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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:--

Copyright (c) 2007. bestextbooks.com. All rights reserved.

Various - "Atlantic Monthly, Vol. 12, August, 1863, No. 70"

William Carleton - "The Ned M'Keown Stories"

William Lilly - "William Lilly's History of His Life and Times"

Thomas Baker - "The Fine Lady's Airs (1709)"

Over the moon
Latest news and features from guardian.co.uk, the world's leading liberal voice

Under the Sun: The Letters of Bruce Chatwin

We all want to be happy, we want our children to be happy, and there are countless books advising us how to achieve happiness. But is this really what we should be aiming for?

"A fly bothers me, I kill it: you kill what bothers you. If I had not killed the fly, it would have been out of pure liberalism: I am liberal in order not to be a killer."

Roland Barthes by Roland Barthes

^'He was not to be described as a happy person," Diana Trilling wrote in a memoir about her husband, the critic Lionel Trilling. "Indeed, he thought poorly of happiness and of people who claimed to be happy or desired happiness above other gratifications in life . . . seriousness was the desirable condition of man." It is easy to make all sorts of assumptions about why an unhappy person would not value happiness; and indeed why seriousness might be seen as an alternative to happiness; or just to say that it was seriousness that made Trilling happy. One of the ways in which happiness is made to seem like an inclusive ideal – the ways it charms us – is by our asserting that by definition the things that matter most to us must make us happy, that that is how we know they are good. It's as though one word could do the work of the moral imagination.

Or can we just say that if happiness is one's aspiration, then learning about the history of the slave trade, say, or watching the news, or indeed ageing are all to be avoided. And yet learning about the terrible things people can do to each other, and the history of the terrible things people have done to each other, is important – we can't imagine a life without it – and gives some people a great deal of pleasure; pleasure, as psychoanalysts might say, of various kinds. Anyone who has or knows children, or remembers being a child, will know how happy it can make them tormenting their siblings. And so if we value happiness we can't help but wonder what morality it entails, what kind of morality it might involve us in.

It is not surprising, in other words, that happiness has always had rather a mixed reception. No one in their right minds we might think, especially now, would be promoting unhappiness; and yet the promotion, the preferring of happiness – the assumption of a right to happiness – brings with it a lot of things we might not like. And the desire for happiness may reveal things about ourselves that we like even less. "A people who conceive life to be the pursuit of happiness must be chronically unhappy," the anthropologist Marshall Sahlins wrote.

What are we going to have to do, what are we going to have to become, what are we going to have to renounce or ignore if we want to be happy? Or if we are to propose happiness, or its pursuit, as some kind of right? We tend to make rights of things we assume to be in short supply, things perpetually under threat. Wherever there is scarcity now human rights are asserted; and the assertion of rights is reactive to a sense of scarcity deemed to be needless. Or, to put it slightly differently, calling something a right can be a way of rhetorically enforcing an important wish, a way of making a wish sound important.

I want to begin with three fairly obvious propositions that are also misgivings about the right to happiness or its pursuit. And I'd like to suggest that the right to frustration may be more useful and interesting – more enlivening – than the right to happiness. That's to say I want to waylay the common, all-too-plausible idea that the solution to frustration is satisfaction, or that happiness is the answer to unhappiness, or that if we get rid of the bad things, the good things will start happening. Happiness and the right to pursue it are sometimes wildly unrealistic as ideals; and, because wildly unrealistic, unconsciously self-destructive.

Because happiness is not always the kind of thing that can be pursued, we should view it, more often than not, as a lucky side effect but not a calculable or calculated end. Making it such an end all too easily brings out the worst in us. If this is a version, to rewrite John Lennon's famous line, of "happiness is what happens to you when you are doing something else", it also suggests that scarcity is integral to a sense of reality; that we should be thinking of what Philip Larkin in "Born Yesterday" called "a skilled, / Vigilant, flexible, / Unemphasised, enthralled / Catching of happiness" rather than the engineering of it.

