HC Deb 18 May 1837 vol 38 cc866-80
* Mr. Sergeant Talfourd

Mr. Speaker, in venturing to invite the attention of the House to the state of the law affecting the property of men of letters and of artists in the results * From a corrected report published by Moxon. of their genius and industry, I feel that it is my duty to present their case as concisely as its nature will permit. While I believe that their claims to some share in the consideration of the Legislature will not be denied, I am aware that they appeal to feelings far different from those which are usually excited by the intellectual conflicts of this place; that the interest to their case is not of that stirring kind which belongs to the busy present, but reflects back on the past, of which the passions are now silent, and stretches forward with speculation into the visionary future; and that the circumstances which impede their efforts and frustrate their reward, are best appreciated in the calmness of thought to which those efforts are akin, I shall therefore intrude as briefly as I can on the patience of the House, while I glance at the history of the evils of which they complain; suggest the principles on which I think them entitled to redress; and state the outline of the remedies by which I propose to relieve them.

If is, indeed, time that literature should experience some of the blessings of legislation; for hitherto, with the exception of the noble boon conferred on the acted drama by the Bill of my hon. Friend the Member for Lincoln, it has received scarcely anything but evil. If we should now simply repeal all the statutes which have been passed under the guise of encouraging learning, and leave it to be protected only by the principles of the common law, and the remedies which the common law could supply, I believe the relief would be welcome, It did not occur to our ancestors, that the right of deriving solid benefits from that which springs solely from within us—the right of property in that which the mind itself creates, and which, so far from exhausting the materials common to all men, or limiting their resources, enriches and expands them—a right of property, which by the happy peculiarity of its nature, can only be enjoyed by the proprietor in proportion as it blesses mankind—should be exempted from the protection which is extended to the ancient appropriation of the soil, and the rewards of commercial enterprise. By the common law of England, as solemnly expounded by a majority of seven to four of the judges in the case of "Donaldson v. Beckett," and as sustained by the additional opinion of Lord Mansfield, the author of an original work had for ever the sole right of multiplying copies, and a remedy by action, incident to every right, against any who should infringe it. The jurisdiction of the Star Chamber, while it restrained the freedom of the press, at the same time incidentally preserved the copy-right from violation; and this was one of the pleas urged for the power of licensing; for Milton, in his immortal pleading for unlicensed printing, states, as one of the glosses of his opponents, "the just retaining by each man of his several copy, which God forbid should be gainsaid." In the special verdict in "Miller v. Taylor" (1769), it was found as a fact, "that before the reign of Queen Anne, it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand for valuable considerations, and to make them the subject of family settlements." In truth, the claim of the author to perpetual copyright was never disputed, until literature had received a fatal present in the first act of Parliament for its encouragement—the 8th Anne, c. 19, passed in 1709; in which the mischief lurked, unsuspected, for many years before it was called into action to limit the rights it professed, and was probably intended, to secure. By that act the sole right of printing and reprinting their works was recognised in authors for the term of fourteen years, and, if they should be living at its close, for another period of the same duration—and piracy was made punishable during those periods by the forfeiture of the books illegally published, and of a penny for every sheet in the offender's custody—one half to the use of the Queen's Majesty, the other halfpenny, not to the poor author, whose poverty the sum might seem to befit, but to the informer; and the condition of these summary remedies, was the entry of the work at Stationers'-hall. This act, 'for the encouragement of learning," which, like the priest in the fable, while it vouchsafes the blessing denies the farthing, also confers a power on the Archbishop of Canterbury and other great functionaries to regulate the prices of books, which was rejected by the Lords, restored on conference with the. Commons, and repealed in the following reign; and also confers on leaning the benefit of a forced contribution of one copies of every work, on the best paper, for the use of certain libraries Except in this last particular, the act seems to have remained a dead letter down to the, year 1760, no one, as far as I can trace, having thought it worth while to sue for its half-pennies, and no one having suggested that its effect had been to repeal the common-law right of authors to the term during which its remedies were to operate. So far was this construction from being suspected, that in this interval of fifty years the Court of Chancery repeatedly interfered by injunction to restrain the piracy of books in which the statutable copyright had long expired. This protection was extended in 1735, to "The Whole Duty of Man," the first assignment of which had been made seventy-eight years before; in the same year to the "Miscellanies of Pope and Swift;" in 1736 to "Nelson's Festivals and Fasts;" in 1739 to the "Paradise Lost;" and in 1752 to the same poem, with a life of the author, and the notes of all preceding editions. Some doubts having at length arisen, the question of the operation of the statute was in 1760 raised by a sort of amicable suit, "Tonson v. Collins," respecting the "Spectator," in which, the Court of Common Pleas inclined to the plaintiff, but before giving judgment, discovered that the proceeding was collusive, and, refused to pronounce any decision. In 1766 an action was brought, "Miller v. Taylor," for pirating "Thomson's Seasons," in the Court of King's Bench, before whom it was elaborately argued, and which in 1769 gave judgment in favour of the subsisting copyright, Lord Mansfield, Mr. Justice Willes, and Mr. Justice Aston holding, that copyright was perpetual by the common law, and not limited by the statute, except as to penalties, and Mr. Justice Yates dissenting from them. In 1774 the question was brought before the House of Lords, when eleven judges delivered their opinions upon it—six of whom thought the copyright limited, while five held it perpetual; and Lord Mansfield, who would have made the numbers equal, retaining his opinion, but expressing none. By this bare majority—against the strong opinion of the Chief Justice of England—was it decided that the statute of Anne has substituted a short term in copyright for an estate in fee, and the rights of authors were delivered up to the mercy of succeeding Parliaments.

