More on Copyright.
While sympathizing with Mr. Tucker’s opposition to those who favor a perpetual monopoly of ideas, and agreeing with him in regarding that notion as too silly to require any force for its refutation, I cannot admit that he has been successful in showing that those who accept Alphonse Karr’s view that literary property is a property, allowing of no equitable limitation, either in time or in space, of its exclusive enjoyment by its author, are chargeable with the belief in perpetual monopoly of ideas. Is it, then, so self-evident that the belief in literary property is equivalent to belief in monopoly of ideas that Mr. Tucker is justified in withholding his proof of this identity? For my part, I think I discover a vital distinction between these two things, and, if I am right, the strong argument against monopoly in ideas loses all its force when directed against literary property. Let us recall the argument:Ideas may be said to be the raw material of nature’s invisible realm, and there is no more justification for the claim of a 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 oilto ownership of the entire oil region or petroleum product.The central injustice of . . . . 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.Now I claim that these objections do not in the least degree apply to the matter of copyright. Were I to argue that Spencer ought to be allowed the exclusive ownership of his literary property in precisely the same manner that he is allowed the ownership of the furniture which he gets in exchange for his own products, Mr. Tucker could not gainsay me: he would find himself without any weapons of offence or defence. For surely it would be absurd to say thatsome other man or might might, and in many cases very probably would, have (written) tomorrowwhat Spencer has written today. Instead of beingvery probable,it is simply beyond all possibility. If Spencer had not been born, it is probable that some other man or men would by this time have discovered the ideas and truths with which his name is identified; but the world would never have had Spencer’s books. The method, the style, the manner, the peculiarities of all kinds due to his physical, mental, and moral traits, these no other man might or would under any circumstances bring. What is true of Spencer is true of Shakspere, of Byron, of Proudhon, of Comte, of Tennyson. Since men began to write, no such occurrence has taken place as the production of two similar quatrains, or two ten-line paragraphs, by two independent men. The writings of no two men are ever alike; because no two men are mentally and morally alike, although hundreds of men hold common beliefs and have thought and emotions in common. Take a hundred writers, more or less equal in advantages, or even exactly equal, and put a given question to them, to be answered by each in a given number of words, and no two of them will ever produce answers identical in style and language, while many of them may agree in the substance, the idea of the answer. (Of course I do not refer to matters known to all and habitually spoken of by all in fixed terms.) Such being the case, it is not true that literary property is property in ideas. Copyright would not prevent anyone’s writing a book to express the same ideas that Spencer has expressed; it would simply prevent the appropriation of the fruits of his toil. Spencer goes to nature’s store of raw material and discovers a piece of vacant (invisible) land. He settles upon it, erects improvements, adorns it, and makes it a thing of beauty and joy forever. The improvements and adornments are his. The book is his, the ideas are not. The same ideas are found in other books of the time. But if we choose to read his book, we must pay him for it. Suppose printing to be unknown; should we not have to pay Spencer for reading his manuscript? Does printing make that right which was obviously wrong prior to its invention?
Turning to the practical aspect of the question, it is evident that copyright would not tend to impede the diffusion of valuable knowledge or hinder the advance of science or philosophy. Ideas being common property, competition among the writers would keep the prices of books at a reasonably low limit. The larger the number of readers, the larger the income, and the wider the fame. Even where competition did not enter as a factor, as in the case of literary giants and exceptional geniuses, the desire to be known and honored and loved by the greatest possible number of people would result in the same effect. To be sure, the income of a genius, or of his heirs, would always remain larger than the income of average writers; but there is no more injustice in that than in the fact that great singers and actors commandl arger pay than those of average ability and talent.
Do I, then, favor copyright? I am not ready to say that I do; only I see no good reason for not favoring it. As an Anarchist I can only say that the State, being, as it is, supported by compulsory taxes and generally objectionable to me for multitudinous reasons, is not the proper agency for enforcing that right, if a right it be. That is, I can only go as far as Mr. Pentecost, and require further evidence before making a decision upon the equity or non-equity of copyright itself. Anarchists, as Anarchists, are not logically obliged to pronounce against copyright. Their principle of equal liberty is not violated by copyright, provided such right to literary property is enforced by voluntary associations. The question of copyright or no copyright must be discussed, as Mr. Tucker says, independently of the question of State or voluntary protection. I merely state, and have endeavored to show, that Mr. Tucker’s argument, entirely applicable to patent rights, is as completely inapplicable to copyright.
