Macaulay on copyright law

                            Eric Flint 

                       September 1, 2001

   These are two speeches given by Thomas Macaulay in
   Parliament in 1841, when the issue of copyright was being
   hammered out. They are, no other word for it, brilliant --
   and cover everything fundamental which is involved in the
   issue. (For those not familiar with him, Macaulay would
   eventually become one of the foremost British historians
   of the 19th century. His History of England remains in
   print to this day, as do many of his other writings.)

   I strongly urge people to read them. Yes, they're long --
   almost 10,000 words -- and, yes, Macaulay's oratorical
   style is that of an earlier era. (Although, I've got to say,
   I'm partial to it. Macaulay orated before the era of "sound
   bytes." Thank God.)

   But contained herein is all wisdom on the subject, an
   immense learning -- and plenty of wit. So relax, pour
   yourself some coffee (or whatever beverage of your
   choice) (or whatever, preferably not hallucinogenic), and
   take the time to read it. The "oh-so-modern" subject of
   "electronic piracy" contains no problems which Macaulay
   didn't already address, at least in essence, more than a
   century and a half ago.

   I should note that Macaulay's position, slightly modified,
   did become the basis of copyright law in the English
   speaking world. And remained so (at least in the US) for a
   century and a half -- until, on a day of infamy just a few
   years ago, the Walt Disney Corporation and their stooges
   in Congress got the law changed to the modern law, which
   extends copyright for a truly absurd period of time. Which
   -- those who forget history are doomed to repeat it -- is a
   return to the position advocated by Macaulay's (now long
   forgotten) opponent in the debate.

   Eric Flint

   A SPEECH DELIVERED IN THE HOUSE OF
   COMMONS ON THE 5TH OF FEBRUARY
   1841

                    by Thomas Babington Macaulay

         On the twenty-ninth of January 1841, Mr Serjeant
         Talfourd obtained leave to bring in a bill to amend the law
         of copyright. The object of this bill was to extend the
         term of copyright in a book to sixty years, reckoned from
         the death of the writer.

         On the fifth of February Mr Serjeant Talfourd moved that
         the bill should be read a second time. In reply to him the
         following Speech was made. The bill was rejected by 45
         votes to 38.

   Though, Sir, it is in some sense agreeable to approach a subject with
   which political animosities have nothing to do, I offer myself to your
   notice with some reluctance. It is painful to me to take a course which
   may possibly be misunderstood or misrepresented as unfriendly to the
   interests of literature and literary men. It is painful to me, I will add, to
   oppose my honourable and learned friend on a question which he has
   taken up from the purest motives, and which he regards with a parental
   interest. These feelings have hitherto kept me silent when the law of
   copyright has been under discussion. But as I am, on full consideration,
   satisfied that the measure before us will, if adopted, inflict grievous
   injury on the public, without conferring any compensating advantage on
   men of letters, I think it my duty to avow that opinion and to defend it.

   The first thing to be done, Sir, is to settle on what principles the
   question is to be argued. Are we free to legislate for the public good, or
   are we not? Is this a question of expediency, or is it a question of right?
   Many of those who have written and petitioned against the existing
   state of things treat the question as one of right. The law of nature,
   according to them, gives to every man a sacred and indefeasible
   property in his own ideas, in the fruits of his own reason and
   imagination. The legislature has indeed the power to take away this
   property, just as it has the power to pass an act of attainder for cutting
   off an innocent man's head without a trial. But, as such an act of
   attainder would be legal murder, so would an act invading the right of an
   author to his copy be, according to these gentlemen, legal robbery.

   Now, Sir, if this be so, let justice be done, cost what it may. I am not
   prepared, like my honourable and learned friend, to agree to a
   compromise between right and expediency, and to commit an injustice
   for the public convenience. But I must say, that his theory soars far
   beyond the reach of my faculties. It is not necessary to go, on the
   present occasion, into a metaphysical inquiry about the origin of the
   right of property; and certainly nothing but the strongest necessity
   would lead me to discuss a subject so likely to be distasteful to the
   House. I agree, I own, with Paley in thinking that property is the
   creature of the law, and that the law which creates property can be
   defended only on this ground, that it is a law beneficial to mankind. But
   it is unnecessary to debate that point. For, even if I believed in a
   natural right of property, independent of utility and anterior to
   legislation, I should still deny that this right could survive the original
   proprietor. Few, I apprehend, even of those who have studied in the
   most mystical and sentimental schools of moral philosophy, will be
   disposed to maintain that there is a natural law of succession older and
   of higher authority than any human code. If there be, it is quite certain
   that we have abuses to reform much more serious than any connected
   with the question of copyright. For this natural law can be only one; and
   the modes of succession in the Queen's dominions are twenty. To go no
   further than England, land generally descends to the eldest son. In Kent
   the sons share and share alike. In many districts the youngest takes the
   whole. Formerly a portion of a man's personal property was secured to
   his family; and it was only of the residue that he could dispose by will.
   Now he can dispose of the whole by will: but you limited his power, a
   few years ago, by enacting that the will should not be valid unless there
   were two witnesses. If a man dies intestate, his personal property
   generally goes according to the statute of distributions; but there are
   local customs which modify that statute. Now which of all these
   systems is conformed to the eternal standard of right? Is it
   primogeniture, or gavelkind, or borough English? Are wills jure divino? Are
   the two witnesses jure divino? Might not the pars rationabilis of our old
   law have a fair claim to be regarded as of celestial institution? Was the
   statute of distributions enacted in Heaven long before it was adopted by
   Parliament? Or is it to Custom of York, or to Custom of London, that this
   pre- eminence belongs? Surely, Sir, even those who hold that there is a
   natural right of property must admit that rules prescribing the manner in
   which the effects of deceased persons shall be distributed are purely
   arbitrary, and originate altogether in the will of the legislature. If so, Sir,
   there is no controversy between my honourable and learned friend and
   myself as to the principles on which this question is to be argued. For
   the existing law gives an author copyright during his natural life; nor do I
   propose to invade that privilege, which I should, on the contrary, be
   prepared to defend strenuously against any assailant. The only point in
   issue between us is, how long after an author's death the State shall
   recognise a copyright in his representatives and assigns; and it can, I
   think, hardly be disputed by any rational man that this is a point which
   the legislature is free to determine in the way which may appear to be
   most conducive to the general good.

