LITERARY PROPERTY.*

THE question has been recently much agitated in our literary circles, of the propriety of extending the protection to literary property afforded by our existing law of copyright, to foreign, as well as to native and resident, authors; in other words, of establishing by reciprocal legislation with foreign nations-having especial reference, of course, to England-a system of "International Copyright." The impulse which first set this ball in motion,' was derived from a petition to that effect addressed to Congress, in February, 1837, by not less than fifty-six of the most eminent authors of that country, backed by a few American authors and writers of one sort or another, concurring in the appeal urged by the former upon the liberality and justice of our Government.

It was, of course, perfectly proper and natural for the popular authors of England to address such an appeal to our Government. For widely distinct in nationality, and distant in geographical longitude, as are the two countries, yet the possession of a common vernacular, the general diffusion of education, and the rapidly progressive increase of population and wealth, on our side of the broad Atlantic, would of course make it a very desirable object for English authors to reap the benefit of the American market in the circulation of their writings. There could at any rate be no harm in the request and the attempt. As for the American signers to the petition, however, they would have better at the same time consulted their own interests, and discharged their devoir to the cause of American literature, as representatives of which they appear on the occasion, by directing the attention of the Government and the public to the real radical vice in our legislation on the subject of literary property,which is, our imperfect recognition of the reality and sanctity of that species of property. It is in fact entirely reversing the natural succession of ideas and of legislation, for English and American authors to unite in applying for an international copyright law, on the ground of those eternal principles of abstract justice which, we freely confess, are paramount to any considerations of expediency and selfish interests,-while at the same time neither country recognizes in its legislation the very principle of property on which this appeal to our disinterested and self-sacrificing equity is based.

* Remarks on Literary Property. By Philip H. Nicklin, A. M., &c. Philadelphia. Nicklin & Johnson, 1838.

A Plea for Authors, and the Rights of Literary Property. By an American. New York. Adland & Saunders, 1838.

VOL. II. NO. VII.-JUNE.

Let our neighbour remove the beam from her own eye, before crying out against the mote which she sees in ours. Let us ourselves, if we are prepared to admit the principle at all, admit it frankly as a vital and governing principle, to reform the whole body of our legislation on the subject, instead of merely making a partial and doubtful application of it, at the expense of a clear tax upon our own reading public, for the sole benefit of the stranger' not 'within our gates,' but thousands of miles distant from our shores.

The grievance complained of is simply, that foreign authors receive no pecuniary benefit for the republication of their writings in this country. In the absence of any copyright restriction, the freedom of competition among our publishers gives us the benefit of the earliest possible publication, at the cheapest possible price, of the best productions of the British press, that is to say, of all such as are adapted to our public taste, possessing that intrinsic vitality of merit which can alone give them circulation. Our reprints are certainly astonishingly cheap, in comparison with the English prices of the originals. This is not derived solely, though it is, of course, in a considerable degree, from the absence of a copyright tax for the benefit of the author. The effect of the monopoly which in point of fact exists among the magnates of the trade' in London, is at least equally influential in keeping up the high scale of prices of ✔books in that country; to which is to be added the consideration of their usual superior mechanical elegance, to adapt them to the more limited, but more wealthy classes on which they depend for their circulation. The question is now whether we shall take the gifts the gods provide us,' and continue to enjoy the advantage of this cheap use of the cream of the literature of our mother country, or magnanimously consent to pay a gratuitous copyright tax to the British author, as an offering of trans-Atlantic liberality, in addition to the remuneration which he receives from his publishers or the public at home.

It is a question purely of magnanimity, of volunteer justice and generosity; and while this is the only real ground on which the application rests, we acknowledge it to be the highest and strongest on which it could be placed. The argumentum ad hominem addressed to our national self-interest, in the eighth clause of the petition, we dismiss as futile in itself, and, though rather specious and insidious, as calculated, when fairly examined, to prejudice rather than promote the object sought. It is there put forward, that American authors are injured, and the formation of a national literature impeded, by the circulation of cheap English books,-the cost of copyright, to be paid to the American writer, operating as a bounty on the foreign importation, and as a comparative tax on the native production. Even if such were the case, we should certainly be little more disposed to favor a literary protective tariff, to foster

artificially a domestic manufacture at the expense of a general taxation of the reading public, than in the case of cotton and woollen cloths. If a better literature, books more acceptable to the public taste, can be furnished cheaper by the present system, certainly, if we admit into the inquiry no other consideration than that of expediency, we see no adequate reason to change it. But it is an entire mistake to imagine that its operation is injurious to the formation of a national literature. It might as well be pretended, that the importation of splendid galleries of foreign paintings, or operas and oratorios of foreign music, with a gratuitous or very cheap access to them afforded to the public at large, would be injurious to the cultivation of American art. Its operation is directly the reverse. The present cheapness of books places them within the reach of hundreds of thousands to whom they would otherwise be inaccessible; and while it extends indefinitely the limits, it at the same time, by such exercise, vastly improves the taste, of what is.. commonly termed the reading public.' Certainly the creation of so broad and sound a basis for the support of a literature of domestic production, by the multiplication of the number of readers, and the cultivation of their literary taste, is not a very direct way to discourage a national literature. Its effect tends rather to raise the standard of taste by which authors write and the public reads, stimulating the former to exertion by the influence of example and emulation, and at the same time enriching the soil from which they have to reap. There is no difficulty in the sale of good American books; or✔✅✔ at least, whatever discouragement may proceed from the influence of our habitual subserviency to British criticism and British example, or from other causes, it is not chargeable to the competition of cheap British republications. The public understand the cause of the necessary difference of price to cover the cost of copyright to the American author; and, for a book worth reading, are very little disposed to be niggardly in paying it. Certainly the difference of a few shillings in price is more than compensated by the influence of national pride in an American literature,-by the interest in American subjects, on which foreigners are incompetent to write,-and by the increased exertions of the press in behalf of American works, proceeding both from these causes, and from the intimate relationship naturally subsisting between our literary classes and the newspaper press. Again, it should be borne in mind, that the very freedom of competition among our booksellers, in the republication of foreign works of popular interest, necessarily reduces their profits on them down to the very lowest scale possible. If an edition is printed at a price calculated to yield a few cents per volume above a fair remunerating profit for the investment of capital and superintendence, presto, it is supplanted in the market in "twenty-two hours," by a rival edition, bring

