The preservation of literature through public libraries has been and will ever be one of the most signal benefits which civilization has brought to mankind. When we consider the multitude of books which have perished from the earth, from the want of a preserving hand, a lively sense of regret comes over us that so few libraries have been charged with the duty of acquiring and keeping every publication that comes from the press. Yet we owe an immeasurable debt to the wisdom and far-sightedness of those who, centuries ago, provided by this means for the perpetuity of literature.

The earliest step taken in this direction appears to have been in France. By an ordinance proclaimed in 1537, regulating the printing of books, it was required that a copy of each work issued from the press should be deposited in the royal library. And it was distinctly affirmed that the ground of this exaction was to preserve to posterity the literature of the time, which might otherwise disappear.[2] This edict of three centuries and a half ago was the seed-grain from which has grown the largest library yet gathered in the world—the BibliothÈque Nationale of France. It antedated by more than two hundred years, any similar provision in England for the preservation of the national literature.

It is a notable fact that the United States of America was the first nation that ever embodied the principle of protection to the rights of authors in its fundamental law. "The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Thus anchored in the Constitution itself, this principle has been further recognized by repeated acts of Congress, aimed in all cases at giving it full practical effect.

If it is asked why the authors of the Constitution gave to Congress no plenary power, which might have authorized a grant of copyright in perpetuity, the answer is, that in this, British precedent had a great, if not a controlling influence. Copyright in England, by virtue of the statute of Anne, passed in 1710 (the first British copyright act), was limited to fourteen years, with right of renewal, by a living author, of only fourteen years more; and this was in full force in 1787, when our Constitution was framed. Prior to the British statute of 1710, authors had only what is called a common law right to their writings; and however good such a right might be, so long as they held them in manuscript, the protection to printed books was extremely uncertain and precarious.

It has been held, indeed, that all copyright laws, so far from maintaining an exclusive property right to authors, do in effect deny it (at least in the sense of a natural right), by explicitly limiting the term of exclusive ownership, which might otherwise be held (as in other property) to be perpetual. But there is a radical distinction between the products of the brain, when put in the concrete form of books and multiplied by the art of printing, and the land or other property which is held by common law tenure. Society views the absolute or exclusive property in books or inventions as a monopoly. While a monopoly may be justified for a reasonable number of years, on the obvious ground of securing to their originators the pecuniary benefit of their own ideas, a perpetual monopoly is generally regarded as odious and unjust. Hence society says to the author or inventor: "Put your ideas into material form, and we will guarantee you the exclusive right to multiply and sell your books or your inventions for a term long enough to secure a fair reward to you and to your family; after that period we want your monopoly, with its individual benefits, to cease in favor of the greatest good of all." If this appears unfair to authors, who contribute so greatly to the instruction and the advancement of mankind, it is to be considered that a perpetual copyright would (1) largely increase the cost of books, which should be most widely diffused for the public benefit, prolonging the enhanced cost indefinitely beyond the author's lifetime; (2) it would benefit by a special privilege, prolonged without limit, a class of book manufacturers or publishers who act as middle-men between the author and the public, and who own, in most cases, the entire property in the works of authors deceased, and which they did not originate; (3) it would amount in a few centuries to so vast a sum, taxed upon the community who buy books, that the publishers of Shakespeare's works, for example, who under perpetual copyright could alone print the poet's writings, might have reaped colossal fortunes, perhaps unequalled by any private wealth yet amassed in the world.

If it is said that copyright, thus limited, is a purely arbitrary right, it may be answered that all legal provisions are arbitrary. That which is an absolute or natural right, so long as held in idea or in manuscript, becomes, when given to the world in multiplied copies, the creature of law. The most that authors can fairly claim is a sufficiently prolonged exclusive right to guarantee them for a lifetime the just reward of their labors, with a reversion for their immediate heirs. That such exclusive rights should run to their remotest posterity, or, a fortiori, to mere merchants or artificers who had no hand whatever in the creation of the intellectual work thus protected, would be manifestly unjust. The judicial tribunals, both in England and America, have held that copyright laws do not affirm an existing right, but create a right, with special privileges not before existing, and also with special limitations.

The earliest copyright enactment of 1790 granted the exclusive privilege of printing his work to the author or his assigns for 14 + 14, or twenty-eight years in all.

The act further required entry of the title, before publication, in the office of the Clerk of the United States District Court in the State where the author or proprietor resided.