One would naturally suppose, I think, from reading the foregoing, that the point raised was a novel one in the pages of Liberty, and that I had never met it or attempted to meet it.
I think I discover, says Mr. Yarros,
a vital distinction between literary property and property in ideas; and he prefers against me a charge of withholding proof of an identity of these two things which I am represented as proclaiming. (It should be noted straightway that I do not hold that these things are identical, since I regard property in ideas as a whole of which literary property is a part, and a part cannot be identical with a whole.) Upon which Mr. Yarros proceeds to tell me that I could not gainsay him if he were to
argue that Spencer ought to be allowed the exclusive ownership of his literary property in precisely the same manner that he is allowed the ownership of the furniture which he gets in exchange for his own products, and that in such a case I should have no weapons of offence or defence. Now, if Mr. Yarros will turn back to No. 128 of Liberty, bearing the date of July 7, 1888, he will there find that this distinction which he thinks he has discovered appears in quotations made by me from an article by Henry George in the Standard of June 23, 1888, and that I then and there gainsaid both the distinction and the argument with a weapon, which, whether of offence or defence, in my judgment made short work of them as presented by Mr. George and makes equally short work of them as presented by Mr. Yarros. The proof, then, has not been withheld by me, but disregarded by Mr. Yarros, since he substantially restates Mr. George’s view without heeding my reply. I am the more surprised because, Mr. Yarros’s connection with Liberty having been almost as close in 1888 as it is now, I had supposed, in the absence of any sign to the contrary, that my reply was entirely satisfactory to him. But it seems now either that it was not or that it made little impression upon him and has accordingly escaped his memory. In view of the probability of the latter, and since another close reader of and writer for Liberty has recently in conversation betrayed a similar obliviousness, and since it is likely therefore that the general reader has likewise forgotten the article in question, and since I consider it one of my best and most successful efforts (though short and on a subject less important than some others I have treated),—in view of this series of considerations, I say, I deem it best to reprint the important portion of my apparently neglected editorial and to urge for it careful consideration. Referring to Mr. George’s article on copyright in the Standard, I wrote as follows:
A correspondent having raised the question of property in ideas, Mr. George discusses it elaborately. Taking his stand upon the principle that productive labor is the true basis of the right of property, he argues through three columns, with all the consummate ability for which credit is given him above, to the triumphant vindication of the position that there can rightfully be no such thing as the exclusive ownership of an idea.
No man, he says,can justly claim ownership in natural laws, nor in any of the relations which may be perceived by the human mind, nor in any of the potentialities which nature holds for it. . . . Ownership comes from production. It cannot come from discovery. Discovery can give no right of ownership. . . . No man can discover anything which, so to speak, was not put there to be discovered, and which some one else might not in time have discovered. If he finds it, it was not lost. It, or its potentiality, existed before he came. It was there to be found. . . . In the production of any material thing—a machine, for instance—there are two separable parts,—the abstract idea or principle, which may be usually expressed by drawing, by writing, or by word of mouth; and the concrete form of the particular machine itself, which is produced by bringing together in certain relations certain quantities and qualities of matter, such as wood, steel, brass, brick, rubber, cloth, etc. There are two modes in which labor goes to the making of the machine,—the one in ascertaining the principle on which such machines can be made to work; the other in obtaining from their natural reservoirs and bringing together and fashioning into shape the quantities and qualities of matter which in their combination constitute the concrete machine. In the first mode labor is expended in discovery. In the second mode it is expended in production. The work of discovery may be done once for all, as in the case of the discovery in prehistoric time of the principle or idea of the wheelbarrow. But the work of production is required afresh in the case of each particular thing. No matter how many thousand millions of wheelbarrows have been produced, it requires fresh labor of production to make another one. . . . The natural reward of labor expended in discovery is in the use that can be made of the discovery without interference with the right of any one else to use it. But to this natural reward our patent laws endeavor to add an artificial reward. Although the effect of giving to the discoverers of useful devices or processes an absolute right to their exclusive use would be to burden all industry with most grievous monopolies, and to greatly retard, if not put a stop to, further inventions, yet the theory of our patent laws is that we can stimulate discoveries by giving a modified right of ownership in their use for a term of years. In this we seek by special laws to give a special reward to labor expended in discovery, which does not belong to it of natural right, and is of the nature of a bounty. But as for labor expended in the second of these modes,—in the production of the machine by the bringing together in certain relations of certain quantities and qualities of matter,—we need no special laws to reward that. Absolute ownership attaches to the results of such labor, not by special law, but by common law. And if all human laws were abolished, men would still hold that, whether it were a wheelbarrow or a phonograph, the concrete thing belonged to the man who produced it. And this, not for a term of years, but in perpetuity. It would pass at his death to his heirs or to those to whom he devised it.
