the living. If I saw, Sir, any probability that
this bill could be so amended in the Committee that my objections might
be removed, I would not divide the House in this stage. But I am so
fully convinced that no alteration which would not seem insupportable to
my honourable and learned friend, could render his measure supportable
to me, that I must move, though with regret, that this bill be read a
second time this day six months.
*****
COPYRIGHT. (APRIL 6, 1842) A SPEECH DELIVERED IN A COMMITTEE OF THE
HOUSE OF COMMONS ON THE 6TH OF APRIL 1842.
On the third of March 1842, Lord Mahon obtained permission to bring in
a bill to amend the Law of Copyright. This bill extended the term of
Copyright in a book to twenty-five years, reckoned from the death of the
author.
On the sixth of April the House went into Committee on the bill, and Mr
Greene took the Chair. Several divisions took place, of which the result
was that the plan suggested in the following Speech was, with some
modifications, adopted.
Mr Greene,--I have been amused and gratified by the remarks which
my noble friend (Lord Mahon. ) has made on the arguments by which I
prevailed on the last House of Commons to reject the bill introduced by
a very able and accomplished man, Mr Serjeant Talfourd. My noble friend
has done me a high and rare honour. For this is, I believe, the first
occasion on which a speech made in one Parliament has been answered in
another. I should not find it difficult to vindicate the soundness of
the reasons which I formerly urged, to set them in a clearer light,
and to fortify them by additional facts. But it seems to me that we had
better discuss the bill which is now on our table than the bill which
was there fourteen months ago. Glad I am to find that there is a very
wide difference between the two bills, and that my noble friend,
though he has tried to refute my arguments, has acted as if he had been
convinced by them. I objected to the term of sixty years as far too
long. My noble friend has cut that term down to twenty-five years. I
warned the House that, under the provisions of Mr Serjeant Talfourd's
bill, valuable works might not improbably be suppressed by the
representatives of authors. My noble friend has prepared a clause which,
as he thinks, will guard against that danger. I will not, therefore,
waste the time of the Committee by debating points which he has
conceded, but will proceed at once to the proper business of this
evening.
Sir, I have no objection to the principle of my noble friend's bill.
Indeed, I had no objection to the principle of the bill of last year. I
have long thought that the term of copyright ought to be extended. When
Mr Serjeant Talfourd moved for leave to bring in his bill, I did not
oppose the motion. Indeed I meant to vote for the second reading, and
to reserve what I had to say for the Committee. But the learned Serjeant
left me no choice. He, in strong language, begged that nobody who was
disposed to reduce the term of sixty years would divide with him. "Do
not," he said, "give me your support, if all that you mean to grant to
men of letters is a miserable addition of fourteen or fifteen years to
the present term. I do not wish for such support. I despise it. " Not
wishing to obtrude on the learned Serjeant a support which he despised,
I had no course left but to take the sense of the House on the second
reading. The circumstances are now different. My noble friend's bill
is not at present a good bill; but it may be improved into a very
good bill; nor will he, I am persuaded, withdraw it if it should be so
improved. He and I have the same object in view; but we differ as to the
best mode of attaining that object. We are equally desirous to extend
the protection now enjoyed by writers. In what way it may be extended
with most benefit to them and with least inconvenience to the public, is
the question.
The present state of the law is this. The author of a work has a certain
copyright in that work for a term of twenty-eight years. If he should
live more than twenty-eight years after the publication of the work, he
retains the copyright to the end of his life.
My noble friend does not propose to make any addition to the term
of twenty-eight years. But he proposes that the copyright shall last
twenty-five years after the author's death. Thus my noble friend makes
no addition to that term which is certain, but makes a very large
addition to that term which is uncertain.
My plan is different. I would made no addition to the uncertain term;
but I would make a large addition to the certain term. I propose to add
fourteen years to the twenty-eight years which the law now allows to an
author. His copyright will, in this way, last till his death, or till
the expiration of forty-two years, whichever shall first happen. And I
think that I shall be able to prove to the satisfaction of the Committee
that my plan will be more beneficial to literature and to literary men
than the plan of my noble friend.
It must surely, Sir, be admitted that the protection which we give to
books ought to be distributed as evenly as possible, that every book
should have a fair share of that protection, and no book more than a
fair share. It would evidently be absurd to put tickets into a wheel,
with different numbers marked upon them, and to make writers draw, one
a term of twenty-eight years, another a term of fifty, another a term of
ninety. And yet this sort of lottery is what my noble friend proposes to
establish. I know that we cannot altogether exclude chance. You have two
terms of copyright; one certain, the other uncertain; and we cannot, I
admit, get rid of the uncertain term. It is proper, no doubt, that an
author's copyright should last during his life. But, Sir, though we
cannot altogether exclude chance, we can very much diminish the share
which chance must have in distributing the recompense which we wish
to give to genius and learning. By every addition which we make to the
certain term we diminish the influence of chance; by every addition
which we make to the uncertain term we increase the influence of chance.