Our relation to happiness often betrays an unconscious desire for disillusionment. The wanting of it and the having of it can seem like two quite different things. And this is what makes wishing so interesting; because wishing is always too knowing. When we wish we are too convinced of our pleasures, too certain that we know what we want. The belief that we can arrange our happiness – as though happiness were akin to justice, which we can work towards – may be to misrecognise the very thing that concerns us.

My three fairly obvious propositions are: first, in Freud's formulation from Civilisation and its Discontents, "happiness is something essentially subjective" (subjective I take it, in the sense of being not only personal but idiosyncratic). We can be surprised by what makes us happy, and it will not necessarily be something that makes other people happy. This has significant consequences not least in the area of our lives that is sometimes conducive to happiness, sexuality. And this makes happiness as a social or communal pursuit complicated. We have only to imagine what it would be for someone to propose that we had a right to sexual satisfaction to imagine both how we might contrive this and what terrible things might be done in its name.

Second, bad things can make us happy – and by bad things I mean things consensually agreed to be unacceptable. It clearly makes some people happy to live in a world without Jews, or homosexuals, or immigrants, and so on. There are also what we might call genuinely bad things, like seriously harming people and other animals, that gives some people the pleasure they most crave. I remember a very unhappy boy of 10 telling me in a psychotherapy session that he was only happy when he was cutting the feet off rats that he had caught. He said it made him feel "really awake", that it was like "turning on the light in your favourite room in the world". Cruelty and humiliation make some people happy, perhaps lots of people happy some of the time; and this issue is not dealt with merely by saying that they are not really happy or that they are in some way perverse or sick. We tend to pathologise the forms of happiness we cannot bear. If we are to have a right to happiness or to its pursuit – two different things – we must then acknowledge the full range of things that make people happy. This means taking them at their word. Cruelty can make people happy. And we might then want to think about what problem, or rather problems, happiness is deemed to be the solution to. It is not, for example, incidental to our predicament that so many of our pleasures are, or are felt to be, forbidden (this is what Freud's account of the Oedipus complex is a way of thinking about). So put briefly – as every child and therefore every adult knows – being bad can make you happy. Happiness is subjective, it takes many forms, and one of its forms is immorality.

Last but not least – though the least exciting – is the third point: some people like being unhappy. Indeed for some people their lives can be construed as the pursuit of unhappiness. It is astounding the lengths to which some people will go to be unhappy, to contrive their own misery, as though happiness itself were a phobic object and held terrors. And we don't talk of the right to be unhappy, when we should. Unhappiness can, after all, among many other things, be the registration of injustice or loss. At its best, a culture committed to the pursuit of happiness might be committed, say, to the diminishing of injustice; but at its worst, the culture of happiness may proscribe a whole range of feelings and perceptions.

It is sometimes said that psychoanalysis is one of the last places in the culture where people are allowed to be unhappy. And clearly psychoanalysis protects, if it does not actually foster, a person's right to be unhappy. The subjectivity of happiness, what it is that the individual really loves and gets pleasure from, the immorality of pleasures and the lure of transgression, happiness as a perversion, the fear of pleasure and the masochistic solution – all this is the material of psychoanalysis, and not only of psychoanalysis.

Yet, historically, psychoanalysis is the inheritor of a set of political propositions it would seem to be at odds with; or at least at a very odd angle to. If Freud and happiness doesn't sound like a very promising subject, Freud and rights seems even less so (there's only one reference to the rights of man in Freud's work). Rights, like class, have never really been the thing for psychoanalysis; omissions, one would think, of some significance. Don't have much confidence in the so-called rights of man, Freud seems to say in his New Introductory Lectures; they are no match for the ferocity of inner morality – the super-ego, or "conscience". The whole business of rights only turns up when the individual, the melancholic individual, is briefly released from his internal regime ("For after a certain number of months the whole moral fuss is over, the criticism of the superego is silent, the ego is rehabilitated and again enjoys all the rights of man till the next attack.") Morality, at least in these patients, is periodic, as are the rights of man, the gift, as it were of a higher power.