   We may now, therefore, I think, descend from these high regions, where
   we are in danger of being lost in the clouds, to firm ground and clear
   light. Let us look at this question like legislators, and after fairly
   balancing conveniences and inconveniences, pronounce between the
   existing law of copyright, and the law now proposed to us. The question
   of copyright, Sir, like most questions of civil prudence, is neither black
   nor white, but grey. The system of copyright has great advantages and
   great disadvantages; and it is our business to ascertain what these are,
   and then to make an arrangement under which the advantages may be
   as far as possible secured, and the disadvantages as far as possible
   excluded. The charge which I bring against my honourable and learned
   friend's bill is this, that it leaves the advantages nearly what they are at
   present, and increases the disadvantages at least fourfold.

   The advantages arising from a system of copyright are obvious. It is
   desirable that we should have a supply of good books; we cannot have
   such a supply unless men of letters are liberally remunerated; and the
   least objectionable way of remunerating them is by means of copyright.
   You cannot depend for literary instruction and amusement on the leisure
   of men occupied in the pursuits of active life. Such men may
   occasionally produce compositions of great merit. But you must not look
   to such men for works which require deep meditation and long research.
   Works of that kind you can expect only from persons who make
   literature the business of their lives. Of these persons few will be found
   among the rich and the noble. The rich and the noble are not impelled to
   intellectual exertion by necessity. They may be impelled to intellectual
   exertion by the desire of distinguishing themselves, or by the desire of
   benefiting the community. But it is generally within these walls that they
   seek to signalise themselves and to serve their fellow-creatures. Both
   their ambition and their public spirit, in a country like this, naturally take
   a political turn. It is then on men whose profession is literature, and
   whose private means are not ample, that you must rely for a supply of
   valuable books. Such men must be remunerated for their literary labour.
   And there are only two ways in which they can be remunerated. One of
   those ways is patronage; the other is copyright.

   There have been times in which men of letters looked, not to the public,
   but to the government, or to a few great men, for the reward of their
   exertions. It was thus in the time of Maecenas and Pollio at Rome, of
   the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax
   and Lord Oxford in this country. Now, Sir, I well know that there are
   cases in which it is fit and graceful, nay, in which it is a sacred duty to
   reward the merits or to relieve the distresses of men of genius by the
   exercise of this species of liberality. But these cases are exceptions. I
   can conceive no system more fatal to the integrity and independence of
   literary men than one under which they should be taught to look for
   their daily bread to the favour of ministers and nobles. I can conceive no
   system more certain to turn those minds which are formed by nature to
   be the blessings and ornaments of our species into public scandals and
   pests.

   We have, then, only one resource left. We must betake ourselves to
   copyright, be the inconveniences of copyright what they may. Those
   inconveniences, in truth, are neither few nor small. Copyright is
   monopoly, and produces all the effects which the general voice of
   mankind attributes to monopoly. My honourable and learned friend talks
   very contemptuously of those who are led away by the theory that
   monopoly makes things dear. That monopoly makes things dear is
   certainly a theory, as all the great truths which have been established
   by the experience of all ages and nations, and which are taken for
   granted in all reasonings, may be said to be theories. It is a theory in
   the same sense in which it is a theory that day and night follow each
   other, that lead is heavier than water, that bread nourishes, that
   arsenic poisons, that alcohol intoxicates. If, as my honourable and
   learned friend seems to think, the whole world is in the wrong on this
   point, if the real effect of monopoly is to make articles good and cheap,
   why does he stop short in his career of change? Why does he limit the
   operation of so salutary a principle to sixty years? Why does he consent
   to anything short of a perpetuity? He told us that in consenting to
   anything short of a perpetuity he was making a compromise between
   extreme right and expediency. But if his opinion about monopoly be
   correct, extreme right and expediency would coincide. Or rather, why
   should we not restore the monopoly of the East India trade to the East
   India Company? Why should we not revive all those old monopolies
   which, in Elizabeth's reign, galled our fathers so severely that, maddened
   by intolerable wrong, they opposed to their sovereign a resistance
   before which her haughty spirit quailed for the first and for the last
   time? Was it the cheapness and excellence of commodities that then so
   violently stirred the indignation of the English people? I believe, Sir, that
   I may with safety take it for granted that the effect of monopoly
   generally is to make articles scarce, to make them dear, and to make
   them bad. And I may with equal safety challenge my honourable friend
   to find out any distinction between copyright and other privileges of the
   same kind; any reason why a monopoly of books should produce an
   effect directly the reverse of that which was produced by the East India
   Company's monopoly of tea, or by Lord Essex's monopoly of sweet
   wines. Thus, then, stands the case. It is good that authors should be
   remunerated; and the least exceptionable way of remunerating them is
   by a monopoly. Yet monopoly is an evil. For the sake of the good we
   must submit to the evil; but the evil ought not to last a day longer than
   is necessary for the purpose of securing the good.