I shall make myself best understood by putting cases. Take two eminent
female writers, who died within our own memory, Madame D'Arblay and Miss
Austen. As the law now stands, Miss Austen's charming novels would have
only from twenty-eight to thirty-three years of copyright. For that
extraordinary woman died young: she died before her genius was fully
appreciated by the world. Madame D'Arblay outlived the whole generation
to which she belonged. The copyright of her celebrated novel, Evelina,
lasted, under the present law, sixty-two years. Surely this inequality
is sufficiently great--sixty-two years of copyright for Evelina, only
twenty-eight for Persuasion. But to my noble friend this inequality
seems not great enough. He proposes to add twenty-five years to Madame
D'Arblay's term, and not a single day to Miss Austen's term. He would
give to Persuasion a copyright of only twenty-eight years, as at
present, and to Evelina a copyright more than three times as long, a
copyright of eighty-seven years. Now, is this reasonable? See, on the
other hand, the operation of my plan. I make no addition at all to
Madame D'Arblay's term of sixty-two years, which is, in my opinion,
quite long enough; but I extend Miss Austen's term to forty-two years,
which is, in my opinion, not too much. You see, Sir, that at present
chance has too much sway in this matter: that at present the protection
which the State gives to letters is very unequally given. You see that
if my noble friend's plan be adopted, more will be left to chance than
under the present system, and you will have such inequalities as are
unknown under the present system. You see also that, under the system
which I recommend, we shall have, not perfect certainty, not perfect
equality, but much less uncertainty and inequality than at present.
But this is not all. My noble friend's plan is not merely to institute
a lottery in which some writers will draw prizes and some will draw
blanks. It is much worse than this. His lottery is so contrived that, in
the vast majority of cases, the blanks will fall to the best books, and
the prizes to books of inferior merit.
Take Shakspeare. My noble friend gives a longer protection than I should
give to Love's Labour's Lost, and Pericles, Prince of Tyre; but he gives
a shorter protection than I should give to Othello and Macbeth.
Take Milton. Milton died in 1674. The copyrights of Milton's great
works would, according to my noble friend's plan, expire in 1699. Comus
appeared in 1634, the Paradise Lost in 1668. To Comus, then, my noble
friend would give sixty-five years of copyright, and to the Paradise
Lost only thirty-one years. Is that reasonable? Comus is a noble
poem: but who would rank it with the Paradise Lost? My plan would give
forty-two years both to the Paradise Lost and to Comus.
Let us pass on from Milton to Dryden. My noble friend would give
more than sixty years of copyright to Dryden's worst works; to the
encomiastic verses on Oliver Cromwell, to the Wild Gallant, to the Rival
Ladies, to other wretched pieces as bad as anything written by Flecknoe
or Settle: but for Theodore and Honoria, for Tancred and Sigismunda, for
Cimon and Iphigenia, for Palamon and Arcite, for Alexander's Feast, my
noble friend thinks a copyright of twenty-eight years sufficient. Of
all Pope's works, that to which my noble friend would give the largest
measure of protection is the volume of Pastorals, remarkable only as the
production of a boy. Johnson's first work was a Translation of a Book of
Travels in Abyssinia, published in 1735. It was so poorly executed that
in his later years he did not like to hear it mentioned. Boswell once
picked up a copy of it, and told his friend that he had done so. "Do not
talk about it," said Johnson: "it is a thing to be forgotten. " To this
performance my noble friend would give protection during the enormous
term of seventy-five years. To the Lives of the Poets he would give
protection during about thirty years. Well; take Henry Fielding; it
matters not whom I take, but take Fielding. His early works are read
only by the curious, and would not be read even by the curious, but for
the fame which he acquired in the latter part of his life by works of
a very different kind. What is the value of the Temple Beau, of the
Intriguing Chambermaid, of half a dozen other plays of which few
gentlemen have even heard the names? Yet to these worthless pieces my
noble friend would give a term of copyright longer by more than twenty
years than that which he would give to Tom Jones and Amelia.
Go on to Burke. His little tract, entitled the Vindication of Natural
Society is certainly not without merit; but it would not be remembered
in our days if it did not bear the name of Burke. To this tract my noble
friend would give a copyright of near seventy years. But to the great
work on the French Revolution, to the Appeal from the New to the Old
Whigs, to the letters on the Regicide Peace, he would give a copyright
of thirty years or little more.