Until this decision the copy right vested in the universities had only shared the protection which it was supposed had existed for all, and, in fact their copyright was gone. But they immediately resorted to the Legislature and obtained an Act, 15 George 3rd, c. 63, "For enabling the two universities in England, the four universities of Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity the copyright in books given or bequeathed to them for the advancement of learning and the purposes of education; and the like privilege was, by 41 George 3rd, c. 107, extended to Trinity College, Dublin. With the immunities thus conferred on the universities, or rather with this exemption from the wrong incidentally inflicted on individuals, I have no intention to interfere; neither do I seek to relieve literature from the obligation, recently lightened by the just consideration of Parliament, of supplying the principle universities with copies of all works at the author's charge. I only seek to apply the terms of the statute, which recites that the purposes of those who bequeathed copyright to the universities for the advancement of learning would be frustrated unless the sole printing and reprinting of such books be secured in perpetuity, to support the claim of individuals to some extended interest in their own. I only ask that some of the benefits enjoyed by the venerable nurseries of learning and of genius should attend the works of those whose youth they have inspired and fostered, and of those also who, although fortune has denied to them that inestimable blessing, look with reverence upon the great institutions of their country, and feel themselves in that reverence not wholly strangers to the great body of associations they nourish.

The next act, 41st George 3rd, c. 107, passed immediately after the Union, did little besides including Ireland in the general law of copyright; conferring on Trinity College, Dublin, the privilege of English universities: prohibiting the importation of books from abroad which had been originally printed in the United Kingdom; and increasing the penalty on piracies from 1d. to 3d. per sheet. But in the year 1814, by the statute 54 George 3rd, c. 156, which is the principal subsisting act on the subject of literary copyright, reciting "That it would afford further encouragement to literature, if the duration of copyright were further ex- tended," enlarges it to the absolute term of twenty-eight years; and if the author shall survive that time, secures it to him for the remainder of his life. Since then the Legislature has extended its protection to two classes of composition which before were left in a condition to invite piracy—to the acted drama, by the mea-sure of 3 William 4th, c. 15, and to lectures, by 5 and 6 William 4th, c. 65—and has, by an Act of last Session, lightened the load of one of the blessings conferred by the Legislature, by reducing the copies which authors are privileged to render to five; but the term of twenty-eight years, with the possible reversion beyond that time for life, is all authors have yet obtained in return for that inheritance of which the statute of Anne deprived them.