   Now, I will not affirm that the existing law is perfect, that it exactly hits
   the point at which the monopoly ought to cease; but this I confidently
   say, that the existing law is very much nearer that point than the law
   proposed by my honourable and learned friend. For consider this; the evil
   effects of the monopoly are proportioned to the length of its duration.
   But the good effects for the sake of which we bear with the evil effects
   are by no means proportioned to the length of its duration. A monopoly
   of sixty years produces twice as much evil as a monopoly of thirty
   years, and thrice as much evil as a monopoly of twenty years. But it is
   by no means the fact that a posthumous monopoly of sixty years gives
   to an author thrice as much pleasure and thrice as strong a motive as a
   posthumous monopoly of twenty years. On the contrary, the difference
   is so small as to be hardly perceptible. We all know how faintly we are
   affected by the prospect of very distant advantages, even when they
   are advantages which we may reasonably hope that we shall ourselves
   enjoy. But an advantage that is to be enjoyed more than half a century
   after we are dead, by somebody, we know not by whom, perhaps by
   somebody unborn, by somebody utterly unconnected with us, is really
   no motive at all to action. It is very probable that in the course of some
   generations land in the unexplored and unmapped heart of the
   Australasian continent will be very valuable. But there is none of us who
   would lay down five pounds for a whole province in the heart of the
   Australasian continent. We know, that neither we, nor anybody for
   whom we care, will ever receive a farthing of rent from such a province.
   And a man is very little moved by the thought that in the year 2000 or
   2100, somebody who claims through him will employ more shepherds
   than Prince Esterhazy, and will have the finest house and gallery of
   pictures at Victoria or Sydney. Now, this is the sort of boon which my
   honourable and learned friend holds out to authors. Considered as a
   boon to them, it is a mere nullity, but considered as an impost on the
   public, it is no nullity, but a very serious and pernicious reality. I will
   take an example. Dr Johnson died fifty-six years ago. If the law were
   what my honourable and learned friend wishes to make it, somebody
   would now have the monopoly of Dr Johnson's works. Who that
   somebody would be it is impossible to say; but we may venture to
   guess. I guess, then, that it would have been some bookseller, who was
   the assign of another bookseller, who was the grandson of a third
   bookseller, who had bought the copyright from Black Frank, the doctor's
   servant and residuary legatee, in 1785 or 1786. Now, would the
   knowledge that this copyright would exist in 1841 have been a source of
   gratification to Johnson? Would it have stimulated his exertions? Would it
   have once drawn him out of his bed before noon? Would it have once
   cheered him under a fit of the spleen? Would it have induced him to give
   us one more allegory, one more life of a poet, one more imitation of
   Juvenal? I firmly believe not. I firmly believe that a hundred years ago,
   when he was writing our debates for the Gentleman's Magazine, he
   would very much rather have had twopence to buy a plate of shin of
   beef at a cook's shop underground. Considered as a reward to him, the
   difference between a twenty years' and sixty years' term of posthumous
   copyright would have been nothing or next to nothing. But is the
   difference nothing to us? I can buy Rasselas for sixpence; I might have
   had to give five shillings for it. I can buy the Dictionary, the entire
   genuine Dictionary, for two guineas, perhaps for less; I might have had
   to give five or six guineas for it. Do I grudge this to a man like Dr
   Johnson? Not at all. Show me that the prospect of this boon roused him
   to any vigorous effort, or sustained his spirits under depressing
   circumstances, and I am quite willing to pay the price of such an object,
   heavy as that price is. But what I do complain of is that my
   circumstances are to be worse, and Johnson's none the better; that I
   am to give five pounds for what to him was not worth a farthing.

   The principle of copyright is this. It is a tax on readers for the purpose
   of giving a bounty to writers. The tax is an exceedingly bad one; it is a
   tax on one of the most innocent and most salutary of human pleasures;
   and never let us forget, that a tax on innocent pleasures is a premium
   on vicious pleasures. I admit, however, the necessity of giving a bounty
   to genius and learning. In order to give such a bounty, I willingly submit
   even to this severe and burdensome tax. Nay, I am ready to increase
   the tax, if it can be shown that by so doing I should proportionally
   increase the bounty. My complaint is, that my honourable and learned
   friend doubles, triples, quadruples, the tax, and makes scarcely any
   perceptible addition to the bounty. Why, Sir, what is the additional
   amount of taxation which would have been levied on the public for Dr
   Johnson's works alone, if my honourable and learned friend's bill had
   been the law of the land? I have not data sufficient to form an opinion.
   But I am confident that the taxation on his Dictionary alone would have
   amounted to many thousands of pounds. In reckoning the whole
   additional sum which the holders of his copyrights would have taken out
   of the pockets of the public during the last half century at twenty
   thousand pounds, I feel satisfied that I very greatly underrate it. Now, I
   again say that I think it but fair that we should pay twenty thousand
   pounds in consideration of twenty thousand pounds' worth of pleasure
   and encouragement received by Dr Johnson. But I think it very hard that
   we should pay twenty thousand pounds for what he would not have
   valued at five shillings.

