Copyhype

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s.¹See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839).

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.