The Copyright Question by George N. Morang
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The Copyright Question
A Letter to the Toronto Board _of_ Trade
By
GEORGE N. MORANG
Toronto
George N. Morang & Company, Limited
1902
The
Copyright Question
BROWN-SEARLE PRINTING COMPANY
89 Wellington St. West
TORONTO, FEBRUARY 19, 1902
_The Secretary_,
_The Board of Trade_,
_Toronto_
SIR--
The Council of the Board of Trade lately adopted a resolution asking that
Canadian Legislation be passed, giving effect to the Copyright Bill
proposed in 1895 by Mr. Hall Caine, "making it obligatory that a book
shall be printed and bound in this country in order to secure Canadian
copyright, and continue to be so printed and bound in order to retain such
copyright, and that upon failure to print in Canada within a reasonable
time, provision shall be made _by which the Government may issue to a
Canadian publisher a license to print in Canada_, subject to such
safeguards as will secure to the owner of such book a reasonable royalty
upon his work." The resolution is to be forwarded to the Boards of Trade
of other cities in Canada, together with the request that they join in
representations to the Government asking their consideration of this
important question, and urging the passing of this legislation.
This resolution emanated from the Wholesale Booksellers' Section of the
Board of Trade, of which Mr. W.J. Gage is the Chairman. The Report of this
Section presented to the Board recites, that in 1895 Mr. Hall Caine came
to this country, the duly accredited representative of English authors,
accompanied by Mr. Daldy, representing the English publishers, and that
after a conference with Canadian publishers, papermakers, printers and
bookbinders, a draft Bill was completed, which Mr. Hall Caine announced to
the Canadian Government as containing an understanding reached with the
Canadian publishers, and to which Mr. Daldy, on behalf of the English
publishers, consented. These statements were made in the Report of the
Section, notwithstanding the fact that at a Committee meeting composed of
its members held last year, I read a letter from the Secretary of the
British Society of Authors stating that Mr. Hall Caine's proposed Bill had
never received the approval of the Society; and although at the same
meeting I stated that Mr. Daldy had informed me he had never consented to
the Bill. After the Report of the action of the Board of Trade reached
England, Mr. Daldy addressed a letter to "The Publishers' Circular," from
which I quote:--
"So far from consenting to it (i.e., the Hall Caine Bill), I pointed
out several important errors to which I could not agree; and being
invited by some printers, publishers, and papermakers to meet them in
Toronto just afterwards, I distinctly assured them that I could not
consent to any restriction of the rights and privileges contained in
the Imperial Acts of 1842 and 1886."
I was absent from Toronto when the Booksellers' Section framed and passed
its Report, and only returned to Toronto after it had been adopted at the
meeting of the Council of the Board. Knowing that the Council was being
misled, I communicated with the President and requested that I might be
heard before the Council, offering to explain the copyright question,
which I knew was little understood by the members, of whom only two or
three are publishers. The President frankly admitted to me that he had not
investigated the question, and told me he would bring my request before
the next meeting of the Council. I was somewhat surprised to receive a
letter from the President a few days afterwards declining to allow me to
be heard, and still more surprised to read that in his annual address to
the Board, delivered four days later, he energetically pressed upon the
Board the necessity for the legislation referred to in the resolution of
the Council.
I therefore take this means of presenting the true position of literary
copyright in Canada, a subject which is but little understood, and upon
which the Executive and the Council apparently did not desire
enlightenment.
Under the British Copyright Laws, which extend to Canada, a British or
Canadian author of a literary work has the undisputed right to his
manuscript; he may withhold, or he may communicate it, and in
communicating it he may limit the number of persons to whom it is
imparted, and impose such restrictions as he pleases upon the use and
printing of the work. Foreign reprints of such a work cannot be imported
into Canada. Canadian publishers are just as free to deal with authors
under the British Copyright Laws as publishers in the United Kingdom, and
are, therefore, on the same footing as the British publishers.