   My honourable and learned friend dwells on the claims of the posterity of
   great writers. Undoubtedly, Sir, it would be very pleasing to see a
   descendant of Shakespeare living in opulence on the fruits of his great
   ancestor's genius. A house maintained in splendour by such a patrimony
   would be a more interesting and striking object than Blenheim is to us, or
   than Strathfieldsaye will be to our children. But, unhappily, it is scarcely
   possible that, under any system, such a thing can come to pass. My
   honourable and learned friend does not propose that copyright shall
   descend to the eldest son, or shall be bound up by irrecoverable entail.
   It is to be merely personal property. It is therefore highly improbable
   that it will descend during sixty years or half that term from parent to
   child. The chance is that more people than one will have an interest in
   it. They will in all probability sell it and divide the proceeds. The price
   which a bookseller will give for it will bear no proportion to the sum
   which he will afterwards draw from the public, if his speculation proves
   successful. He will give little, if anything, more for a term of sixty years
   than for a term of thirty or five and twenty. The present value of a
   distant advantage is always small; but when there is great room to
   doubt whether a distant advantage will be any advantage at all, the
   present value sink to almost nothing. Such is the inconstancy of the
   public taste that no sensible man will venture to pronounce, with
   confidence, what the sale of any book published in our days will be in
   the years between 1890 and 1900. The whole fashion of thinking and
   writing has often undergone a change in a much shorter period than that
   to which my honourable and learned friend would extend posthumous
   copyright. What would have been considered the best literary property
   in the earlier part of Charles the Second's reign? I imagine Cowley's
   Poems. Overleap sixty years, and you are in the generation of which
   Pope asked, "Who now reads Cowley?" What works were ever expected
   with more impatience by the public than those of Lord Bolingbroke,
   which appeared, I think, in 1754? In 1814, no bookseller would have
   thanked you for the copyright of them all, if you had offered it to him for
   nothing. What would Paternoster Row give now for the copyright of
   Hayley's Triumphs of Temper, so much admired within the memory of
   many people still living? I say, therefore, that, from the very nature of
   literary property, it will almost always pass away from an author's family;
   and I say, that the price given for it to the family will bear a very small
   proportion to the tax which the purchaser, if his speculation turns out
   well, will in the course of a long series of years levy on the public.

   If, Sir, I wished to find a strong and perfect illustration of the effects
   which I anticipate from long copyright, I should select,—my honourable
   and learned friend will be surprised,—I should select the case of Milton's
   granddaughter. As often as this bill has been under discussion, the fate
   of Milton's granddaughter has been brought forward by the advocates of
   monopoly. My honourable and learned friend has repeatedly told the
   story with great eloquence and effect. He has dilated on the sufferings,
   on the abject poverty, of this ill-fated woman, the last of an illustrious
   race. He tells us that, in the extremity of her distress, Garrick gave her
   a benefit, that Johnson wrote a prologue, and that the public
   contributed some hundreds of pounds. Was it fit, he asks, that she
   should receive, in this eleemosynary form, a small portion of what was in
   truth a debt? Why, he asks, instead of obtaining a pittance from charity,
   did she not live in comfort and luxury on the proceeds of the sale of her
   ancestor's works? But, Sir, will my honourable and learned friend tell me
   that this event, which he has so often and so pathetically described,
   was caused by the shortness of the term of copyright? Why, at that
   time, the duration of copyright was longer than even he, at present,
   proposes to make it. The monopoly lasted, not sixty years, but for ever.
   At the time at which Milton's granddaughter asked charity, Milton's
   works were the exclusive property of a bookseller. Within a few months
   of the day on which the benefit was given at Garrick's theatre, the
   holder of the copyright of Paradise Lost,—I think it was Tonson,—applied
   to the Court of Chancery for an injunction against a bookseller who had
   published a cheap edition of the great epic poem, and obtained the
   injunction. The representation of Comus was, if I remember rightly, in
   1750; the injunction in 1752. Here, then, is a perfect illustration of the
   effect of long copyright. Milton's works are the property of a single
   publisher. Everybody who wants them must buy them at Tonson's shop,
   and at Tonson's price. Whoever attempts to undersell Tonson is
   harassed with legal proceedings. Thousands who would gladly possess a
   copy of Paradise Lost, must forego that great enjoyment. And what, in
   the meantime, is the situation of the only person for whom we can
   suppose that the author, protected at such a cost to the public, was at
   all interested? She is reduced to utter destitution. Milton's works are
   under a monopoly. Milton's granddaughter is starving. The reader is
   pillaged; but the writer's family is not enriched. Society is taxed doubly.
   It has to give an exorbitant price for the poems; and it has at the same
   time to give alms to the only surviving descendant of the poet.