"Our normal sense of guilt," Freud writes, "is the expression of the tension between the ego and the super-ego". This translates as: our happiness depends on the distance between who we are and who we should be according to the dictates of our internalised morality. We are mostly unhappy because we are rarely as we should be. When the internal authorities are so implacable and sadistic — over-severe, abusive, humiliating, as Freud writes — what are the possibilities for happiness?

The right to happiness, or to its pursuit, would mean the right to a generous super-ego, the right to a super-ego that was on the side of one's pleasure: one that promoted the view that feeling alive was more important than being right or good. It is one of Freud's more horrifying ironies that the pursuit of pleasure incites, calls up, the super-ego. And, of course, when and if pleasure is forbidden its pursuit requires punishment. There is no such thing as a free lunch. Virtue has to be its own reward. To pursue pleasure is to be pursued by punishment. There is no one more moralistic, more coercive, than a hedonist.

As the right to happiness or its pursuit is my subject, and I am by training a child psychotherapist, all this is by way of a lengthy preamble to putting together the famous sentence from Thomas Jefferson's Declaration of Independence with something from the paediatrician and psychoanalyst DW Winnicott's story about child development. I want to ask what, if anything, the right to happiness or its pursuit has to do with the child's development; whether Jefferson's founding declaration has anything to do with the declaration of independence that is the child's personal development.

"We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness". Some of us might not believe in the Creator part now, and some of us might find more and more difficult the idea that people are born equal when the conditions in which they are born are manifestly so unequal; and most of us would want to assume that by "men" Jefferson meant "people". And yet, as many people have noted, the pursuit of happiness – something not mentioned in the French Declaration of the Rights of Man and of the Citizen, nor in the Universal Declaration of Human Rights – seems peculiarly salient; it is the only one of the things listed that is a pursuit.

What exactly might it mean to have an "unalienable right" to "the pursuit of happiness", given that it is fairly obvious that the pursuit of happiness is so morally equivocal – could be, among other things, a threat to the society that promoted it? At first sight it seems to be a pretty good idea; if we are convinced of anything now we are convinced that we are pleasure-seeking creatures, who want to minimise the pain and frustration of our lives. Or at least a "we" could be consolidated around these beliefs. We are the creatures who, possibly unlike any other animal, pursue happiness. But the pursuit of happiness, like the pursuit of liberty – the utopian political projects of the 20th century – has legitimated some of the worst crimes of contemporary history across the political spectrum.

In Jefferson's Declaration, the art critic Dave Hickey has noted, "Happiness is not assured, but its pursuit is protected . . . the government will act to ensure our safety, and it will stand back as we act on our own behalf in the 'pursuit of happiness'. When that pursuit putatively threatens our safety the government invariably steps in. Safety trumps happiness, the government always wins." It is not too much of a stretch here to see, in this account, the government as the parents, and the citizens as adolescent children; the governmental parents protect the pursuit of happiness, but prioritise safety. The developing child pursues his own happiness under the rules and conditions provided by the adults. Children cannot bring themselves up, and children cannot bring up children (in Lord of the Flies the question recurs: "are there any adults?").

If it is said, or written, that we have a right to be happy or to pursue happiness, it is assumed that happiness is something we are capable of, something that is available, if certain obstacles are removed. If liberty is there when tyranny is taken away, happiness is there when whatever makes us unhappy is removed. From a pragmatic point of view the art of a good life involves removing the obstacles to happiness; the picture, if we visualise it, is of something looked for, something looked forward to, and of there being something in the way. And this something in the way could be called an unavailable mother, a prohibitive father, competing sibling, not having enough brains or beauty, or charm, or money, or education, or luck. We would get closer to our happiness were these things acquired; and a reality sense would be something to do with acknowledging which of these things cannot be acquired. It is all about, in short, our relation to obstacles; our distinguishing the intractable from the changeable, what we have to acknowledge from what we can influence; whether our desire is forbidden or not – whether we want a cream cake or another man's wife. It is, in pragmatic terms, about knowing what is possible. And everybody, it seems, is shadowed by an imaginary other person, a lucky counterpart, who gets all the happiness going; Lacan writes of "the jealousy born in a subject in his relation to an other, insofar as this other is held to enjoy a certain form of jouissance or superabundant vitality". This other person presumably enjoys his happiness, his super-abundant vitality with no conflict, with no thought of safety, with no consideration of the rules and conditions required by the good of the rest.