Prior to 1847, it was a common complaint in Canada that, owing to the
provisions of the Imperial Copyright Act, a sufficient supply of English
literature could not be obtained, whilst the reading public in the United
States were well supplied with the best English books in cheap form. To
remove this ground of complaint, the Imperial Parliament passed the
Foreign Reprints Act (1847), under which Canada was permitted to import
cheap pirated editions of British works produced in the United States, on
an undertaking to collect a Customs duty thereon of 12-1/2 per cent.,
which was to be paid over to the British Government for the benefit of the
authors interested. The results of this legislation were unsatisfactory to
the British authors, few of whom received any benefit under the provisions
of the Act. The sums collected were ridiculously small. In 1894, they
amounted to $1,433.66, and in 1895, to $2,211.33. Whilst the arrangement
was in existence, British copyright works were openly printed in the
United States, and imported into Canada without payment of the duty, to
the exclusion of British editions. So long as this arrangement remained in
force, a British copyright owner could not prevent the importation into
Canada of pirated editions of his work, unless he reprinted the work in
Canada and copyrighted it under the Canadian copyright laws. The
arrangement was terminated by the Canadian Parliament in 1895 at the
instance of Sir John Thompson.
Every lover of books will remember that during the continuance of the
arrangement, a Canadian Publishing Trade hardly existed, and that the
reading public who bought books were compelled in a great measure to
satisfy themselves with American reprints, of so little value that
specimens of them are now regarded almost as curiosities.
Prior to 1887, a Canadian author was entitled to little protection under
the Copyright Laws of European countries, and prior to 1891 was entitled
to no protection whatever under the Copyright Laws of the United States.
In 1886 the Imperial Parliament passed an Act which provides in effect,
that the British Copyright Acts shall apply to a book first produced in
Canada or any other British possession, in like manner as they apply to a
work first produced in the United Kingdom. If the book is copyrighted at
Ottawa, a certificate of registration signed by the Minister of
Agriculture is proof in all Courts throughout the Empire of the existence
of such copyright. No registration in England is required.
In 1887, a comparatively uniform system of International Copyright was
established under the Berne Convention, which applies to the British
Empire, Belgium, France, Germany, Italy, Spain, Switzerland, Norway,
Japan, Luxembourg, Monaco, Tunis, Hayti and Montenegro. These countries
comprise what is called, "The Copyright Union." Under this Convention
Canadian authors enjoy in the other countries of the Union for their
works--whether published in one of those countries or unpublished--the
rights which the respective laws grant to natives. (Austria-Hungary has a
separate Convention with Great Britain on the lines of the Berne
Convention, _from the benefits of which Canada is expressly excepted_). A
book, therefore, first produced in Canada and registered at Ottawa,
obtains at once the same copyright advantages throughout the British
Dominions and the Copyright Union, that it would enjoy if first produced
in the United Kingdom and registered at Stationers' Hall in London.
Prior to 1891, books written in any part of the Empire were public
property in the United States, and, although there were many honorable
exceptions amongst American publishers of reputation, such books were as a
rule appropriated on the scramble system, chiefly to supply material for
the weekly issues of the cheap "Libraries," such as "The Seaside" and "The
Franklin Square." The "fifteen cent quarto" of the Libraries was not a
book; it was usually sold for railway reading, and thrown away at the end
of the journey. Canada was deluged with these productions.
In 1891, the Chace Bill was passed by Congress. One provision of this Bill
enacts, that any citizen or subject of a foreign country, which has been
declared by the President's proclamation to permit citizens of the United
States the benefit of copyright on substantially the same basis as its own
citizens, can obtain copyright in the United States. The author obtaining
such copyright is protected from piracy in the United States, or from
importation of foreign reproductions into the United States. It is
popularly understood in Canada that, before the passage of the Chace Bill,
the Imperial authorities gave some concession, or made some change in the
British Copyright Law, or entered into some International Agreement
providing for reciprocity in the granting of copyright, in order to secure
an arrangement with the United States. Such is not the case.