This limitation of the ancient rights of authorship has not been compensated by uniformity in the details of the law, by simplicity in the modes of proving the right, or of transferring it, or by the cheapness or adequacy of the remedies. The penal clauses have proved wholly worthless. Engravings, etchings, maps, and charts, which are regulated by other statutes, are secured to the author for twenty-eight years, but not, like books, for the contingent term of life. Instead of the registration at Stationers'-hall, which has been holden not necessary for the right of action, the work must bear the date and the name of the proprietor; but no provision is made in either case for cheap transfer. Now, I propose to render the law of copyright uniform, as to all books and works of art, to secure to the proprietor the same term in each, to give one plan of registration and one mode of transfer. As the Stationers' company have long enjoyed the control over the registration of books, I do not propose to take it from them, if they are willing to retain it with the increased trouble, compensated by the increased fees which their officer will be entitled to receive. I propose that, before any proceeding can be adopted for the violation of copyright, the author, or his assignee, shall deposit a copy of the work, whether book or engraving, and cause an entry to be made in the form to be given in the act of the proprietorship of the work, whether absolute or limited; and that a copy of such entry, signed by the officer, shall be admitted in all courts as primâ facie evidence of the property. I propose that any transfer should be re- gistered in like manner in a form also to be given by the Act, and that such transfer shall be proved by a similar copy, and that in neither case shall any stamp be requisite.

At present, great uncertainty prevails as to the original right of property in papers supplied to periodical works, or written at the instance of a bookseller, and as to the right of engraving from original pictures. However desirable it may be that these questions should be settled, it is impossible to interfere with the existing relations of booksellers and authors, or of patrons of art and artists. Neither, for the future, do I propose to lay down any rule as to the rights which shall originally be expressed or implied between the parties themselves; but that the right of copy shall be registered as to such books, pictures, or engravings, only with the consent of both expressed in writing, and when this is done, shall be absolute in the party registered as owner. At present, an engraver or publisher, who has given a large sum for permission to engrave a picture, and expended his money or labour in the plate, may be met by unexpected competition, for which he has no remedy. By making the registration not the condition of the right itself, but of the remedy by action or otherwise, the independence of contracting parties will be preserved, and this evil avoided for the future. A competent tribunal will still be wanting; its establishment is beyond the scope of my intention or my power; but I feel that complete justice will not be done to literature and art, until a mode shall be devised for a cheap and summary vindication of their injuries before some parties better qualified to determine it than judges who have passed their lives in the laborious study of the law, or jurors who are surrounded with the cares of business, and, except by accident, little acquainted with the subjects presented to them for decision.

But the main object of the bill which I contemplate is—I will not use those words of ill omen, "the further advancement of learning," but—for additional justice to learning, by the further extension of time during which authors shall enjoy the direct pecuniary benefit immediately flowing from the sale of their own works.

Although I see no reason why authors should not be restored to that inheritance which, under the name of protection and encouragement, has been taken from them, I feel that the subject has so long been treated as matter of compromise between those who deny that the creations of the inventive faculty, or the achievements of the reason, are the subjects of property at all, and those who think the property should last as long as the works which contain truth and beauty live, that I propose still to treat it on the principle of compromise, and to rest satisfied with a fairer adjustment of the difference than the last Act of Parliament affords. I shall propose—subject to modification when the details of the measure shall be discussed—that the term of property in all works of learning, genius, and art, to be produced hereafter, or in which the statutable copyright now subsists, shall be extended to sixty years, to be computed from the death of the author; which will, at least, enable him, while providing for the instruction and the delight of distant ages, to contemplate that he shall leave in his works themselves some legacy to those for whom a nearer, if not a higher duty, requires him to provide, and which shall make "death less terrible." When the opponents of literary property speak of glory as the reward of genius, they make an ungenerous use of the very nobleness of its impulses, and show how little they have profited by its high example. When Milton, in poverty and in blindness, fed the flame of his divine enthusiasm by the assurance of a duration coequal with his language, I believe, with Lord Camden, that no thought crossed him of the wealth which might be amassed by the sale of his poem; but surely some shadow would have been cast upon "the clear dream and solemn vision" of his future glories, had he foreseen that, while booksellers were striving to rival each other in the magnificence of their editions, or their adaptation to the convenience of various classes of his admirers, his only surviving descendant, a woman, should be rescued from abject want only by the charity of Garrick, who, at the solicitation of Dr. Johnson, gave her a benefit at the theatre which had appropriated to itself all that could be represented of Comus. The liberality of genius is surely ill-urged for our ungrateful denial of its rights. The late Mr. Coleridge gave an example not merely of its liberality, but of its profuse-ness; while he sought not even to appropriate to his fame the vast intellectua treasures which he had derived from boundless research, and coloured by a glorious imagination; while he scattered abroad the seeds of beauty and of wisdom to take root in congenial minds, and was content to witness their fruits in the productions of those who heard him. But ought we, therefore, the less to deplore, now when the music of his divine philosophy is for ever hushed, that the earlier portion of those works on which he stamped his own impress—all which he desired of the world that it should recognise as his—are published for the gain of others than his children—that his death is illustrated by the forfeiture of their birthright? What justice is there in this? Do we reward our heroes so? Did we tell our Marlboroughs, our Nelsons, our Wellingtons, that glory was their reward, that they fought for posterity, and that posterity would pay them? We leave them to no such cold and uncertain requital; we do not even leave them merely to enjoy the spoils of their victories, which we deny to the author—we concentrate a nation's honest feeling of gratitude and pride into the form of an endowment, and teach other ages what we thought, and what they ought to think, of their deeds by the substantial memorials of our praise. Were our Shakspeare and Milton less the ornaments of their country, less the benefactors of mankind? Would the example be less inspiring if we permitted them to enjoy the spoils of their peaceful victories—if we allowed to their descendants, not the tax assessed by present gratitude, and charged on the future, but the mere amount which that future would be delighted to pay—extending as the circle of their glory expands—and rendered only by those who individually reap the benefits, and are contented at once to enjoy and to reward its author?

