Lapas attēli

" American pirates,” by which the unknown traveller was
pleased to designate the publishing houses of America, the
encounter would, in all probability, have diminished little
in its briskness. Our opinion of the conflict at the time was,
and now also upon recollection is, that the American batteries
silenced the English ones, and poured out in the letter of
Mr. Stillman, who had succeeded to the post of Mr. Appleton,
in the enforced absence of the latter, the last triumphant volley
of American uprightness and fairness.

But it is not our purpose to pursue this matter in its
personalities or nationalities; neither is it our duty to adjudi-
cate between the rival English and American contentions.
Our purpose (as our duty also) rather js, first, to state the
question in the clearest and correctest possible manner; and,
secondly, to investigate the causes which have hitherto pre-
vented (whether or not they may still prevent) the adoption
of an international law of copyright between England and
America. Our hope (as also our most reasonable desire) is that
our statement and investigation of the question may prove of
service to the public, both general and legal, of either nation,
by contributing in its own way to the amicable and mutually
beneficial settlement of the matters most commonly in dispute
between English authors (or their publishers) on the one hand,
and American publishers and authors on the other.

The question in dispute briefly stated is this—An English
author or his English publisher have no legal rights against
an American publisher in respect generally of any matter
whatsoever, and, therefore, neither in respect of the parti-
cular matter of copyright in a published book (in the ab-
sence, we mean, of some treaty or convention between the
two countries designed to regulate the particular matter).
Therefore immediately an English work is transmitted to
America in the ordinary course, whether of business or of
opportunity, an American publisher or firm of publishers may
reproduce it with impunity, for the English jurisdiction
over the infringement of the copyright of its subjects is
limited to English territory (domestic or colonial), and the
American infringer is sheltered under the international
maxim derived from the civil law of Rome - Extra ter
ritoriam jus dicenti impunè non parebitur. The English
publisher, or author, has indeed the fullest nominal pro-
tection against the use of the American reproduction of
his work by English subjects resident within the English
jurisdiction, it being as great an infringement of English
copyright to import from abroad as to produce at home
unauthorised (i.e. pirated) copies of an English author's
work; but the rub is not there but here,-namely, the
American publisher in general supplies with his own copies
of the English author's work the whole body of his Ame.
rican countrymen who are interested in the work, and as
the American reading public is infinitely more numerous
than the English one, the English author finds not unfre-
quently that while he makes nothing, or next to nothing,
in England from his labours, some utter stranger to him
makes a large profit of those_same labours in America.
For example, the work of Dr. Erichsen, on Surgery, which
has produced hitherto in England a return of profits
entirely incommensurate with its merits, has enjoyed in
the American unprotected reproduction of it a popularity
so extensive as to procure for its American reproducer--
the so-called pirate of it-a profit which is enormous. Now,
it is true, that the English publisher may in like manner,
and (for the like reason) with the like impunity, reproduce
a work first published in America by an American publisher,
and supply the English reading public who may be inte-
rested in it with these reproduced, i.e., pirated, copies of
it; but whereas the American producer finds the thing in
general to pay, the English would-be producer is deterred
from the attempt by the well-grounded fear that the English
reproduction would prove a pecuniary failure. Thus numbers
have it; and the question is seen to be entirely one of num-
bers, and not a question of legal rightfulness or wrongfulness
at all.

At the same time, however, nations generally exercise
habitually towards each other and to the subjects of each other
a certain comity or friendliness; and nations in particular
which, like the American and the English, have a community
both of origin and of tendency exercise (and are bound to
exercise) habitually towards each other and to the subjects of
each other a comity or friendliness of a livelier and readier
character than can reasonably be expected from nations which
are less allied. And if the Americans had, therefore (as they
have successfully asserted), a claim to the more officious pro-
tection of the English against injury to themselves from causes
over which the English had some control, then by parity of
reasoning the English also have (and may, we imagine, at any
time successfully assert) the like claim upon the Americans
under the like circumstance of the possibility of control. In
short, claims which are strictly of a moral, as distinguished
from a legal, character, are become enforceable between these
two nations mutually, having now in one instance been en-
forced by one of them against the other. Copyright, there-
fore, one might conclude, was the proper subject of such
enforcement, the English author suffering (although not in-
juriously) an admittedly heavy loss through the American
reproduction and quasi infringement of the copyright of his
work. But is copyright really such a subject after all ?. We fancy not—in the particular circumstances of the English and American relation.

The abstract question of an international copyright is by no means either difficult to settle or unsettled. It is not difficult to settle, because all nations who have any pretence to civilisation are agreed in recognising on the one hand, in their municipal or state enactments, the property of an author in his literary works, and also and further in recognising on the other hand, in their general international maxims and conventions, the sacredness of the private properties of aliens, or foreigners; and it is not unsettled, because an international law of copyright does in fact in two instances, at least, exist already ; for example, between England on the one hand, and France and Prussia on the other. But the ques. tion in the concrete application of it to the international relations between England and America in particular is by no means either settled or of easy settlement.