   But this is not all. I think it right, Sir, to call the attention of the House
   to an evil, which is perhaps more to be apprehended when an author's
   copyright remains in the hands of his family, than when it is transferred
   to booksellers. I seriously fear that, if such a measure as this should be
   adopted, many valuable works will be either totally suppressed or
   grievously mutilated. I can prove that this danger is not chimerical; and
   I am quite certain that, if the danger be real, the safeguards which my
   honourable and learned friend has devised are altogether nugatory. That
   the danger is not chimerical may easily be shown. Most of us, I am sure,
   have known persons who, very erroneously as I think, but from the best
   motives, would not choose to reprint Fielding's novels, or Gibbon's
   History of the Decline and Fall of the Roman Empire. Some gentlemen
   may perhaps be of opinion that it would be as well if Tom Jones and
   Gibbon's History were never reprinted. I will not, then, dwell on these or
   similar cases. I will take cases respecting which it is not likely that there
   will be any difference of opinion here; cases, too, in which the danger of
   which I now speak is not matter of supposition, but matter of fact. Take
   Richardson's novels. Whatever I may, on the present occasion, think of
   my honourable and learned friend's judgment as a legislator, I must
   always respect his judgment as a critic. He will, I am sure, say that
   Richardson's novels are among the most valuable, among the most
   original works in our language. No writings have done more to raise the
   fame of English genius in foreign countries. No writings are more deeply
   pathetic. No writings, those of Shakspeare excepted, show more
   profound knowledge of the human heart. As to their moral tendency, I
   can cite the most respectable testimony. Dr Johnson describes
   Richardson as one who had taught the passions to move at the
   command of virtue. My dear and honoured friend, Mr Wilberforce, in his
   celebrated religious treatise, when speaking of the unchristian tendency
   of the fashionable novels of the eighteenth century, distinctly excepts
   Richardson from the censuquestions which drive even wise men
   beyond the bounds of wisdom. There are books of a very different kind,
   books which are the rallying points of great political and religious parties.
   What is likely to happen if the copyright of one of the these books
   should by descent or transfer come into the possession of some hostile
   zealot? I will take a single instance. It is only fifty years since John
   Wesley died; and all his works, if the law had been what my honourable
   and learned friend wishes to make it, would now have been the property
   of some person or other. The sect founded by Wesley is the most
   numerous, the wealthiest, the most powerful, the most zealous of sects.
   In every parliamentary election it is a matter of the greatest importance
   to obtain the support of the Wesleyan Methodists. Their numerical
   strength is reckoned by hundreds of thousands. They hold the memory
   of their founder in the greatest reverence; and not without reason, for
   he was unquestionably a great and a good man. To his authority they
   constantly appeal. His works are in their eyes of the highest value. His
   doctrinal writings they regard as containing the best system of theology
   ever deduced from Scripture. His journals, interesting even to the
   common reader, are peculiarly interesting to the Methodist: for they
   contain the whole history of that singular polity which, weak and
   despised in its beginning, is now, after the lapse of a century, so strong,
   so flourishing, and so formidable. The hymns to which he gave his
   imprimatur are a most important part of the public worship of his
   followers. Now, suppose that the copyright of these works should belong
   to some person who holds the memory of Wesley and the doctrines and
   discipline of the Methodists in abhorrence. There are many such
   persons. The Ecclesiastical Courts are at this very time sitting on the
   case of a clergyman of the Established Church who refused Christian
   burial to a child baptized by a Methodist preacher. I took up the other
   day a work which is considered as among the most respectable organs
   of a large and growing party in the Church of England, and there I saw
   John Wesley designated as a forsworn priest. Suppose that the works of
   Wesley were suppressed. Why, Sir, such a grievance would be enough
   to shake the foundations of Government. Let gentlemen who are
   attached to the Church reflect for a moment what their feelings would
   be if the Book of Common Prayer were not to be reprinted for thirty or
   forty years, if the price of a Book of Common Prayer were run up to five
   or ten guineas. And then let them determine whether they will pass a
   law under which it is possible, under which it is probable, that so
   intolerable a wrong may be done to some sect consisting perhaps of half
   a million of persons.

   I am so sensible, Sir, of the kindness with which the House has listened
   to me, that I will not detain you longer. I will only say this, that if the
   measure before us should pass, and should produce one-tenth part of
   the evil which it is calculated to produce, and which I fully expect it to
   produce, there will soon be a remedy, though of a very objectionable
   kind. Just as the absurd acts which prohibited the sale of game were
   virtually repealed by the poacher, just as many absurd revenue acts
   have been virtually repealed by the smuggler, so will this law be virtually
   repealed by piratical booksellers. At present the holder of copyright has
   the public feeling on his side. Those who invade copyright are regarded
   as knaves who take the bread out of the mouths of deserving men.
   Everybody is well pleased to see them restrained by the law, and
   compelled to refund their ill-gotten gains. No tradesman of good repute
   will have anything to do with such disgraceful transactions. Pass this
   law: and that feeling is at an end. Men very different from the present
   race of piratical booksellers will soon infringe this intolerable monopoly.
   Great masses of capital will be constantly employed in the violation of
   the law. Every art will be employed to evade legal pursuit; and the
   whole nation will be in the plot. On which side indeed should the public
   sympathy be when the question is whether some book as popular as
   Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or
   whether it shall be confined to the libraries of the rich for the advantage
   of the great-grandson of a bookseller who, a hundred years before,
   drove a hard bargain for the copyright with the author when in great
   distress? Remember too that, when once it ceases to be considered as
   wrong and discreditable to invade literary property, no person can say
   where the invasion will stop. The public seldom makes nice distinctions.
   The wholesome copyright which now exists will share in the disgrace and
   danger of the new copyright which you are about to create. And you will
   find that, in attempting to impose unreasonable restraints on the
   reprinting of the works of the dead, you have, to a great extent,
   annulled those restraints which now prevent men from pillaging and
   defrauding the living. If I saw, Sir, any probability that this bill could be
   so amended in the Committee that my objections might be removed, I
   would not divide the House in this stage. But I am so fully convinced
   that no alteration which would not seem insupportable to my honourable
   and learned friend, could render his measure supportable to me, that I
   must move, though with regret, that this bill be read a second time this
   day six months.