ing the price down again to that minimun level. It is manifestly, therefore, the interest of the publisher, as is remarked by Mr. Nicklin in the little volume now before us, and it is his preference and his practice, to invest his capital in American copyright books, in the exclusive sale of which he enjoys legal protection, whenever such as will sell are offered to him. There need be no fear of a want of readers, of an ample public support and patronage, whenever American writers shall obey the impulses of American thought and feeling, and embody and utter the free workings of the American mind,-in harmony with the genius of our national institutions and character, and with the free spirit of the age, which we see in every direction teeming with remarkable phenomena, and symptoms of the dawn of a new era in the world's history. If our literature is now languishing, nerveless, and feebly imitative, it is to other causes that we must look for an explanation of the fact,

for its remedy than to an International Copyright Law.'

To return then to the thread of our former remarks,-the present appeal addresses itself solely to our high and refined liberality, and calls upon us to make a great sacrifice, both of the public convenience, in the widely diffused enjoyment and benefit of cheap books, and of the interests of a very extensive and flourishing branch of trade, involving from thirty to fifty millions of money, and several hundred-thousands of persons,-without even professing to offer any equivalent in exchange. If the proposed reform is consummated, it will certainly be the first time that international relations have been adjusted, by high-minded statesmen, on this pure, magnanimous principle of action-this exemplification of the stoic morality, fiat justitia ruat cælum-this disinterested contempt for the old diplomacy of the quid pro quo, for the sanction of universal usage, and for the example of the very nation from which the present appeal proceeds, in other branches of her legislation on this same subject, and others of a kindred nature. It is true that it is proposed that the operation of the law shall be reciprocal, American authors enjoying in England the same privileges asked at our hands for British authors. It is unnecessary for us, however, to waste time in illustrating the notorious truth, that in practice this reciprocity would be like that of the Irish Ambassador, reciprocal all on one side.

Now we do freely and reverently admit the fiat justitia ruat cælum principle, as the true basis of national morality, greatness, and happiness. Be justice done though the heavens fall! In the conduct of the aggregate millions which constitute the nation, as in the relations of the individual units, honesty is the best policy; and such is the wonderful harmony between the moral and physical constitutions of men and of nations, that no moral wrong can be a

right in policy, on a comprehensive view of real and enlightened principles of self-interest, however fair-seeming the temptations of an immediate expediency. Would to God, indeed, that nations would but trust themselves to this principle, more freely than they do or dare, in the reform of the manifold evils and abuses by which they are afflicted from of old, without the perpetual restraint of motives of expediency, and alarm for the privileges of existing selfish interests, always clamorous for their own perpetuation! If our present laws on this subject involve a violation of a natural right of property of the foreign author, unaffected by the consideration of distinct nationality and the distance of an ocean, in heaven's name let that plague-spot of moral wrong be cleansed out. Let us go and sin no more, however seeming pleasant and profitable the fruits of the unlawful indulgence. And let us, by so noble a sacrifice of interest on the altar of justice, set an example to the other nations of the civilized world, which would be so worthy of the spirit of democratic truth.

But in thus hastening on by our example the gradual march of the nations of the earth towards the millenium of the reign of universal love, peace, truth, virtue, and happiness, let us proceed wisely and calmly,-above all, consistently; for the greatest truth is the harmony of all truths. A too rash and partial precipitation in well-doing is scarcely less to be deprecated than the opposite extreme of obstinate adherence to evil.

What then is the principle of right on which the present appeal to our liberality is founded? It is the sacred principle of property, -the original, inherent, and inviolable right of ownership in the productions of intellectual labor, alleged to exist independently of civil institutions, and of territorial divisions of human society. This is the ground, and no other, on which our national honor is invoked on the present occasion to extend to English authors the privilege of American Copyright.

It is certainly a very singular fact in the history of modern civilization, that while the PRESS has been, by universal admission, the great paramount ruling power which has swayed at will the destinies of men and of nations, the very class who have worked that mighty engine of influence, the thinkers and writers who have poured forth their own minds and infused them into their fellow men, till they have animated and directed the action of the whole social mass, has been perhaps the most heavily burthened and afflicted class of society. What a reproach and a wonder at the same time that this sad proverbial truth has even grown into the tritest of commonplaces. They have been the only class in whose behalf the principle of sacred and inviolable property in the productions of their own self-impelled and original intellectual labor, and the right to a proportionate compensation for the benefit and