This remained the law, with slight amendment, until 1831, when a new copyright act extended the duration of copyright from fourteen to twenty-eight years for the original, or first term, with right of renewal to the author (now first extended to his widow or children, in case of his decease) for fourteen additional years, making forty-two years in all.

By the same act the privilege of copyright was extended to cover musical compositions, as it had been earlier extended (in 1802) to include designs, engravings, and etchings. Copyright was further extended in 1856 to dramatic compositions, and in 1865 to photographs and negatives thereof. In 1870 a new copyright code, to take the place of all existing and scattered statutes, was enacted, and there were added to the lawful subjects of copyright, paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts. And finally, by act of March 3, 1891, the benefits of copyright were extended so as to embrace foreign authors. In 1897, Congress created the office of Register of Copyrights, but continued the Copyright office, with its records, in the Library of Congress.

In 1846, the first enactment entitling the Library of the United States Government to a copy of every work protected by copyright was passed. This act, to establish the Smithsonian Institution, required that one copy of each copyright publication be deposited therein, and one copy in the Library of Congress. No penalties were provided, and in 1859, on complaint of the authorities of the Smithsonian Institution that the law brought in much trash in the shape of articles which were not books, the law was repealed, with the apparent concurrence of those in charge of the Congressional Library.

This left that Library without any accessions of copyright books until 1865, when, at the instance of the present writer, the Library Committee recommended, and Congress passed an act restoring the privilege to the Library of Congress. But it was found to require, in order to its enforcement, frequent visits to the records of the clerks of United States District Courts in many cities, with costly transcripts of records in more than thirty other offices, in order to ascertain what books had actually been copyrighted. To this was added the necessity of issuing demands upon delinquent authors or publishers for books not sent to the Library; no residence of the delinquents, however, being found in any of the records, which simply recorded those claiming copyright as "of the said District."

It resulted that no complete, nor even approximate compliance with the law was secured, and after five years' trial, the Librarian was obliged to bring before the committees of Congress the plan of a copyright registry at the seat of government, as had been the requirement in the case of Patents from the beginning.

The law of copyright, as codified by act of July 8, 1870, made an epoch in the copyright system of the United States. It transferred the entire registry of books and other publications, under copyright law, to the city of Washington, and made the Librarian of Congress sole register of copyrights, instead of the clerks of the District Courts of the United States. Manifold reasons existed for this radical change, and those which were most influential with Congress in making it were the following:

1. The transfer of the copyright records to Washington it was foreseen would concentrate and simplify the business, and this was a cardinal point. Prior to 1870 there were between forty and fifty separate and distinct authorities for issuing copyrights. The American people were put to much trouble to find out where to apply, in the complicated system of District Courts, several of them frequently in a single State, to enter titles for publication. They were required to make entry in the district where the applicant resided, and this was frequently a matter of doubt. Moreover, they were required to go to the expense and trouble of transmitting a copy of the work, after publication, to the District clerk, and another copy to the Library of Congress. Were both copies mailed to Washington (post-free by law) this duty would be diminished by one-half.

2. A copyright work is not an invention nor a patent; it is a contribution to literature. It is not material, but intellectual, and has no natural relation to a department which is charged with the care of the mechanic arts; and it belongs rather to a national library system than to any other department of the civil service. The responsibility of caring for it would be an incident to the similar labors already devolved upon the Librarian of Congress; and the receipts from copyright certificates would much more than pay its expense, thus leaving the treasury the gainer by the change.

3. The advantage of securing to our national library a complete collection of all American copyright publications can scarcely be over-estimated. If such a law as that enacted in 1870 had been enforced since the beginning of the government, we should now have in the Library of Congress a complete representation of the product of the American mind in every department of science and literature. Many publications which are printed in small editions, or which become "out of print" from the many accidents which continually destroy books, would owe to such a library their sole chance of preservation. We ought to have one comprehensive library in the country, and that belonging to the nation, whose aim it should be to preserve the books which other libraries have not the room nor the means to procure.

4. This consideration assumes additional weight when it is remembered that the Library of Congress is freely open to the public day and evening throughout the year, and is rapidly becoming the great reference library of the country, resorted to not only by Congress and the residents of Washington, but by students and writers from all parts of the Union, in search of references and authorities not elsewhere to be found. The advantage of having all American publications accessible upon inquiry would be to build up at Washington a truly national library, approximately complete and available to all the people.