A right to the pursuit of happiness must be a right to remove the obstacles to happiness. This, at least, is the logic of the case. The man called the happiness tsar, Lord Layard, says we now know what makes children happy (the book he co-authored last year is called A Good Childhood). What, then, are the obstacles to the child's happiness, and why can't we set about trying to remove them? And some of them we can remove. But what if the so-called obstacles to happiness are, or sometimes are, among the things that matter most to us? If, say, we love both luxury and justice? What if two mutually exclusive things make us happy, and one has to be abrogated? And what if some obstacles are immovable, untransformable into anything other than obstacles?

There is something about the sexual drive, Freud suggested, that makes it intrinsically unsatisfiable. There are not infinite resources of food, of energy, of medicine. It is, for example, true, as every mother knows, that the mother cannot give the child everything that he wants, and that if she could it wouldn't be what he wanted. That everyone feels left out of something. It is misleading to think that one's parents have been the obstacle to one's happiness, even if they have radically thwarted it. Indeed we might end up thinking that a right to irresolvable conflict might be the most realistic right we could come up with. That the attempt to resolve at least some conflicts was a distraction from finding better ways of living them; that the right to pursue happiness has seduced us into pursuing happiness when we could have been doing something better.

If the alternative to happiness is not, in the binary way, unhappiness; and if happiness has become so insidious, so hypnotic a single end for a good life, why have we wanted this strange narrowing of our intent? What have we lost, or forgotten, or ignored, or paid insufficient attention to, or protected ourselves from by wanting happiness? Happiness, it would seem, is the most plausible of our aims in life. But what psychoanalysis can chip in with here is that we are at our most defensive when we are at our most plausible.

One of the other things we most want is to be able to feel frustrated; to register what we feel deprived of. Frustration issues in many things only one of which is happiness; and happiness can be, at its worst, a pre-emptive strike against frustration, a refuge from it rather than any kind of productive, unpredictable transformation of it. If we want to talk of a right to pursue happiness there needs to be a prior right, as it were, to feel frustration; to be able to bear and to bear with a sense of what is lacking in one's life. And not simply because frustration makes satisfaction possible in the way that hunger can make a meal delicious. But because frustration and satisfaction do not only or always have a logical, a causal, a pragmatic relationship with one another. Or to put it rather more obviously, what we are lacking when we are unhappy is not always happiness, any more than what an alcoholic is lacking is a drink. And proposing a right to the pursuit of happiness may seduce us, by a kind of word-magic, into thinking that happiness is just the thing.

It is of interest that when Winnicott writes about deprivation in children he too talks about rights. "Let us consider the meaning of the anti-social act," he writes in a paper called "The Deprived Child": "for instance, stealing. When a child steals what is sought . . . is not the object stolen; what is sought is the person, the mother from whom the child has the right to steal because she is the mother. In fact every infant at the start can truly claim the right to steal from the mother because the infant invented the mother, thought her up, created her out of an innate capacity to love."

For Winnicott, the child makes the mother he needs and gradually, through disillusionment and hatred, disentangles her, to some extent, from the mother she happens to be. But it is "the mother from whom the child has the right to steal because she is the mother" that I want to consider. Because the thing stolen is not quite or even nearly the thing wanted – which is not a thing, but a mother – it can never satisfy. What we have is a picture of the right to pursue happiness getting stuck, something I think it is prone to do; as though there is something about the pursuit of happiness that sponsors and endorses addiction. In this sense, consumer capitalism is a system tailor-made for deprived children.

The theft requires communicable translation; it requires, as it were, someone to be able to say, or otherwise communicate what it is that is really being pursued. In Winnicott's declaration the child has a right to the pursuit of a mother to get what he needs for his development. He is entitled to a mother; she belongs to him in the sense that his own development belongs to him. A good-enough mother or parents might give you the wherewithal for your pursuit of happiness; they might have backed your desire, helped you to believe in and not only be fearful of your pleasures. But it is more complicated than this. Lives are not the kind of things that can be guaranteed by mothers. And this is where the idea of a right to pursue one's own happiness becomes more interesting.