Only a few days ago, I read a report of an address upon copyright
delivered to the Canadian Club by Mr. Thomas, a leading member of the firm
of The Copp, Clark Company, from the published report of which I quote:--
"In turning to the conditions of copyright in the United States, Mr.
Thomas stated that prior to 1891 there was no protection for British
authors there, and his books were pirated at will. The result was so
disastrously manifest that a conference was held, and an Act was
passed giving them protection. That Uncle Samuel had both eyes open
when the Act was passed and the agreement made, was shown when Mr.
Thomas stated that one condition upon which the British author was
given protection was that the book be printed and made in the United
States, and that it be published prior to or simultaneously with
foreign publication. This action of the Americans was contrasted with
that of the British, who, while they demand the making and publication
of a book in Britain to ensure the protection of copyright, yet
construe the Act so as to allow it to be possible to have the book
made in the United States and then have a sample sent to Stationers'
Hall, London, which sending allows the work to be entered as published
in England. Mr. Thomas said that the United States was the best book
market in the world. He pointed out that the Americans, being aware of
this, compelled the outside authors to have their books published in
the United States. Mr. Thomas was applauded when he said: 'There is
not a single book made outside the United States as a result of this
Act, for if you wish to secure the American copyright you have to have
your book made there. What is sauce for the goose is not sauce for the
gander, for we do not compel books to be published here in order to
secure the British and Canadian copyright.'"
There is no foundation for these statements of Mr. Thomas in regard to the
action of the United States. The Imperial authorities gave no concession
to secure the passage of the Chace Bill, made no change in British
Copyright Laws, entered into no agreement, and Uncle Sam played no sharp
trick upon the unsuspecting Englishman. All this is pure fiction. What
really happened was this, and it may be easily verified by reference to an
English Blue Book, published in 1891, containing the correspondence
relating to the "United States Copyright Act." The Act of Congress was
passed in March, 1891. On the 27th of May, 1891, the American Ambassador
at London wrote to Lord Salisbury, then Foreign Secretary, enclosing a
copy of the Act of Congress, and pointing out that the benefits of the
Statute only extended to citizens of foreign countries after the
President's proclamation had been issued under conditions specified in the
Act. On the 16th of June, 1891, Lord Salisbury wrote the American
Ambassador as follows:--
"Her Majesty's Government is advised that under existing English law
an alien by first publication in any part of Her Majesty's Dominions
can obtain the benefit of English copyright, and that contemporaneous
publication in a foreign country does not prevent the author from
obtaining English copyright."
"That residence in some part of Her Majesty's Dominions is not a
necessary condition to an alien obtaining copyright under the English
copyright law; and
"That the law of copyright in force in all British possessions permits
to citizens of the United States of America the benefit of copyright
on substantially the same basis as to British subjects."
On the first of July, 1891, and without further communication between the
two Governments, the President issued his proclamation proclaiming, that
as satisfactory official assurance had been given that in Great Britain
and the British possessions the law permitted to citizens of the United
States the benefit of copyright on substantially the same basis as to the
citizens of that country, the above condition in the Chace Bill was
fulfilled in respect of British subjects. Thereupon the authors of the
United Kingdom and Canada, and of every other British possession became
entitled to the benefits of copyright in the United States on a perfect
equality with American authors.
It is, therefore, plain that the action of the United States was entirely
voluntary; it was the result of no bargaining; it was a straight
concession to British authors, to secure which the Imperial authorities
conceded nothing. The United States by the Chace Bill conceded to British
subjects privileges substantially equal to those conceded to its own
citizens. The provisions of the Chace Bill are also in force with
Germany, France, Switzerland, Belgium, Italy, Denmark, Portugal, Spain,
Mexico, Netherlands (Holland), Chile, and Costa Rica.
The Chace Bill was the result of a struggle extending over fifty-three
years to secure the recognition in the United States of International
Copyright,--a struggle of authors supported by the most eminent American
publishers and journalists, having in view the relief of the publishing
and all kindred trades from the blight of piracy, and the removal of the
stigma which had rested on the American literary and publishing world.