But I do not press these considerations to the full extent—the past is beyond our power—and I only ask for the present a brief reversion in the future. "Riches fineless" are already ours. It is in truth the greatness of the blessings which the world inherits from genius that dazzles the mind on this question, and the habit of repaying its bounty by words, that confuses us and indisposes us to justice. It is because the spoils of time are freely and irrevocably ours—because the forms of antique beauty wear for us the bloom of an imperishable youth—because the elder literature of our own country is a free mine of wealth to the bookseller, and of delight to ourselves, that we are unable to understand the claim of our contemporaries to a beneficial interest in their works. Because genius of necessity communicates so much, we cannot conceive it as retaining anything for its possessor. There is a sense, indeed, in which the poets "on earth have made us heirs of truth and pure delight in heavenly lays;" and it is because of this Very boon; because their thoughts become our thoughts, and their phrases unconsciously enrich our daily language—because their works, harmonious by the law of their own nature, suggest to us the rules Of composition by which their imitators should be guided—because to them we can resort, and "in our golden urns draw light," that we cannot fancy them apart from ourselves, or admit that they have any property except in our praise. And our gratitude is shown not only in leaving their descendants without portion in the pecuniary benefits derived from their works, but in permitting their fame to be frittered away in abridgments, and polluted by base intermixtures, and denying to their children even the cold privilege of watching over and protecting it.

There is something, Sir, peculiarly unjust in bounding the term of an author's property by his natural life, if he should survive so short a period as twenty-eight years. It denies to age and experience the probable reward it permits to youth—to youth, sufficiently full of hope and joy, to slight its promises. It gives a bounty to haste, and informs the laborious student who would wear away his strength to complete some work which "the world will not willingly let die," that the more of his life he devotes to its perfection, the more limited shall be his interest in its fruits. It stops the progress of remuneration at the moment it is most needed, and when the benignity of nature would extract from her last calamity a means of support and comfort to survivors. At the moment when his name is invested with the solemn interest of the grave—when his eccentricities or frailties excite a smile or a shrug no longer—when the last seal is set upon his earthly course, and his works assume their place among the classics of his country—your law declares that his works shall become your property; and you requite him by seizing the patrimony of his children. We blame the errors and excesses of genius, and we leave them—justly leave them—for the most part, to the consequences of their strangely blended nature. But if genius, in assertion of its diviner alliances, produces large returns when the earthly cost of its frail possessor is past, why is the public to insult his descendants with their alms and their pity? What right have we to moralise over the excesses of a Burns, and insult his memory by-charitable honours, while we are taking the benefit of his premature death, in the expiration of his copyright and the cheapness of his works? Or, to advert to a case in which the highest intellectual powers were associated with the noblest moral excellence, what right have we to take credit to ourselves for a paltry and ineffectual subscription to rescue Abbots-ford for the family of its great author, (Abbotsford, his romance in stone and mortar, but not more individually his than those hundred fabrics, not made with hands, which he has raised and peopled for the delight of mankind), while we insist on appropriating now the profits of his earlier poems, and anticipate the time when, in a few years, his novels will be ours without rent-charge to enjoy, and any one's to copy, to emasculate, and to garble? This is the case of one, whom kings and people delighted to honour. But look on another picture—that of a man of genius and integrity who has received all the insult and injury from his contemporaries, and obtains nothing from posterity but a name. Look at Daniel De Foe; recollect him pilloried, bankrupt, wearing away his life to pay his creditors in full, and dying in the struggle!—and his works live, imitated, corrupted, yet casting off the stains, not by protection of law, but by their own pure essence. Had every school-boy, whose young imagination has been prompted by his great work, and whose heart has learned to throb in the strange, yet familiar solitude he created, given even the half-penny of the statute of Anne, there would have been no want of a provision for his children, no need of a subscription for a statue to his memory.

