Miscellaneous Writings and Speeches — Volume 4

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.