Prominent in the agitation which terminated in the Chace Bill was the
American Copyright League, which included among its members the authors of
the United States, and was presided over by such men as James Russell
Lowell, Stedman, and Eggleston. The League in a noble letter published in
1887 appealed to all good citizens for justice to foreign authors, upon
the ground that they were entitled to receive from those who read and
benefitted by their books, the same fair payment one would expect to make
on any other article, such as clothes or pictures bought from foreign
producers. The League appealed for the widening of the circulation of the
best new literature, home and international, on the ground of the
lessening of the price which would ensue, in the case of original American
books, from distributing the first cost among the greater number of copies
for which sale would be secured among American readers, if the market were
not flooded by pirated reprints of poor English novels; and in the case of
books of international importance, whether from American, English, or
Continental writers, from giving a basis of law to business arrangements
for sharing the expense of production among the several nations
interested.
A recent report to the United States Senate on the effect of the passage
of the Chace Bill sets forth that the great preponderance of opinion
amongst publishers, book manufacturers, and large printing establishments,
supports the change. The condition of the book trade in the United States
prior to the passage of the Chace Bill in 1891 was deplorable. If the
suggestion of the Board of Trade were adopted, Canada would be in exactly
the same condition as the United States before the Chace Bill was passed.
The Canadian author, therefore, has obtained security in the vast market
of the United States, because of the proclamation of the President, based
on Lord Salisbury's satisfactory official assurance, that in Great Britain
and the British possessions, the law permitted to citizens of the United
States the benefit of copyright on substantially the same basis as to
British subjects. If Canadian authors, Mr. Seton-Thompson, Ralph Connor,
or Dr. Drummond, for example, comply with the provisions of the Chace
Bill, and print and publish in the United States contemporaneously with
the Canadian publication, they secure British and American copyright, with
all the protection of the local copyright laws of the two countries.
Now let us see how an American author, who does not copyright in England
but seeks to publish simultaneously in Canada and the United States, would
be treated in this country, were he to seek to copyright his book in
compliance with the provisions of our Canadian Act, an essential
requirement of which is printing in this country.
In 1875, the Canadian Parliament passed an Act giving copyright for
twenty-eight years from the date of recording, to any author of a book
domiciled in Canada or in any part of the British dominions _or being the
citizen of any country having an International Copyright Treaty with the
United Kingdom_. To secure such copyright the Act provides that the book
must be printed and published, or reprinted and republished in Canada,
_whether so published for the first time or contemporaneously with or
subsequently to the publication elsewhere_. This Act was reserved by the
Governor General. In the same year an Imperial Statute was passed
empowering Her Majesty in Council to assent to the reserved Act. On the
26th of October, 1875, the Royal assent was given to take effect from the
11th of December following. Just as United States Copyright Legislation
requires production in that country so the Canadian Act of 1875 provides,
as pointed out above, that to obtain Canadian copyright for a literary
work it must be produced in Canada.
The Canadian authorities have steadily declined to permit the registration
of copyright under the Canadian Copyright Act to citizens of the United
States, the ground of objection being, that the enactment of the Congress
of the United States and the President's proclamation of July 1st, 1891,
extending the benefits of the Chace Bill to all British subjects, did not
constitute "an International Copyright Treaty" within the meaning of the
Canadian Copyright Act, which provides, as pointed out above, that _any
person domiciled in Canada or any part of the British possessions, or
being a citizen of any country having an International Copyright Treaty
with the United Kingdom_, who is an author of any book, etc., shall have
the sole right of printing, publishing, etc., for a number of years on
certain conditions. This is a narrow construction of the Canadian Act, and
savours somewhat of smartness and sharp practice. I believe it is not a
fair construction and is certainly not in accord with the spirit and
manifest intention of the Act. I am not alone in entertaining this opinion
which still remains to be tested.
In February, 1897, the United States Government proposed the negotiation
of a Copyright Convention which would expressly meet this allegation of
the Canadian Government. This proposal the Canadian Government declined to
entertain.