These considerations prevailed with Congress to effect the amendment in copyright registration referred to.By enactment of the statute of 1870 all the defects in the methods of registration and deposit of copies were obviated. The original records of copyright in all the States were thenceforward kept in the office of the Librarian of Congress. All questions as to literary property, involving a search of records to determine points of validity, such as priority of entry, names and residence of actual owners, transfers or assignments, timely deposit of the required copies, etc., could be determined upon inquiry at a single office of record. These inquiries are extremely numerous, and obviously very important, involving frequently large interests in valuable publications in which litigation to establish the rights of authors, publishers or infringers has been commenced or threatened. By the full records of copyright entries thus preserved, moreover, the Library of Congress (which is the property of the nation) has been enabled to secure what was before unattainable, namely, an approximately complete collection of all American books, etc., protected by copyright, since the legislation referred to went into effect. The system has been found in practice to give general satisfaction; the manner of securing copyright has been made plain and easy to all, the office of record being now a matter of public notoriety; and the test of experience during thirty years has established the system so thoroughly that none would be found to favor a return to the former methods.

The Act of 1870 provided for the removal of the collection of copyright books and other publications from the over-crowded Patent Office to the Library of Congress. These publications were the accumulations of about eighty years, received from the United States District Clerks' offices under the old law. By request of the Commissioner of Patents all the law books and a large number of technical works were reserved at the Department of the Interior. The residue, when removed to the Capitol, were found to number 23,070 volumes, a much smaller number than had been anticipated, in view of the length of time during which the copy tax had been in operation. But the observance of the acts requiring deposits of copyright publications with the Clerks of the United States District Courts had been very defective (no penalty being provided for non-compliance), and, moreover, the Patent Office had failed to receive from the offices of original deposit large numbers of publications which should have been sent to Washington. From one of the oldest States in the Union not a single book had been sent in evidence of copyright. The books, however, which were added to the Congressional Library, although consisting largely of school books and the minor literature of the last half century, comprised many valuable additions to the collection of American books, which it should be the aim of a National Library to render complete. Among them were the earliest editions of the works of many well-known writers, now out of print and scarce.

The first book ever entered for copyright privileges under the laws of the United States was "The Philadelphia Spelling Book," which was registered in the Clerk's Office of the District of Pennsylvania, June 9, 1790, by John Barry as author. The spelling book was a fit introduction to the long series of books since produced to further the diffusion of knowledge among men. The second book entered was "The American Geography," by Jedediah Morse, entered in the District of Massachusetts on July 10, 1790, a copy of which is preserved in the Library of Congress. The earliest book entered in the State of New York was on the 30th of April, 1791, and it was entitled "The Young Gentleman's and Lady's Assistant, by Donald Fraser, Schoolmaster."Objection has occasionally, though rarely, been made to what is known as the copy-tax, by which two copies of each publication must be deposited in the National Library. This requirement rests upon two valid grounds: (1) The preservation of copies of everything protected by copyright is necessary in the interest of authors and publishers, in evidence of copyright, and in aid of identification in connection with the record of title; (2) the library of the government (which is that of the whole people) should possess and permanently preserve a complete collection of the products of the American press, so far as secured by copyright. The government makes no unreasonable exaction in saying to authors and publishers: "The nation gives you exclusive right to make and sell your publication, without limit as to quantity, for forty-two years; give the nation in return two copies, one for the use and reference of Congress and the public in the National Library, the other for preservation in the copyright archives, in perpetual evidence of your right."

In view of the valuable monopoly conceded by the public, does not the government in effect give far more than a quid pro quo for the copy-tax? Of course it would not be equitable to exact even one copy of publications not secured by copyright, in which case the government gives nothing and gets nothing; but the exaction of actually protected publications, while it is almost unfelt by publishers, is so clearly in the interest of the public intelligence, as well as of authors and publishers themselves, that no valid objection to it appears to exist. In Great Britain five copies of every book protected by copyright are required for five different libraries, which appears somewhat unreasonable.