The term allowed by the existing law is curiously adapted to encourage the lightest works, and to leave the noblest unprotected. Its little span is ample for authors who seek only to amuse; who, "to beguile the time, look like the time;" who lend to frivolity or corruption, "lighter wings to fly:" who sparkle, blaze and ex- pire. These may delight for a season the fireflies on the heaving sea of public opinion—the airy proofs of the intellectual activity of the age; yet surely it is not just to legislate for those alone, and deny all reward to that literature which aspires to endure. Let us suppose an author, of true original genius, disgusted with the inane phraseology which had usurped the place of poetry, and devoting himself from youth to its service; disdaining the gauds which attract the careless, and unskilled in the moving accidents of fortune—not seeking to triumph in the tempest of the passions, but in the serenity which lies above them—whose works shall be scoffed at—whose name made a by-word—and yet, who shall persevere in his high and holy course, gradually impressing thoughtful minds with the sense of truth made visible in the severest forms of beauty, until he shall create the taste by which he shall be appreciated—influence one after another the master spirits of his age—be felt pervading every part of the national literature, softening, raising and enriching it; and when at last he shall find his confidence in his own aspirations justified, and the name which once was the scorn admitted to be the glory of his age—he shall look forward to the close of his earthly career, as the event that shall consecrate his fame and deprive his children of the opening harvest he is beginning to reap. As soon as his copyright becomes valuable it is gone. This is no imaginary case—I refer to one who, "in this setting part of Time" has opened a vein of the deepest sentiment and thought before unknown—who has supplied the noblest antidote to the freezing effects of the scientific spirit of the age—who, while he has detected that poetry which is the essence of the greatest things, has cast a glory around the lowliest conditions of humanity, and traced out the subtle links by which they are connected with the highest—of one whose name will now find an echo, not only in the heart of the secluded student, but in that of the busiest of those who are fevered by political controversy—of William Wordsworth. Ought we not to requite such a poet in some degree for the injustice of our boyhood? For those works which are now insensibly quoted by our most popular writers, the spirit of which now mingles with our intellectual atmosphere, he probably has not received through the long life he has devoted to his art, until lately, as much as the same labour, with moderate talent, might justly produce in a single year. Shall the law, whose term has been amply sufficient to his scorners, now afford him no protection because he has outlasted their scoffs, because his fame has been fostered amidst the storms, and is now the growth, of years?