Far greater liberality in copyright matters is shown in the United States
to Canadian authors, than is shown in Canada to American authors. A
Canadian author can secure copyright in the United States if he prints his
work in that country, and publishes contemporaneously with the publication
in Canada. An American author parting with his rights for Canada to a
Canadian publisher who may print an edition in Canada, cannot, as the law
is interpreted at Ottawa, secure any protection in the Canadian market
until after the book has been registered at Stationers' Hall in London.
As the law is construed in England, an author who desires to secure
British copyright by publication in Canada must comply with the Canadian
requirements, one of which requirements is that the work must be printed
here. But if an American author prints his work in Canada, copyright is
refused him at Ottawa. He cannot, therefore, secure any protection
whatever in Canada, unless he takes his work to England, publishes there
contemporaneously with his publication in the United States, and registers
at Stationers' Hall in London. If he were allowed after printing in Canada
to register his copyright under the Canadian Act he would thereby acquire
all the advantages of the Imperial Copyright Acts; but this is denied him.
He cannot secure any protection whatever under our local laws, nor can he
even bring an action to prevent infringement of his rights until after he
has registered his book at Stationers' Hall in London.
The Canadian rights in any American book which is likely to have a
considerable sale in Canada are quickly purchased by some Canadian
publisher, and the book is published simultaneously with the publication
in England and the United States. Mr. Winston Churchill's "Crisis," and
Miss Mary Johnston's "Audrey," are examples of such books. If the English
publication, with consequent delays, could be dispensed with and all the
advantages of the British Copyright Acts could be acquired by printing and
contemporaneous publishing in Canada, as they could be acquired were the
bar against registration at Ottawa removed, a strong inducement would be
offered to copyright American books in Canada.
The importation of American books in sheets into Canada is considerable,
although it is yearly diminishing as our publishing facilities increase
and trade grows. The present duty of 20% is an obstacle to such
importation, and if the facilities I have referred to were afforded in
Canada to the American authors, and the present tedious delays occasioned
by the necessity of obtaining British copyright removed, an end would be
put to the importation in sheets of many books, and an effectual end in
the case of more popular works of fiction, which have a sure market in
Canada.
The principal difficulty which British authors and Canadian publishers had
to contend with prior to 1891, was due to the proximity of the United
States. So long as the Canadian law remained in force which provided for
the collection of the 12-1/2% duty for the benefit of British authors, the
importation of cheap pirated editions of British works could not be
prevented, unless the work was reproduced in Canada, and such reproduction
was impossible chiefly owing to the limited market and unsettled copyright
conditions in this country.
The passage of the Chace Bill by Congress and the President's proclamation
changed the whole aspect of the Canadian Publishing Trade, but the making
of a Canadian edition of a British book still remained a more precarious
speculation for the Canadian publisher, than the making of a British one
was for the British publisher. When the British publisher made an
arrangement with an author either by out-and-out purchase, or by an agreed
royalty, and issued a copyrighted edition, he had the market to himself,
and no man might sell a copy of any edition therein. When the Canadian
publisher made an arrangement with an author or copyright owner to bring
out a Canadian edition--a speculation involving considerable pecuniary
risk--he had to pay for the right to do it as the English publisher had,
but his market was likely to be interfered with by an influx of copies of
a cheap edition from the Old Country, not sold to the public in the United
Kingdom, but prepared expressly for exportation to Canada and other
possessions and styled a "Colonial Edition." A Canadian publisher might
have purchased from an English author the right to reproduce a Canadian
edition; he might have gone to large expense in advertising and
popularizing his purchase, yet, before his books could be placed on the
counters of Canadian retail dealers, he as a rule found in the market the
cheap Colonial Edition imported to compete with and undersell his own,
even although he had contracted as effectually as he could with the
English author and publisher for the Canadian market.
In 1899, the third International Congress of Publishers was held in
London, at which there was a representative gathering of British and
foreign publishers. The question of Canadian copyright occupied one of the
sittings of the Congress. Professor Mavor, representing the Canadian
Authors' Society was present, and delivered an interesting address, from
the official report of which I quote:--