And, Sir observe that I am not selecting here and there extraordinary
instances in order to make up the semblance of a case. I am taking the
greatest names of our literature in chronological order. Go to other
nations; go to remote ages; you will still find the general rule the
same. There was no copyright at Athens or Rome; but the history of the
Greek and Latin literature illustrates my argument quite as well as if
copyright had existed in ancient times. Of all the plays of Sophocles,
the one to which the plan of my noble friend would have given the
most scanty recompense would have been that wonderful masterpiece, the
Oedipus at Colonos. Who would class together the Speech of Demosthenes
against his Guardians, and the Speech for the Crown? My noble friend,
indeed, would not class them together. For to the Speech against the
Guardians he would give a copyright of near seventy years, and to the
incomparable Speech for the Crown a copyright of less than half that
length. Go to Rome. My noble friend would give more than twice as long a
term to Cicero's juvenile declamation in defence of Roscius Amerinus as
to the Second Philippic. Go to France. My noble friend would give a far
longer term to Racine's Freres Ennemis than to Athalie, and to Moliere's
Etourdi than to Tartuffe. Go to Spain. My noble friend would give a
longer term to forgotten works of Cervantes, works which nobody now
reads, than to Don Quixote. Go to Germany. According to my noble
friend's plan, of all the works of Schiller the Robbers would be the
most favoured: of all the works of Goethe, the Sorrows of Werter would
be the most favoured. I thank the Committee for listening so kindly to
this long enumeration. Gentlemen will perceive, I am sure, that it is
not from pedantry that I mention the names of so many books and authors.
But just as, in our debates on civil affairs, we constantly draw
illustrations from civil history, we must, in a debate about literary
property, draw our illustrations from literary history. Now, Sir, I
have, I think, shown from literary history that the effect of my
noble friend's plan would be to give to crude and imperfect works, to
third-rate and fourth-rate works, a great advantage over the highest
productions of genius. It is impossible to account for the facts which I
have laid before you by attributing them to mere accident. Their number
is too great, their character too uniform. We must seek for some other
explanation; and we shall easily find one.
It is the law of our nature that the mind shall attain its full power
by slow degrees; and this is especially true of the most vigorous minds.
Young men, no doubt, have often produced works of great merit; but it
would be impossible to name any writer of the first order whose juvenile
performances were his best. That all the most valuable books of history,
of philology, of physical and metaphysical science, of divinity, of
political economy, have been produced by men of mature years will hardly
be disputed. The case may not be quite so clear as respects works of
the imagination. And yet I know no work of the imagination of the very
highest class that was ever, in any age or country, produced by a
man under thirty-five. Whatever powers a youth may have received from
nature, it is impossible that his taste and judgment can be ripe, that
his mind can be richly stored with images, that he can have observed
the vicissitudes of life, that he can have studied the nicer shades of
character. How, as Marmontel very sensibly said, is a person to paint
portraits who has never seen faces? On the whole, I believe that I may,
without fear of contradiction, affirm this, that of the good books now
extant in the world more than nineteen-twentieths were published after
the writers had attained the age of forty. If this be so, it is evident
that the plan of my noble friend is framed on a vicious principle. For,
while he gives to juvenile productions a very much larger protection
than they now enjoy, he does comparatively little for the works of men
in the full maturity of their powers, and absolutely nothing for any
work which is published during the last three years of the life of the
writer. For, by the existing law, the copyright of such a work lasts
twenty-eight years from the publication; and my noble friend gives only
twenty-five years, to be reckoned from the writer's death.
What I recommend is that the certain term, reckoned from the date of
publication, shall be forty-two years instead of twenty-eight years. In
this arrangement there is no uncertainty, no inequality. The advantage
which I propose to give will be the same to every book. No work will
have so long a copyright as my noble friend gives to some books, or so
short a copyright as he gives to others. No copyright will last ninety
years. No copyright will end in twenty-eight years. To every book
published in the course of the last seventeen years of a writer's life
I give a longer term of copyright than my noble friend gives; and I
am confident that no person versed in literary history will deny
this,--that in general the most valuable works of an author are
published in the course of the last seventeen years of his life. I will
rapidly enumerate a few, and but a few, of the great works of English
writers to which my plan is more favourable than my noble friend's plan.
To Lear, to Macbeth, to Othello, to the Fairy Queen, to the Paradise
Lost, to Bacon's Novum Organum and De Augmentis, to Locke's Essay on
the Human Understanding, to Clarendon's History, to Hume's History, to
Gibbon's History, to Smith's Wealth of Nations, to Addison's Spectators,
to almost all the great works of Burke, to Clarissa and Sir Charles
Grandison, to Joseph Andrews, Tom Jones and Amelia, and, with the single
exception of Waverley, to all the novels of Sir Walter Scott, I give a
longer term of copyright than my noble friend gives. Can he match that
list? Does not that list contain what England has produced greatest in
many various ways--poetry, philosophy, history, eloquence, wit, skilful
portraiture of life and manners? I confidently therefore call on the
Committee to take my plan in preference to the plan of my noble friend.
I have shown that the protection which he proposes to give to letters is
unequal, and unequal in the worst way. I have shown that his plan is to
give protection to books in inverse proportion to their merit.
