CHAPTER VII.

ORIGIN OF THE COPY-RIGHT LAWS IN THE

UNITED STATES.

THE origin and progress of laws, securing to authors the exclusive right of publishing and vending their literary works, constitute an article in the history of a country of no inconsiderable importance. The fol. lowing are the most material facts respecting the origin of the laws on that subject in the United Staes.

In the year 1782, while the American army was lying on the bank of the Hudson, I kept a classical school in Goshen, Orange County, state of New York. I there compiled two small elementary books for teaching the English language. The country was then impoverished; intercourse with Great Britain was interrupted; school-books were scarce and hardly obtainable; and there was no certain prospect of peace.

In the autumn of that year, I rode to Philadelphia for the purpose of showing my manuscripts to gentlemen of influence, and obtaining a law for securing to authors the copy-right of their publications. As the legislatures of New Jersey and Pennsylvania were not then in session, the latter object could not be accomplished. On my way I called on Gov. Livingston then in Trenton, and inquired whether it was probable that a copy-right law could be obtained in New Jersey. The Governor replied that if I would wait till noon, he would consult his council, then in session, and give me an answer. At the time appointed I called again, when the Governor told me the council gave him very little encouragement.

In Princeton, I waited on the Rev. Samuel Stanhope Smith, then professor of theology in Nassau Hall, and afterward president of that insti tution, who examined my manuscripts, recommended the works, and expressed his opinion in favor of copy-right laws. The following is a copy of his opinion.

"Mr. Noah Webster having shown to me a plan of reforming the spelling book of Mr. Dilworth, associating with it an abridgment of Mr. Lowth's Grammar and other articles of knowledge, very proper for young persons in the country; and having shown to me a part of the execution; I do conceive that he proposes many useful improvements in a book of that kind; and that he has executed with judgment that part which he has already finished. Every attempt of this nature undoubtedly merits the encouragement of the public; because it is by such attempts that systems of education are gradually perfected in every country, and the elements of knowledge rendered more easy to be acquired. Men of industry or of talents in any way, have a right to the property of their productions; and it encourages invention and improve. ment to secure it to them by certain laws, as has been practiced in Eu

ropean countries with advantage and success. And it is my opinion that it can be of no evil consequence to the state, and may be of benefit to it, to vest, by a law, the sole right of publishing and vending such works in the authors of them.

Princeton, Sept. 27, 1782.

SAMUEL S. SMITH."

This paper was afterward signed by Archibald Gamble, of the University in Philadelphia.

In October following, I went to Hartford, with a view to petition the legislature of Connecticut, then in session in that place, for a law to secure to me the copy-right of my proposed book. The petition was presented, but too late in the session to obtain a hearing. I then return. ed to Goshen, and devoted the winter to a revision of my manuscripts, and the introduction of some improvements, which had been suggested by gentlemen in Princeton and Philadelphia.

In January, 1783, I prepared another memorial to be presented to the legislature of Connecticut, for the purpose of procuring a copy-right law, which memorial was committed to the care of John Canfield, Esq. But the necessity of it was superseded by the enactment of a general law upon the subject. This law was obtained by the petition of several literary gentlemen in that state.

In the same winter, I went to Kingston in Ulster County, New York, where the legislature was in session, with a view to present a petition for the like purpose. The necessity of such petition was prevented, by the prompt attention of General Schuyler to my request, through whose influence a bill was introduced into the senate, which, at the next session, became a law.

In the same winter, the legislature of Massachusetts enacted a copyright law; procured probably by the agency of the Rev. Timothy Dwight, then a member of the house of representatives.

As Congress, under the confederation, had no power to protect lite rary property, certain gentlemen, among whom was Joel Barlow, pre. sented a memorial to that body, petitioning them to recommend to the several states, the enactment of such a law.

In May, 1783, on the report of Mr. Williamson, Mr. Izard and Mr. Madison, Congress passed a resolution, recommending to the several states to secure to authors or publishers of new books not before printed, the copy-right of such books for a term not less than fourteen years.(Journals, Vol. IV, ed. 1823.)