Regarding the right of renewal of the term of copyright, it is a significant fact that it is availed of in comparatively few instances, compared with the whole body of publications. Multitudes of books are published which not only never reach a second edition, but the sale of which does not exhaust more than a small part of the copies printed of the first. In these cases the right of renewal is waived and suffered to lapse, from defect of commercial value in the work protected. In many other cases the right of renewal expires before the author or his assigns bethink them of the privilege secured to them under the law. It results that more than nine-tenths, probably, of all books published are free to any one to print, without reward or royalty to their authors, after a very few years have elapsed. On the other hand, the exclusive right in some publications of considerable commercial value is kept alive far beyond the forty-two years included in the original and the renewal term, by entry of new editions of the work, and securing copyright on the same. While this method may not protect any of the original work from republication by others, it enables the publishers of the copyright edition to advertise such unauthorized reprints as imperfect, and without the author's or editor's latest revision or additions.

The whole number of entries of copyright in the United States since we became a nation considerably exceeds a million and a half. It may be of interest to give the aggregate number of titles of publications entered for copyright in each year since the transfer of the entire records to Washington in 1870.

It will readily be seen that this great number of copyrights does not represent books alone. Many thousands of entries are daily and weekly periodicals claiming copyright protection, in which case they are required by law to make entry of every separate issue. These include a multitude of journals, literary, political, scientific, religious, pictorial, technical, commercial, agricultural, sporting, dramatic, etc., among which are a number in foreign languages. These entries also embrace all the leading monthly and quarterly magazines and reviews, with many devoted to specialties—as metaphysics, sociology, law, theology, art, finance, education, and the arts and sciences generally. Another large class of copyright entries (and the largest next to books and periodicals) is musical compositions, numbering recently some 20,000 publications yearly. Much of this property is valuable, and it is nearly all protected by entry of copyright, coming from all parts of the Union. There is also a large and constantly increasing number of works of graphic art, comprising engravings, photographs, photogravures, chromos, lithographs, etchings, prints, and drawings, for which copyright is entered. The steady accumulation of hundreds of thousands of these various pictorial illustrations will enable the government at no distant day, without a dollar of expense, to make an exhibit of the progress of the arts of design in America, which will be highly interesting and instructive. An art gallery of ample dimensions for this purpose is provided in the new National Library building.

It remains to consider briefly the principles and practice of what is known as international copyright.

Perhaps there is no argument for copyright at all in the productions of the intellect which is not good for its extension to all countries. The basis of copyright is that all useful labor is worthy of a recompense; but since all human thought when put into material or merchantable form becomes, in a certain sense, public property, the laws of all countries recognize and protect the original owners, or their assigns to whom they may convey the right, in an exclusive privilege for limited terms only. Literary property therefore is not a natural right, but a conventional one. The author's right to his manuscript is, indeed, absolute, and the law will protect him in it as fully as it will guard any other property. But when once put in type and multiplied through the printing-press, his claim to an exclusive right has to be guarded by a special statute, otherwise it is held to be abandoned (like the articles in a newspaper) to the public. This special protection is furnished in nearly all civilized countries by copyright law.

What we call "copyright" is an exclusive right to multiply copies of any publication for sale. Domestic copyright, which is all we formerly had in this country, is limited to the United States. International copyright, which has now been enacted, extends the right of American authors to foreign countries, and recognizes a parallel right of foreign authors in our own. There is nothing in the constitutional provision which restrains Congress from granting copyright to other than American citizens. Patent right, coming under the same clause of the Constitution, has been extended to foreigners. Out of over 20,000 patents annually issued, about 2,500 (or 12 per cent.) are issued to foreigners, while American patents are similarly protected abroad. If we have international patent right, why not international copyright? The grant of power is the same; both patent right and copyright are for a limited time; both rights during this time are exclusive; and both rest upon the broad ground of the promotion of science and the useful arts. If copyright is justifiable at all, if authors are to be secured a reward for their labors, they claim that all who use them should contribute equally to this result. The principle of copyright once admitted, it cannot logically be confined to State lines or national boundaries. There appears to be no middle ground between the doctrine of common property in all productions of the intellect—which leads us to communism by the shortest road—and the admission that copyright is due, while its limited term lasts, from all who use the works of an author, wherever found.

Accordingly, international copyright has become the policy of nearly all civilized nations. The term of copyright is longer in most countries than in the United States, ranging from the life of the author and seven years beyond, in England, to a life term and fifty years additional in France and Russia. Copyright is thus made a life tenure and something more in all countries except our own, where its utmost limit is forty-two years. This may perhaps be held to represent a fair average lifetime, reckoned from the age of intellectual maturity. There have not been wanting advocates for a perpetual copyright, to run to the author and his heirs and assigns forever. This was urged before the British Copyright Commission in 1878 by leading British publishers, but the term of copyright is hitherto, in all nations, limited by law.