   A SPEECH DELIVERED IN A COMMITTEE
   OF THE HOUSE OF COMMONS ON THE 6TH
   OF APRIL 1842.

                    by Thomas Babington Macaulay

         On the third of March 1842, Lord Mahon obtained
         permission to bring in a bill to amend the Law of
         Copyright. This bill extended the term of Copyright in a
         book to twenty-five years, reckoned from the death of
         the author.

         On the sixth of April the House went into Committee on
         the bill, and Mr Greene took the Chair. Several divisions
         took place, of which the result was that the plan
         suggested in the following Speech was, with some
         modifications, adopted.

   Mr Greene,—I have been amused and gratified by the remarks which my
   noble friend (Lord Mahon.) has made on the arguments by which I
   prevailed on the last House of Commons to reject the bill introduced by
   a very able and accomplished man, Mr Serjeant Talfourd. My noble friend
   has done me a high and rare honour. For this is, I believe, the first
   occasion on which a speech made in one Parliament has been answered
   in another. I should not find it difficult to vindicate the soundness of the
   reasons which I formerly urged, to set them in a clearer light, and to
   fortify them by additional facts. But it seems to me that we had better
   discuss the bill which is now on our table than the bill which was there
   fourteen months ago. Glad I am to find that there is a very wide
   difference between the two bills, and that my noble friend, though he
   has tried to refute my arguments, has acted as if he had been
   convinced by them. I objected to the term of sixty years as far too
   long. My noble friend has cut that term down to twenty-five years. I
   warned the House that, under the provisions of Mr Serjeant Talfourd's
   bill, valuable works might not improbably be suppressed by the
   representatives of authors. My noble friend has prepared a clause which,
   as he thinks, will guard against that danger. I will not, therefore, waste
   the time of the Committee by debating points which he has conceded,
   but will proceed at once to the proper business of this evening.

   Sir, I have no objection to the principle of my noble friend's bill. Indeed,
   I had no objection to the principle of the bill of last year. I have long
   thought that the term of copyright ought to be extended. When Mr
   Serjeant Talfourd moved for leave to bring in his bill, I did not oppose
   the motion. Indeed I meant to vote for the second reading, and to
   reserve what I had to say for the Committee. But the learned Serjeant
   left me no choice. He, in strong language, begged that nobody who was
   disposed to reduce the term of sixty years would divide with him. "Do
   not," he said, "give me your support, if all that you mean to grant to
   men of letters is a miserable addition of fourteen or fifteen years to the
   present term. I do not wish for such support. I despise it." Not wishing
   to obtrude on the learned Serjeant a support which he despised, I had
   no course left but to take the sense of the House on the second
   reading. The circumstances are now different. My noble friend's bill is
   not at present a good bill; but it may be improved into a very good bill;
   nor will he, I am persuaded, withdraw it if it should be so improved. He
   and I have the same object in view; but we differ as to the best mode
   of attaining that object. We are equally desirous to extend the
   protection now enjoyed by writers. In what way it may be extended
   with most benefit to them and with least inconvenience to the public, is
   the question.

   The present state of the law is this. The author of a work has a certain
   copyright in that work for a term of twenty-eight years. If he should live
   more than twenty-eight years after the publication of the work, he
   retains the copyright to the end of his life.

   My noble friend does not propose to make any addition to the term of
   twenty-eight years. But he proposes that the copyright shall last
   twenty-five years after the author's death. Thus my noble friend makes
   no addition to that term which is certain, but makes a very large
   addition to that term which is uncertain.

   My plan is different. I would made no addition to the uncertain term; but
   I would make a large addition to the certain term. I propose to add
   fourteen years to the twenty-eight years which the law now allows to
   an author. His copyright will, in this way, last till his death, or till the
   expiration of forty-two years, whichever shall first happen. And I think
   that I shall be able to prove to the satisfaction of the Committee that
   my plan will be more beneficial to literature and to literary men than the
   plan of my noble friend.

