THE

NEW YORK REVIEW.

No. VIII.

APRIL, 1839.

ART. I.—1. Remarks on Literary Property, by PHILIP H. NICKLIN, A. M., etc., etc. Philadelphia: 1838.

2. Plea for Authors, and the rights of Literary Property. New York: 1838.

THE prodigious increase, within the last ten years, of republications in this country of the works of British authors, and their sale at an incomparably cheaper rate than the English originals-are topics of common remark among those who pay any attention to matters of literature. Few, however, even among those most interested in the subject, but must have been surprised to learn, from a report made to the senate during the last congress, "that the number of persons employed in the United States in the various branches connected with book-making and periodical publication, has been estimated at two hundred thousandand the capital employed in those branches, at from thirty to forty millions of dollars." Few persons, moreover, have probably been at any more pains than the committee who made that report, to ascertain whether the great mass of these republications, which, simply from the circumstance of their cheapness, seem to have been considered as "advantageous to the people," are precisely of the character requisite for their improvement in learning, taste, morals, or religion ;—whether they really tend to advance the standard of popular education, facilitate the diffusion of true knowledge, or add to our stock of sound principles and valuable facts-whether, in short, they assist in accomplishing * See Report of Committee on Patents, &c., June 25, 1838. NO. VIII.-VOL. IV.

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the great end proposed by that article of our national compact, by which congress is empowered "to promote the progress of science and the useful arts"—or whether, on the other hand, many of these productions may not be dear at any price.

Still fewer of the "people," we apprehend, have concerned themselves with the question, so hastily decided by this committee, as to whom the public is indebted for the benefit which it derives from such amongst these works as are really valuable; and we fear that even the small number of those who do acknowledge any obligation on that score to their authors, are unprepared fully to admit the justice and equity of their claims to remuneration. The "enterprising" republishers, although well aware of the advantages accruing to themselves from the wholesale and indiscriminate prosecution of a trade in which they obtain the staple commodity for nothing, and are therefore enabled to dispose of their wares at a lower rate but higher profit, are not, on that account, we suspect, more willing to allow an adequate compensation to the producers of the raw material. They certainly dispute the right of foreign authors to that reward to which, in common justice and natural equity, we conceive them to be entitled, and of which the federal constitution holds forth the promise.

The grievances of which English authors have complained are twofold those affecting their property, and those affecting their reputation, from the imperfect, mutilated, and interpolated republications of their works. The latter of these injuries they undertook, in the first instance, to counteract, by designating a respectable English house, of which a branch was established in this city, as the sole authorized publishers of their works in America. They then petitioned congress to amend the existing law of copyright, so as to embrace the works of foreigners residing abroad, as well as of authors who are citizens or residents of the United States. A report favorable to the prayer of their petition was made in February, 1837, by a select committee of the senate, of which Mr. Clay, of Kentucky, was the chairman; but as this took place shortly before the expiration of that congress, the bill brought in in pursuance of his report was not acted upon during the remainder of its term. Nor was the matter taken up at the first or extraordinary session of the succeeding congress. At an early period, however, of the second session of this congress, which commenced at the usual time of the first annual meetings, the bill reported at the former congress was again presented in the senate by Mr. Clay,

and on his motion referred to the standing committee on patents and the patent office, together with sundry other petitions and memorials from our own citizens, in favor of the pending application by the British authors, as well as several remonstrances against their relief. The remonstrants were a numerous class of citizens, embracing booksellers, paper makers, printers, bookbinders, type founders, and others, whose interests were supposed to be involved in the question. A report was subsequently made by this committee adverse to the claim of foreign authors, on the ground of the objections urged by the remonstrants, which were adopted and reinforced by the committee. This report was also made shortly before an adjournment of congress, and was not acted upon during the session. At the commencement of the present session, the whole subject was again referred to a new committee; but as no report has been made, at the time of our writing, it is not probable anything will now be done.