Only brief allusion can be made to the most recent (and in some respects most important) advance step which has been taken in copyright legislation in the United States. This act of Congress is aimed at securing reciprocal protection to American and foreign authors in the respective countries which may comply with its provisions. There is here no room to sketch the hitherto vain attempt to secure to authors, here and abroad, an international protection to their writings. Suffice it to say that a union of interests was at last effected, whereby authors, publishers and manufacturers are supposed to have secured some measure of protection to their varied interests. The measure is largely experimental, and the satisfaction felt over its passage into law is tempered by doubt in various quarters as to the justice, or liberality, or actual benefit to authors of its provisions. What is to be said of a statute which was denounced by some Senators as a long step backward toward barbarism, and hailed by others as a great landmark in the progress of civilization?

The main features added to the existing law of copyright by this act, which took effect July 1, 1891, are these:

1. All limitation of the privilege of copyright to citizens and residents of the United States is repealed.

2. Foreigners applying for copyright are to pay fees of $1 for record, or $1.50 for certificate of copyright.

3. Importation of books, photographs, chromos or lithographs entered here for copyright is prohibited, except two copies of any book for use and not for sale.

4. The two copies of books, photographs, chromos or lithographs deposited with the Librarian of Congress must be printed from type set, or plates, etc., made in the United States. It follows that all foreign works protected by American copyright must be wholly manufactured in this country.

5. The copyright privilege is restricted to citizens or subjects of nations permitting the benefit of copyright to Americans on substantially the same terms as their own citizens, or of nations who have international agreements providing for reciprocity in the grant of copyright, to which the United States may at its pleasure become a party.

6. The benefit of copyright in the United States is not to take effect as to any foreigner until the actual existence of either of the conditions just recited, in the case of the nation to which he belongs, shall have been made known by a proclamation of the President of the United States.

One very material benefit has been secured through international copyright. Under it, authors are assured the control of their own text, both as to correctness and completeness. Formerly, republication was conducted on a "scramble" system, by which books were hastened through the press, to secure the earliest market, with little or no regard to a correct re-production. Moreover, it was in the power of the American publisher of an English book, or of a British publisher of an American one, to alter or omit passages in any work reprinted, at his pleasure. This license was formerly exercised, and imperfect, garbled, or truncated editions of an author's writings were issued without his consent, an outrage against which international copyright furnishes the only preventive.

Another benefit of copyright between nations has been to check the relentless flood of cheap, unpaid-for fiction, which formerly poured from the press, submerging the better literature. The Seaside and other libraries, with their miserable type, flimsy paper, and ugly form, were an injury alike to the eyesight, to the taste, and in many cases, to the morals of the community. More than ninety per cent. of these wretched "Libraries" were foreign novels. An avalanche of English and translated French novels of the "bigamy school" of fiction swept over the land, until the cut-throat competition of publishers, after exhausting the stock of unwholesome foreign literature, led to the failure of many houses, and piled high the counters of book and other stores with bankrupt stock. Having at last got rid of this unclean brood, (it is hoped forever) we now have better books, produced on good paper and type, and worth preserving, at prices not much above those of the trash formerly offered us.

At the same time, standard works of science and literature are being published in England at prices which tend steadily toward increased popular circulation. Even conservative publishers are reversing the rule of small editions at high prices, for larger editions at low prices. The old three-volume novel is nearly supplanted by the one volume, well-printed and bound book at five or six shillings. Many more reductions would follow in the higher class of books, were not the measure of reciprocal copyright thus far secured handicapped by the necessity of re-printing on this side at double cost, if a large American circulation is in view.

The writers of America, with the steady and rapid progress of the art of making books, have come more and more to appreciate the value of their preservation, in complete and unbroken series, in the library of the government, the appropriate conservator of the nation's literature. Inclusive and not exclusive, as this library is wisely made by law, so far as copyright works are concerned, it preserves with impartial care the illustrious and the obscure. In its archives all sciences and all schools of opinion stand on equal ground. In the beautiful and ample repository, now erected and dedicated to literature and art through the liberal action of Congress, the intellectual wealth of the past and the present age will be handed down to the ages that are to follow.