   It must surely, Sir, be admitted that the protection which we give to
   books ought to be distributed as evenly as possible, that every book
   should have a fair share of that protection, and no book more than a fair
   share. It would evidently be absurd to put tickets into a wheel, with
   different numbers marked upon them, and to make writers draw, one a
   term of twenty-eight years, another a term of fifty, another a term of
   ninety. And yet this sort of lottery is what my noble friend proposes to
   establish. I know that we cannot altogether exclude chance. You have
   two terms of copyright; one certain, the other uncertain; and we
   cannot, I admit, get rid of the uncertain term. It is proper, no doubt,
   that an author's copyright should last during his life. But, Sir, though we
   cannot altogether exclude chance, we can very much diminish the share
   which chance must have in distributing the recompense which we wish
   to give to genius and learning. By every addition which we make to the
   certain term we diminish the influence of chance; by every addition
   which we make to the uncertain term we increase the influence of
   chance. I shall make myself best understood by putting cases. Take two
   eminent female writers, who died within our own memory, Madame
   D'Arblay and Miss Austen. As the law now stands, Miss Austen's
   charming novels would have only from twenty-eight to thirty-three
   years of copyright. For that extraordinary woman died young: she died
   before her genius was fully appreciated by the world. Madame D'Arblay
   outlived the whole generation to which she belonged. The copyright of
   her celebrated novel, Evelina, lasted, under the present law, sixty-two
   years. Surely this inequality is sufficiently great—sixty-two years of
   copyright for Evelina, only twenty-eight for Persuasion. But to my noble
   friend this inequality seems not great enough. He proposes to add
   twenty- five years to Madame D'Arblay's term, and not a single day to
   Miss Austen's term. He would give to Persuasion a copyright of only
   twenty-eight years, as at present, and to Evelina a copyright more than
   three times as long, a copyright of eighty- seven years. Now, is this
   reasonable? See, on the other hand, the operation of my plan. I make no
   addition at all to Madame D'Arblay's term of sixty-two years, which is, in
   my opinion, quite long enough; but I extend Miss Austen's term to
   forty-two years, which is, in my opinion, not too much. You see, Sir,
   that at present chance has too much sway in this matter: that at
   present the protection which the State gives to letters is very unequally
   given. You see that if my noble friend's plan be adopted, more will be
   left to chance than under the present system, and you will have such
   inequalities as are unknown under the present system. You see also
   that, under the system which I recommend, we shall have, not perfect
   certainty, not perfect equality, but much less uncertainty and inequality
   than at present.

   But this is not all. My noble friend's plan is not merely to institute a
   lottery in which some writers will draw prizes and some will draw blanks.
   It is much worse than this. His lottery is so contrived that, in the vast
   majority of cases, the blanks will fall to the best books, and the prizes
   to books of inferior merit.

   Take Shakspeare. My noble friend gives a longer protection than I should
   give to Love's Labour's Lost, and Pericles, Prince of Tyre; but he gives a
   shorter protection than I should give to Othello and Macbeth.

   Take Milton. Milton died in 1674. The copyrights of Milton's great works
   would, according to my noble friend's plan, expire in 1699. Comus
   appeared in 1634, the Paradise Lost in 1668. To Comus, then, my noble
   friend would give sixty-five years of copyright, and to the Paradise Lost
   only thirty-one years. Is that reasonable? Comus is a noble poem: but
   who would rank it with the Paradise Lost? My plan would give forty-two
   years both to the Paradise Lost and to Comus.

   Let us pass on from Milton to Dryden. My noble friend would give more
   than sixty years of copyright to Dryden's worst works; to the
   encomiastic verses on Oliver Cromwell, to the Wild Gallant, to the Rival
   Ladies, to other wretched pieces as bad as anything written by Flecknoe
   or Settle: but for Theodore and Honoria, for Tancred and Sigismunda, for
   Cimon and Iphigenia, for Palamon and Arcite, for Alexander's Feast, my
   noble friend thinks a copyright of twenty-eight years sufficient. Of all
   Pope's works, that to which my noble friend would give the largest
   measure of protection is the volume of Pastorals, remarkable only as the
   production of a boy. Johnson's first work was a Translation of a Book of
   Travels in Abyssinia, published in 1735. It was so poorly executed that in
   his later years he did not like to hear it mentioned. Boswell once picked
   up a copy of it, and told his friend that he had done so. "Do not talk
   about it," said Johnson: "it is a thing to be forgotten." To this
   performance my noble friend would give protection during the enormous
   term of seventy-five years. To the Lives of the Poets he would give
   protection during about thirty years. Well; take Henry Fielding; it
   matters not whom I take, but take Fielding. His early works are read only
   by the curious, and would not be read even by the curious, but for the
   fame which he acquired in the latter part of his life by works of a very
   different kind. What is the value of the Temple Beau, of the Intriguing
   Chambermaid, of half a dozen other plays of which few gentlemen have
   even heard the names? Yet to these worthless pieces my noble friend
   would give a term of copyright longer by more than twenty years than
   that which he would give to Tom Jones and Amelia.

   Go on to Burke. His little tract, entitled the Vindication of Natural
   Society is certainly not without merit; but it would not be remembered in
   our days if it did not bear the name of Burke. To this tract my noble
   friend would give a copyright of near seventy years. But to the great
   work on the French Revolution, to the Appeal from the New to the Old
   Whigs, to the letters on the Regicide Peace, he would give a copyright
   of thirty years or little more.

