The Question of Copyright.
Rev. M. A. Kelsey, of Hart, Mich., writing in the Voice, asks
as to the moral difference between a time limitation and a territorial limitation. Why, if it is just to say to an author, your right to control of your production shall be limited to a term of years, is it not just to say, your right shall also be limited to certain territory? Mr. Kelsey has anticipated me. It has been my intention for several weeks to make this very point against international copyright. Possibly the argument is not a new one, but it seems to me decisive when addressed to those friends of copyright who think it would be unjust to make the monopoly perpetual, but on the other hand deem it unjust not to make it international. Of course it has no force against those who favor a perpetual monopoly of ideas, but their position is so excessively silly that against it no force is required. Believers in a time limit to copyright may answer that all who benefit by an author’s works should be taxed alike to remunerate him. But if that is so, why free the succeeding generations from this tax? And if the rejoinder shall come that the succeeding generation will have its own authors to remunerate, this will again be met by the consideration that so has each nation its own authors to remunerate. If, according to the famous saying of Alphonse Karr,
literary property is a property, then there is no just limit to it, either in time or in space; but if, according to men wiser than Karr though not as witty, it is not a property, but simply a legal device to secure adequate remuneration of authors, then any limit is just, whether of time or space or both, which accomplishes the end.
So far I have been arguing the case of national copyright against international copyright; but for my own part I can favor neither. Copyright, in any form and under any limitation, is an injustice. Not, however, for the reason given by Mr. Pentecost, who acknowledges literary property and says that copyright is unjust only because it is enforced by officials paid from a treasury filled by compulsory taxation. This is very much as if he were to say that though it is unjust to keep people off vacant land by the aid of the state, it would be perfectly just to keep them off by hired Pinkerton men, Compulsory taxation adds an extra injustice to everything that it touches, but it is not always the only injustice; in the matter of copyright, as in the matter of land, there is a question of equity that is independent of compulsory taxation. Just as land is the raw material of nature’s visible realm, so ideas may be said to be the raw material of nature’s invisible realm, and there is no more justification for the claim of the discoverer of an idea to exclusive use of it than there would have been for a claim on the part of the man who first
struck oil to ownership of the entire oil region or petroleum product. When Mr. Pentecost becomes a
vacant lander in the realm of thought and literature, he will be able to treat the copyright question intelligently; but, when he discusses the matter from his present standpoint, he gives his case completely away. The central injustice of copyright and patent law is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today, although some other man or men might, and in many cases very probably would, have discovered it tomorrow.
This view of copyright will not win the assent of the people for a very long time. Copyright is one of the most difficult problems of political economy, and the idea involved in its true solution is too subtle to be promptly grasped by people or politicians. It stands at great disadvantage beside the captivating simplicity of Alphonse Karr’s proposition that
literary property is a property and beside the plausible pharisaic morality of the proclamation of the Godkins and the Gilders that all who deny it are thieves. These people have just won a victory in the passage of the international copyright bill, and it is my opinion that they will win others before they are finally overthrown. But they really ought to be more polite, for the thieving is on their side. The new bill is simply a big steal. The claim is that it will benefit American authors and American literature and the American people, but it will do nothing of the kind. Those whom it will really benefit are those foreign authors who are already overpaid and will now get doubly paid, and still more the larger and older American publishing houses who have seen their palmy days of big profits very properly vanish in face of the competition of the
pirates. These publishers, by using American authors as catspaws and by taking American printers into the steal, have finally accomplished their design, and the sufferers will be the American people, who will gradually be deprived of their cheap literature. The international copyright bill is simply another manifestation of McKinleyism.
I recommend those who claim that the idea of literary property advances with liberty and civilization to study the following tables showing the term of copyright in the different countries of the world.
Mexico, Guatemala, and Venezuela, perpetual.
Colombia and Spain, author’s life and eighty years after.
Ecuador, Peru, Tunis, Russia, Norway, and Belgium, author’s life and fifty years after.
Hayti, author’s life, widow’s life, children’s lives, and twenty years after the close of the latest period.
Italy, author’s life and forty years after; eighty years in any event.
France, Germany, Austria, and Switzerland, author’s life and thirty years after.
Brazil, Sweden, and Roumania, author’s life and ten years after.
South Africa, author’s life; fifty years in any event.
Denmark and Holland, fifty years.
Japan, author’s life and five years after.
Bolivia, author’s life and seven years after; forty-two years in any event.
Great Britain, author’s life and seven years after; forty-two years in any event.
United States, twenty-eight years, with right of extension for fourteen more.
From this table it would be almost justifiable to frame the law that the length of the term of copyright in a nation is inversely proportional to the height of its civilization.