The whole preceding paragraph is quoted from Mr. George’s article. I regard it as conclusive, unanswerable. It proceeds, it will be noted, entirely by the method of ergo. But it is time for the philosopher to disappear. He has done his part of the work, which was the demolition of patents. Now it is the prestidigitator’s turn. It remains for him to justify copyright,—that is, property, not in the ideas set forth in a book, but in the manner of expressing them. So juggler George steps upon the scene. Presto! he exclaims:Over and above anyObserve how cunningly it is taken for granted here that the task of giving literary expression to an idea is labor of production rather than labor of discovery. But is it so? Right here comes in the juggler’s trick: we will subject it to the philosopher’s test. The latter has already been quoted:labor of discoveryexpended in thinking out what to say, is thelabor of productionexpended on how to say it.The work of discovery may be done once for all . . . but the work of production is required afresh in the case of each particular thing.Can anything be plainer than that he who does the work of combining words for the expression of an idea saves just that amount of labor to all who thereafter choose to use the same words in the same order to express the same idea, and that this work, not being required afresh in each particular case, is not work of production, and that, not being work of production, it gives no right of property? In quoting Mr. George above I did not have to expend any labor onhow to saywhat he had already said. He had saved me that trouble. I simply had to write and print the words on fresh sheets of paper. These sheets of paper belong to me, just as the sheets of paper on which he wrote and printed belong to him. But the particular combination of words belongs to neither of us.  He discovered it, it is true, but that fact gives him no right to it. Why not? Because, to use his own phrases, this combination of wordsexisted potentially before he came;it was there to be found; and if he had not found it, some one else would or might have done so. The work of copying or printing books is analogous to the production of wheelbarrows, but the original work of the author, whether in thinking or composing, is analogous to the invention of the wheelbarrow; and the same argument that demolishes the right of the inventor demolishes the right of the author. The method of expressing an idea is itself an idea, and therefore not appropriable.
It goes without saying, of course, that the imputation which I cast upon Mr. George’s motives does not apply to Mr. Yarros in the smallest degree. But in other respects the similarity of their positions is striking. Mr. Yarros’s distinction between the probability of the rediscovery of an idea and what he considers the impossibility of the rediscovery of a form of literary expression differs in no essential from Mr. George’s distinction between work of discovery and work of production. Mr. George’s is the more elaborate, more
adorned if you will, but it unquestionably contains the idea that work of discovery implies the possibility of rediscovery, while work of production excludes it: and it is on this ground that the form devised to express an idea is itself an idea, and therefore falls under the general law of no-property in ideas.
To discuss degrees of probability or possibility in this connection, as Mr. Yarros does, is to shoot wide of the mark. Such questions as this are not to be decided by rule of thumb or by the law of chances, but in accordance with some general principle. In the sentence which Mr. Yarros quotes from me regarding the central injustice of copyright and patent law, the clause Spencer’s Principles of Psychology, it remains true that the chance thereof cannot be placed beyond the limit of possibility, which justifies me, if I so choose, in falling back upon my right and insisting that I shall not be deprived of it. Among the things not logically impossible, I know of few nearer the limit of possibility than that I should ever desire to publish Liberty in the middle of the Desert of Sahara; nevertheless, this would scarcely justify any great political power in giving Stanley a right to stake out a claim comprising the entire region and forbid me to set up a printing-press in any part of it without paying him rent. Into none of these matters does the question of degree of probability enter.
But Mr. Yarros gives indication of seeing this, for he says only a few words regarding degree, and then proceeds to argue that rediscovery of literary expression is
beyond all possibility. This is not wide of the mark; on the contrary, it is strictly à propos. But it is absurd, as I think Mr. Yarros will see on further reflection. For when, setting aside degree, we attempt to maintain impossibility, we must maintain logical, inherent, intrinsic impossibility. Now, a single consideration will show us that rediscovery of literary expression is not logically impossible. If an immense number of letters of the alphabet should be thrown into the air, there would be many billions of forms in which they might fall to the ground. One of these forms is the play of Hamlet, and it obviously cannot be denied that the letters stand the same chance of falling in this form as of falling in any other single form out of the many billions in some one of which they must fall. This at once disposes of the claim of logical impossibility. I might go on to show how the addition of intellect to chance vastly increases the possibility, but it is needless; the test of chance alone is sufficient to sustain my position.