We shall endeavour to indicate the causes of difficulty and of hesitation in settling the question in this its proposed particular concrete application; we shall conclude upon the whole against the expediency of establishing an international law of copyright between England and America, and against the possibility even of its effectual establishment and maintenance; lastly, we shall suggest some simple means of obviating the losses which accrue to English authors from the absence and impossibility of any legal international arrangement.

Now of the causes which have hitherto prevented the establishment of any international convention regulating copyright between England and America, the principal one is the great disparity of interest which the two countries would respectively derive from any such arrangement.

The number of readers in America is greatly more numerous than it is in England; moreover, the number of English writers whose works are largely read is also much greater than that of American ones. The United States reaps, therefore, a sort of quadruple advantage over England from the absence of any international law of copyright between the two countries, inasmuch as not only has she more room for reproduction on her part and is less liable to be reproduced in turn by England, but she also has a larger demand at home for the reproduced works of English authors, while the reproductions of American works (barring those of a legal and historical character) are much less in demand in England. This disparity of interest becomes still more apparent when it is set beside the parity of common or mutual advantage which is derived in the instances of an actually existing international law of copyright by the respective nations who have voluntarily submitted themselves to it. These instances are only two in number, being the international convention between England and France which was established in 1851, and the like convention between England and Prussia which was established in 1856. For in the cases both of France and Prussia, the demand for the productions of English authors and the reciprocal demand for the productions of French and German ones, are nearly equal; and the measure of the mutual and respective interests is also very fairly balanced, a result which may safely be attributed to the comparative equality of all three nations as well in respect of the numbers of their populations as in respect of the quality of their authors and the general tone of the reading and enlightened portions of their public. But in America it is all the other way, the respective populations of England and of the United States being not only greatly disparate, as we have said, in respect of numbers, but the latter country being also greatly backward in the fertility, and even (although with some marked exceptions) in the quality of its authors.

Now where the several prospective interests from the adoption of one principle or policy are so greatly different between two countries, it seems mere folly to expect the country which would suffer by that policy or principle to adopt it. And herein lies, it appears to us, the element of difference between the Alabama Claims (as they are called), which are now the subject of arbitration, and any claims for the quasi infringement of an author's copyright; for in respect of the former class of claims England has admitted, and has repeated and reiterated (we shall not stay to ask with how much remembrance or forgetfulness of dignity), that she is induced to make the concessions which slie has made to America in connection with these claims from a regard to the prospective advantage to her own commerce which she reasonably anticipates from making them, if at any future time she should be at war with some one or more of the European powers, while America was (as she probably would be) neutral.

But it is clearly asking more than the English are entitled to upon the strength of these concessions to insist upon the establishment of an international law of copyright between England and America, as a corollary to the existing Alabama arbitration. It is wonderful how much self-interest determines

right, and how readily a community of interest paves the way for right; but it is also and as much wonderful liow much self-interest, in the absence of the requisite community of interest, blinds us all to what is right, and makes us bandy mutual reproaches, which fit equally upon ourselves as on our neighbours. For instance, Mr. Anthony Trollope, in the paper on International Copyright which he read at Manchester in 1866, upon the occasion of the Social Science Association meeting at that town, used the following arguments (among others) : Admitting the disparity of interest between the two countries, and the vastly greater proportion of interest in America, he proceeded:" But what if it be so? In a great international question shall interest override honesty ?” and again :-“ For myself I will say that I cannot see how any interest, however great, can override justice.”

Now in both these arguments, Mr. Trollope has assumed the point which gives them pith and which he wanted to demonstrate, namely, that the appellatives honesty and justice, with their opposites dishonesty and injustice, are applicable to the case ; and that an English author has any right or claim against American publishers, of such an extent and character as that the denial or refusal of it to him is injustice or dishonesty, for if not, the conflict between interest and justice or between interest and honesty does not arise. It is admitted on all hands, that throughout the question of an Anglo-American law of copyright there is no legal right to question or to withhold: the right (if any) being admittedly one of morality or comity alone. But if the right which is insisted on be merely of this latter character, then it must be taken to be like other matters subject to the well-known limit to the extension of the principle of international comity, which was formulated by Huberus in the third of his three celebrated maxims, namely, that comity is not to extend to prejudice the rights of the citizens of the State exhibiting it. In short self-interest, it would seem (in spite of Mr. Anthony Trollope), is the only and the sole criterion with States in determining upon and in developing a policy, however much the commoner principles of a large commercial intercourse, or the higher and vaguer maxims of religion or of morality, may occasionally operate to the temporary abandonment of the more customary principle. But, indeed, even in private life it is incumbent on the person who claims a benefit for himself to prove the probability of a reciprocal or compensating benefit accruing from it to the party who is asked to give it; at all events, the man who grants his favours without remuneration appears in general to be a fool, and also generally finds he is one.

It will further assist us towards a just conclusion in this matter, if we consider the manner in which the question of an international copyright has been settled between England and those foreign countries which, as being colonies or dependencies of her own, were more amenable to her influence and control. And for this purpose, it is necessary to premise that in virtue of the English Copyright Act (being the Act 5 & 6 Vict. c. 45, cominonly quoted as the

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