There is only one other consideration to which I will advert, as connected with this subject—the expedience and justice of acknowledging the rights of foreigners to copyright in this country and of claiming it from them for ourselves in return. If at this time it were clear that our law afforded no protection to foreigners first publishing in other countries, there would be great difficulty in dealing with this question for ourselves, and we might feel bound to leave it to negotiation to give and to obtain reciprocal benefits. But if a recent decision on the subject of musical copyright is to be regarded as correct, the principle of international copyright is already acknowledged here, and there is little for us to do in order that we may be enabled to claim its recognition from foreign states. It has been decided by a judge conversant with the business, and with the elegancies of life to a degree unusual with an eminent lawyer; by one who was the most successful advocate of his time, yet who was not more remarkable for his skill in dealing with facts, than for the grace with which he embellished them, by Lord Abinger—that the assignee of foreign copyright, deriving title from the author abroad to publish in this country, and creating that right within a reasonable time, may claim the protection of our courts against any infringement of his copy. If this is law—and I believe and trust it is—we shall make no sacrifice in so declaring it, and in setting an example which France, Prussia, America, and Germany are prepared to follow. Let us do justice to our law and to ourselves. At present, not only is the literary intercourse of countries, who should form one great family, degraded into a low series of mutual piracies, not only are industry and talent deprived of their just reward, but our literature is debased in the eyes of the world, by the wretched medium through which they behold it. Pilfered, and disfigured in the pilfering, the noblest images are broken, wit falls pointless, and verse is only felt in fragments of broken music;—sad fate for an irritable race. The great minds of our time have now an audience to impress far vaster than it entered into the minds of their predecessors to hope for; an audience increasing as population thickens in the cities of America, and spreads itself out through its diminishing wilds, who speak our language, and who look on our old poets as their own immortal ancestry. And if this our literature shall be theirs; if its diffusion shall follow the efforts of the stout heart and sturdy arm in their triumph over the obstacles of nature; if the woods stretching beyond, their confines shall be haunted with visions of beauty which our poets have created, let those who thus are softening the rugged-ness of young society have some present interest about which affection may gather, and at least let them be protected from those who would exhibit them mangled or corrupted to their transatlantic disciples. I do not in truth ask for literature favour: I do not ask for it charity; I do not even appeal to gratitude in its behalf; but I ask for it a portion, and but a portion, of that common justice which the coarsest industry obtains for its natural reward, and which nothing but the very extent of its claims, and the nobleness of the associations to which they are akin, have prevented it from receiving from our laws.

Sir, I will trespass no longer on the patience of the House, for which I am most grateful, but move that leave be given to bring in a Bill "to consolidate and amend the laws relating to property in the nature of copyright in books, musical compositions, acted dramas, pictures, and engravings, to provide remedies for the violation thereof, and to extend the term of its duration."

The Chancellor of the Exchequer

did not know whether he might claim the privilege of seconding the motion of his hon. and learned Friend, but he begged to be allowed to do so—never, on any occasion, having enjoyed a more unmixed feeling of gratification than he derived both from the speech of his hon. and learned Friend, and the motion of which it was introductory. And, in passing, he might be allowed to say, that the motion was not inappropriately made by his hon. and learned Friend, to whom the country was under some obligations of a literary character, which would long be remembered. Most fitting was it, that one to whom the country was so indebted, should come forward and claim in behalf of literature, not an act of charity or generosity, but an act of justice. Judging from the mode in which his hon. and learned Friend's arguments had been received, it appeared that there were none of his hopes for the future which the House was not disposed to participate in. For himself, he must say, that no case within his knowledge had been presented to the attention of the Government, in which literary men, or their descendants, claimed the bounty of the Crown without serious reproach appearing to attach to the law of copyright. No such case had been under his cognisance without his feeling, when the Crown was doling out the bounty which Parliament placed at its disposal for such purposes, that a much more liberal provision than could be thus afforded, would have been secured to them as a matter of right, if the law of copyright had been just in its operation. In the course of his observations, his hon. and learned Friend had opened a question of considerable importance; he alluded to the question of international law; and he had brought the subject forward at a most opportune period, inasmuch as that other brother of the English family—for so he must ever describe the nation on the other side of the Atlantic, had already given it some attention. He believed it had been brought under the consideration of the American Congress by a report drawn up by one of its most eminent statesmen, Mr. Clay. The illustrations alone of his hon. and learned Friend were sufficient, in his opinion, to make out his case; but, taken in connexion with the arguments which he had urged, they were, beyond doubt, irresistible. The right hon. Gentleman, in conclusion, said, he was quite sure that it would be most gratifying to the most distinguished of living poets to see justice rendered to genius, and to receive it at the hand of his hon. and learned Friend.

Sir Robert H. Inglis

having, in the course of last Session, intended to bring this subject under the consideration of the House, was unwilling to lose the present opportunity of stating that, instead of regretting that he had not done so, he had every reason to congratulate the House, those interested in our literature, and the country at large, that the task had been undertaken by one who was, in all respects, so highly qualified to render it justice.

Leave given to bring in the Bill.