In December, 1783, Governor Livingston informed me by letter that the legislature of New Jersey had passed a law agreeable to the recom. mendation of Congress.

In May, 1785, I undertook a journey to the middle and southern states, one object of which was to procure copy-right laws to be enacted. I proceeded to Charleston, but the legislature not being in ses. sion, I returned to Baltimore, where I spent the summer.

In November, I visited General Washington at his mansion; he gave me letters to Governor Harrison in Richmond, and to the speakers of both houses of the legislature. The law desired was passed for secu. ring copy-rights.

In December, I visited Annapolis, where the legislature was in session; and in February, I visited Dover, in Delaware, for the same purpose. On petition, the legislature of Delaware appointed a committee to prepare a bill for a copy-right law, just at the close of the session, but the enactment was deferred to the next session.

In the year 1790, Congress enacted their first copy-right law, which superseded all the state laws on the subject.

When I was in England, in 1825, I learned that the British parliament had, a few years before, enacted a new law on copy-rights, by which the rights of authors were much extended. This led me to attempt to procure a new law in the United States, giving a like extension to the rights of authors. My first attempt appears in the following letter.

Extract from a letter to the Hon. DANIEL WEBSTER, dated September 30, 1826.

There is another subject, sir, to which I take the liberty to invite your attention.

Since the celebrated decision, respecting copy-right, by the highest British tribunal, it seems to have been generally admitted that an author has not a permanent and exclusive right to the publication of his original works, at common law; and that he must depend wholly on statutes for his enjoyment of that right. As I firmly believe this decision to be contrary to all our best established principles of right and property; and as I have reason to think such a decision would not now be sanctioned by the authorities of this country, I sincerely desire that while you are a member of the House of Representatives in Congress, your talents may be exerted in placing this species of property on the same footing as all other property, as to exclusive right and permanence of possession. Among all modes of acquiring property, or exclusive ownership, the act or operation of creating or making seems to have the first claim. If any thing can justly give a man an exclusive right to the occupancy and enjoyment of a thing, it must be the fact, that he made it. The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce, is never questioned. What then can make a difference between the produce of muscular strength and the produce of the intellect? If it should be said, that as the purchaser of a bushel of wheat has obtained not only the exclusive right to the use of it for food, but the right to sow it and make increase and profit by it, let it be replied, this is true; but if he sows the wheat, he must sow it on his own ground or soil. The case is different with respect to the copy of a book, which a purchaser has obtained, for the copy-right is the author's soil, which the purchaser can not legally occupy.

Upon what principles, let me ask, can my fellow citizens declare that the productions of the farmer and the artisan shall be protected by common law, or the principles of natural and social right, without a special statute, and without paying a premium for the enjoyment of their property, while they declare that I have only a temporary right to the fruits' of my labor, and even this can not be enjoyed without giving a premium? Are such principles as these consistent with the established doctrines of property, and of moral right and wrong, among an enlightened peo.

ple? Are such principles consistent with the high and honorable notions of justice and equal privileges, which our citizens claim to entertain and to cherish, as characteristic of modern improvements in civil society? How can the recent origin of a particular species of property vary the principles of ownership? I say nothing of the inexpedience of such a policy, as it regards the discouragement of literary exertions. Indeed I can probably say nothing on this subject, that you have not said or thought; at least, I presume you have often contemplated this subject in all its bearings.

The British parliament about ten or twelve years ago, passed a new act on this subject, giving to authors and proprietors of new works, an absolute right to the exclusive use of the copy-right for twenty eight years, with some other provisions which I do not recollect; but the act makes or continues the condition that the author or proprietor shall deposit eleven copies of the work in Stationer's Hall, for the benefit of certain public libraries. This premium will often amount to fifty pounds sterling or more. An effort was made by publishers to obtain a repeal of this provision; but it was opposed by the institutions which were to receive the benefit, and the attempt failed.

I have a great interest in this question, and I think the interest of science and literature in this question are, by no means, inconsiderable.