In the interval which occurred between the two reports, already made, the publications of which the titles are prefixed to this article made their appearance. The first of them, is the production of the senior partner of a well known house of law booksellers and publishers, in Philadelphia; and is in form, an introduction to a reprint of a paper on the subject of copyright, from Napier's Supplement to the Encyclopedia Britannica. Its author is decidedly against an international copyright-at present; but regards both the English and American statutes, regulating the property of authors in their works, as unjust, because they reduce to a term of years, that which, he contends, should be perpetual. He considers that the repeal of those statutes, and the restoration of the rights of authors to the ground on which they stood at common law, as not only required by justice, but by policy also since the result, he conceives, would be to "produce good and cheap books." He exhibits, moreover, some practical arguments, founded on arithmetical calculations, which "extinguish," as he has it, “the notion of monopoly, which some suppose would be conferred on authors, by perpetual copyright, simply, because their interest will induce them to sell at low prices* to the booksellers, we presume he means; and we draw this inference, from the fact which he afterwards discloses, that "what the law now takes from authors, for the sake of the public, inures for the benefit of publishers." He therefore concludes in favor of "a universal

* See "Remarks on Literary Property," p. 54.

republic of letters;" but thinks that "charity should begin at home," though "when the time comes for it to go abroad," he conceives that "the law of literary property should be uniform throughout the world, and a free trade established in books."

The second of these tracts, is from an anonymous advocate of international copyright. It is expressly intended to promote the cause of the petitioners to congress, and he agrees with the other writer, in contending for perpetual copyright, although his clients have not petitioned for it. He draws his principles, too, from the same source as Lord Camden, who in arguing against a political right, was described by an eminent author of that day, as trampling on the common law, and in his visions, "seeing a dagger before him," which he called the law of nature.* Were not the blindness and indiscretion of parties concerned in interest, or as volunteer counsel, almost proverbial, we should think it rather odd that it did not occur to either of these writers, that perpetual copyright can only be restored in this country by an amendment of the federal constitution-or, if aware of the necessity of such a measure, to effect their object, that they did not propose it. Perhaps, however, they were not so simple as to believe that there was the remotest chance of obtaining the alteration, if at all, within a period equal to that for which copyrights are secured under the existing laws. For all useful purposes, therefore, their publications might almost as well have never issued from the press; unless they were intended (which we cannot suppose) to prevent foreign authors from obtaining what may have been in their power, by engaging them in schemes not reducible to practice. We therefore dismiss these publications for the present from our notice, and merely avail ourselves of the occasion they afford, to proceed with the discussion commenced in the article upon steam navigation, in the last number, which related, as our readers may remember, to the power vested in congress by the constitution, "to promote the progress of science and the useful arts," and which we promised to pursue, in reference to this question of literary property.

It was there contended, more particularly, with respect to patented inventions, that the grant by the individual states to congress, of this power, to be executed" by securing for limited times to authors, the exclusive right to their respective writings and discoveries," was the grant of an exclusive power of legislation on the

See a letter, signed Corregio, by the author of JUNIUS. Woodfall's Junius, v. 2, p. 168.

subject. In a confederated government, like that of the United States, it seems indeed difficult to conceive, in what manner that object could possibly have been secured, except by vesting such exclusive power in a paramount authority; and the necessity of such a power to the attainment of the end, was certainly an adequate reason for vesting it in the supreme legislature of the union. The power under consideration, comes within that class of cases enumerated in the thirty-second number of the "Federalist," to which the exercise of a similar power by the state, would be repugnant and contradictory to the grant to congress. The example which the learned and eloquent author of that paper selected to illustrate his reasoning, involved a contradiction, by direct implication, from the force of the terms. It was an example, taken from the power of congress to establish a uniform system of naturalization; and it was argued by Mr. Hamilton, that such power must necessarily be exclusive, because if each state could prescribe a distinct rule, the rule of congress could not be uniform. In the present case, we hold that the power given is necessarily exclusive, not only from the terms but from the nature of the grant. The words are, that congress shall have power to secure the exclusive right of authors and inventors "for limited times." Now, if a state have a concurrent power with congress over the subject, it must be a power arising from the unceded portion of its sovereignty, and, consequently, a power to grant without limit of time. But how could congress secure to the author or inventor, for a limited time, the enjoyment of that which a state might grant to another forever.

It was said, indeed, by one of the most able judges that ever sat in our state courts,* "that if an author or inventor, instead of resorting to the act of congress, should apply to the state legislature for an exclusive right to his production, there is nothing to prevent the state from granting such exclusive privilege, provided it be confined, in its exercise, to the particular jurisdiction." If this be so, then may the state legislatures pass copyright and patent laws, embracing foreigners within their provisions, although to render such laws effectual for any beneficial end, every state must adopt them. But none such have been passed since the ratification of the federal constitution, and this omission, of itself, affords a practical construction of the article in question, which confirms our position; and, with all due submission to the constitutional jurist, whose opinion we

*

By KENT, Ch. J., in Livingston vs. Van Ingen, 13 Johns. Rep.