   And, Sir observe that I am not selecting here and there extraordinary
   instances in order to make up the semblance of a case. I am taking the
   greatest names of our literature in chronological order. Go to other
   nations; go to remote ages; you will still find the general rule the same.
   There was no copyright at Athens or Rome; but the history of the Greek
   and Latin literature illustrates my argument quite as well as if copyright
   had existed in ancient times. Of all the plays of Sophocles, the one to
   which the plan of my noble friend would have given the most scanty
   recompense would have been that wonderful masterpiece, the Oedipus
   at Colonos. Who would class together the Speech of Demosthenes
   against his Guardians, and the Speech for the Crown? My noble friend,
   indeed, would not class them together. For to the Speech against the
   Guardians he would give a copyright of near seventy years, and to the
   incomparable Speech for the Crown a copyright of less than half that
   length. Go to Rome. My noble friend would give more than twice as long
   a term to Cicero's juvenile declamation in defence of Roscius Amerinus
   as to the Second Philippic. Go to France. My noble friend would give a
   far longer term to Racine's Freres Ennemis than to Athalie, and to
   Moliere's Etourdi than to Tartuffe. Go to Spain. My noble friend would
   give a longer term to forgotten works of Cervantes, works which nobody
   now reads, than to Don Quixote. Go to Germany. According to my noble
   friend's plan, of all the works of Schiller the Robbers would be the most
   favoured: of all the works of Goethe, the Sorrows of Werter would be
   the most favoured. I thank the Committee for listening so kindly to this
   long enumeration. Gentlemen will perceive, I am sure, that it is not from
   pedantry that I mention the names of so many books and authors. But
   just as, in our debates on civil affairs, we constantly draw illustrations
   from civil history, we must, in a debate about literary property, draw our
   illustrations from literary history. Now, Sir, I have, I think, shown from
   literary history that the effect of my noble friend's plan would be to give
   to crude and imperfect works, to third-rate and fourth-rate works, a
   great advantage over the highest productions of genius. It is impossible
   to account for the facts which I have laid before you by attributing
   them to mere accident. Their number is too great, their character too
   uniform. We must seek for some other explanation; and we shall easily
   find one.

   It is the law of our nature that the mind shall attain its full power by
   slow degrees; and this is especially true of the most vigorous minds.
   Young men, no doubt, have often produced works of great merit; but it
   would be impossible to name any writer of the first order whose juvenile
   performances were his best. That all the most valuable books of history,
   of philology, of physical and metaphysical science, of divinity, of political
   economy, have been produced by men of mature years will hardly be
   disputed. The case may not be quite so clear as respects works of the
   imagination. And yet I know no work of the imagination of the very
   highest class that was ever, in any age or country, produced by a man
   under thirty-five. Whatever powers a youth may have received from
   nature, it is impossible that his taste and judgment can be ripe, that his
   mind can be richly stored with images, that he can have observed the
   vicissitudes of life, that he can have studied the nicer shades of
   character. How, as Marmontel very sensibly said, is a person to paint
   portraits who has never seen faces? On the whole, I believe that I may,
   without fear of contradiction, affirm this, that of the good books now
   extant in the world more than nineteen-twentieths were published after
   the writers had attained the age of forty. If this be so, it is evident that
   the plan of my noble friend is framed on a vicious principle. For, while he
   gives to juvenile productions a very much larger protection than they
   now enjoy, he does comparatively little for the works of men in the full
   maturity of their powers, and absolutely nothing for any work which is
   published during the last three years of the life of the writer. For, by the
   existing law, the copyright of such a work lasts twenty-eight years from
   the publication; and my noble friend gives only twenty-five years, to be
   reckoned from the writer's death.

   What I recommend is that the certain term, reckoned from the date of
   publication, shall be forty-two years instead of twenty-eight years. In
   this arrangement there is no uncertainty, no inequality. The advantage
   which I propose to give will be the same to every book. No work will
   have so long a copyright as my noble friend gives to some books, or so
   short a copyright as he gives to others. No copyright will last ninety
   years. No copyright will end in twenty-eight years. To every book
   published in the course of the last seventeen years of a writer's life I
   give a longer term of copyright than my noble friend gives; and I am
   confident that no person versed in literary history will deny this,that in
   general the most valuable works of an author are published in the course
   of the last seventeen years of his life. I will rapidly enumerate a few,
   and but a few, of the great works of English writers to which my plan is
   more favourable than my noble friend's plan. To Lear, to Macbeth, to
   Othello, to the Fairy Queen, to the Paradise Lost, to Bacon's Novum
   Organum and De Augmentis, to Locke's Essay on the Human
   Understanding, to Clarendon's History, to Hume's History, to Gibbon's
   History, to Smith's Wealth of Nations, to Addison's Spectators, to almost
   all the great works of Burke, to Clarissa and Sir Charles Grandison, to
   Joseph Andrews, Tom Jones and Amelia, and, with the single exception
   of Waverley, to all the novels of Sir Walter Scott, I give a longer term of
   copyright than my noble friend gives. Can he match that list? Does not
   that list contain what England has produced greatest in many various
   ways—poetry, philosophy, history, eloquence, wit, skilful portraiture of
   life and manners? I confidently therefore call on the Committee to take
   my plan in preference to the plan of my noble friend. I have shown that
   the protection which he proposes to give to letters is unequal, and
   unequal in the worst way. I have shown that his plan is to give
   protection to books in inverse proportion to their merit. I shall move
   when we come to the third clause of the bill to omit the words
   "twenty-five years," and in a subsequent part of the same clause I shall
   move to substitute for the words "twenty-eight years" the words
   "forty-two years." I earnestly hope that the Committee will adopt these
   amendments; and I feel the firmest conviction that my noble friend's bill,
   so amended, will confer a great boon on men of letters with the smallest
   possible inconvenience to the public.