I sincerely wish our legislature would come at once to the line of right and justice on this subject, and pass a new act, the preamble to which shall admit the principle that an author has, by common law, or natural justice, the sole and permanent right to make profit by his own labor, and that his heirs and assigns shall enjoy the right, unclogged with conditions. The act thus admitting the right would prescribe only the mode by which it shall be ascertained, secured and enjoyed, and violations of the right punished; and perhaps make some provisions for the case of attempts to elude the statute by slight alterations of books by mutilations and transpositions.

Excuse me, sir, for the trouble I give you, and believe me with much respect, your obedient servant, N. WEBSTER. Hon. Daniel Webster.

To this letter Mr. Webster returned the following answer.

Boston, October 14, 1826.

DEAR SIR-I have received yours of the 30th of September, and shall with your permission, lay it before the committee of the judiciary next session, as that committee has in contemplation some important changes in the law respecting copy-right. Your opinion, in the abstract, is cer tainly right and uncontrovertible. Authorship is, in its nature, ground of property. Most people, I think, are as well satisfied, (or better) with the reasoning of Mr. Justice Yates, as with that of Lord Mansfield, in the great case of Miller and Taylor. But after all, property, in the social state, must be the creature of law; and it is a question of expedi ency, high and general, not particular expediency, how and how far, the rights of authorship should be protected. I confess frankly, that I see, or think I see, objections to make it perpetual. At the same

time I am willing to extend it further than at present, and am fully pursuaded that it ought to be relieved from all charges, such as depositing copies, &c. Yours,

Dr. N. Webster.

D. WEBSTER.

In the autumn of 1827, I applied to the Hon. Mr. Ingersoll, a representative from Connecticut, stating to him the facts of an extension of copy-right in Great Britain, as also in France, and requesting him to use his influence to have a bill for a new law brought forward in Congress. Mr. Ingersoll very cheerfully complied. On the 17th December, on the motion of Mr. Ingersoll, the House of Representatives “resolved, that the committee on the judiciary inquire into the expediency of extending the time for which copy-rights may be hereafter secured to authors, beyond the period now allowed by law; and also of affording further protection to authors against the publication of abridgments or summaries of works, after the copy-rights thereof have been secured." As the committee delayed several weeks to make a report, Mr. Ingersoll conversed fully on the subject with one of the members, and addressed a note to the committee, in which he stated the provision of the British statute 34th, Geo. 3, enlarging the rights of authors, and the liberal provisions of the French laws on the subject. He stated some of the defects of the old law of the United States, and urged the expediency and justice of a more liberal law.

A petition signed by many respectable literary men, was, about this time, presented to Congress, praying for the same object. Some members of the committee were opposed to the measure; but at length, on the first of February, 1828, the committee reported a bill consisting of three sections only, extending the term of copy-rights from fourteen to twenty eight years, and securing the benefit of the act to authors who had previously obtained a copy-right under the old law.

On the 21st of February, Mr. Verplanck submitted to the House of Representatives an amendment to the bill reported by the committee, entitled an Amendment to a Bill to amend and consolidate the Acts respecting Copy-Rights." This amendment was printed by order of the House. It was intended to embrace all the material provisions of the two former laws, and those of the bill reported by the judiciary committee; it contained also some additional improvements. Nothing further was done, and the bill and amendment died at the close of the session.

At the next session (1829-30) the Hon. Mr. Ellsworth, a member from Connecticut, was appointed one of the judiciary committee, of which the Hon. Mr. Buchanan was chairman. Before Mr. Ellsworth left home, I applied to him to make efforts to procure the enactment of a new copy-right law; and sent a petition to Congress, praying for the renewal of the copy-right of one of my books. This petition, being referred to the judiciary committee, brought the subject distinctly into consideration. After consultation, the committee authorized Mr. Ellsworth to prepare a bill for a general law on the subject.

In order to present the subject in its true light to the committee and to Congress, Mr. Ellsworth wrote notes to the ministers of the principal