Here I might stop with perfect justice to myself; but perhaps it is well to glance at some of the further arguments made by Mr. Yarros. For instance, his extension of my analogy of ideas to land.
Spencer, he says,
goes to nature’s store of raw material and discovers a piece of vacant (invisible) land. He settles upon it, erects improvements, adorns it, and makes it a thing of beauty and a joy forever. The improvements and adornments are his. The book is his, the ideas are not. My analogy is perfect, but Mr. Yarros’s extension of it will not hold. Why? Because, when a man improves and adorns vacant land, he does not thereby prevent his neighbor from similarly improving and adorning other vacant land; but the man who is granted a perpetual copyright on his improvements and adornments of an idea excludes all other men from making similar improvements and adornments. It cannot be repeated too often that such improvements are in themselves ideas and are to be treated like other ideas.
Again, Mr. Yarros urges:
Suppose printing to be unknown: should we not have to pay Spencer for reading his manuscript? Does printing make that right which was obviously wrong prior to its invention? The proper distinction to be made here is not between reading on the one hand and printing on the other, but between reading, writing, printing, or any other forms of expression used privately, on the one hand, and publication on the other. It is by the act of publication that an author relinquishes his right. And even this is not strictly accurate, for, having no right, he can relinquish none. He only relinquishes a power which theretofore had been guarded by other rights,—the right of inviolability of person, the right of privacy of domicile, and the right of contract. Whether an author writes or prints his book, no one can touch it as long as he carries it in his pocket or keeps it in his desk. He may read it to his friend under pledge of secrecy, and the friend is bound in honor not to reveal it. He may read it to a company of strangers, making a contract with each to observe his confidence, and they must carry out their contract. But in all these cases the thing respected is not the author’s property in his idea, but those personal rights which he enjoys in common with all individuals, and as long as he keeps his ideas within the precincts, so to speak, of these personal rights, he can retain his power over it until some one else discovers it as he did. But let him read his manuscript to a miscellaneous audience or offer his book for sale to all comers, and his power vanishes straightway. Suppose printing to be unknown, and Spencer to sell copies of his manuscript; would not the purchaser of a copy have a right to read it to an audience? If so, upon the invention of printing, would not this same purchaser have a right to print the book and distribute it? I reverse Mr. Yarros’s question, and ask him:
Does printing make that wrong which was obviously right prior to its invention?
I cannot admit Mr. Yarros’s view of the effect, under copyright, of competition and the love of fame and honor. The facts do not sustain it. Hugo undoubtedly loved fame and honor: why has there never been a cheap edition of his works in France? And, setting aside the towering geniuses, why, in countries where there is both national and international copyright, do the works of living authors command prices two and three times as high as those of dead whose copyrights have expired? Every successful author, great or small, has his public, and, under copyright, this public will buy his books at his price, even though the works of other authors less to their taste can be had for less money.
Mr. Yarros thinks there is no more injustice in the excess of the income of a literary genius over that of an average writer than in the excess of a great singer’s salary over that paid to an inferior artist. Perhaps not, from the standpoint of that power which endowed the writer with the superior genius and the singer with superior vocal organs. But from the human standpoint this undue inequality, though equally unfortunate in both cases, is more unjust in the former, for the reason that the writer cannot get the excessive income without the intervention of man, while the artist cannot bep revented from getting it except by the intervention of man. We cannot say to Patti:
You shall sing for five dollars an hour (a price at which she would gladly sing if there were a thousand Pattis), for that would set a precedent for State interference in the fixing of wages and prices which would lead to much worse evils; but we can say to Tennyson:
You may get as much as you can for your poems, but we will not protect you against competition, for in so doing we practise laissez-faire, the essential basis of social harmony.
It must not be inferred that I wish to deprive the authors of reasonable rewards for their labor. On the contrary, I wish to help them secure such, and I believe that there are Anarchistic methods of doing so. As we have gained an Anarchistic instrument of hindrance in the boycott, so, I think, we shall gain an analogous Anarchistic instrument of help. But whatever method may be adopted, I am sure that Anarchy will not prohibit the reproduction of books by others after publication. For, despite Mr. Yarros’s opinion, I think that such a course is un-Anarchistic. Indeed, what more glaring violation of equal liberty than when a liberty enjoyed equally by all to produce, if they can, a certain unwritten book, becomes, after the book has been written, invested, by the act of copyright, in one man, and is stripped from all others?