Do children want to be happy? And if they don't want to be happy what else might they want to be? This would seem to be of some importance because they are growing up in a world in which their parents mostly want them to be happy, or at least don't like them being unhappy, admittedly for a variety of different reasons. And by a world I mean the particular cultures for whom happiness has become the preferred object, or the preferred fetish. Children are supposed to be anti-depressants for their parents.

Happiness is something parents often demand of their children; we, as we say, want our children to be happy; we were once children who's parents wanted us to be happy. And that means the whole spectrum, from not being a worry to them, not making their lives more difficult, being curative of their woes, to the pleasure our parents could take in our pleasure and our wellbeing. We are more dependent on our children than they are on us; and we are dependent, in brief, on their happiness. What makes the child happy is not going to be unlinked to what makes the parents happy. Clearly if a parent lives as if their child has a right to happiness, or a right to its pursuit, and that they are the guardians of this right, they are going to have a difficult, an even more difficult, task on their hands. Lovers often feel that they should be making each other happy when they are in fact making themselves a problem to each other.

So by way of conclusion I want to suggest that a right to the pursuit of happiness is asserted when a capacity for absorption has been sabotaged, when there is a loss of confidence in people's passions. Happiness becomes important when the possibility for absorption is under threat. That the child does not want to be happy – or perhaps, more exactly, the child doesn't want only to be happy – the child wants first to be safe, and then to be absorbed. There are, for example, only two reasons for children to go to school – apart, that is, from acquiring the werewithal to earn a living: to make friends, and to see if they can find something of absorbing interest to themselves.

There is an interesting moment in Lord of the Flies when Henry, one of the "littluns", wanders away from the main group of children. "He went down to the beach and busied himself at the water's edge." William Golding writes: "There were creatures that lived in this last fling of the sea, tiny transparencies that came questing in with the water over the hot, dry sand. With impalpable organs of sense they examined this new field. Perhaps food had appeared where the last incursion there had been none . . . This was fascinating to Henry. He poked about with a bit of stick, that itself was wave-worn and whitened and a vagrant, and tried to control the motions of the scavengers . . . He became absorbed beyond mere happiness as he felt himself exercising control over living things."

The adult narrator can see Henry as in some way identified with these rudimentary scavengers; and the narrator intimates that without adults the children feel how much is out of control or under-controlled. And then there is the remarkable sentence: "He became absorbed beyond mere happiness as he felt himself exercising control over living things." He feels himself exercising control, but he is not, and his absorption is beyond, in excess of, mere happiness. Something else is wanted more than happiness by Henry, and it seems to be the exercise of control over living things, one of which is himself. It would be easy, and partly true, to say that what Henry is absorbed by here, what is beyond mere happiness, is power, control over living things. But Golding is clear about two things; it is an illusion of power – Golding refers to Henry having "the illusion of mastery" – and it is also the absorption itself that is beyond mere happiness. "He became absorbed beyond mere happiness." It is an illusion that absorbs him beyond happiness; in other words, he is playing. Absorption is not in and of itself a moral good; in the novel the tyrannical, sadistic Jack absorbs the attention of a lot of the children who do his bidding. But in proposing, in the context of the novel, that there is a beyond to mere happiness, something else or further that is wanted; and that indeed happiness may be a poor substitute for something else, that happiness may be something that can get in the way of whatever is beyond it; by proposing this Golding is saying something about what can override the pursuit of happiness, and what may be lost in its pursuit. For better and for worse, being able to feel our frustration is the precondition for becoming absorbed. When this is impossible the pursuit of happiness tends to take over. The right to pursue happiness may be, at its worst, the right not to feel frustrated. And if frustration is not allowed to take its course, to take its time, there is no absorption, only refuges from unhappiness. The child is fobbed off with happiness when what she really wants is to get her appetite back. The right to the pursuit of happiness can be a cover story for the wish to hide.

What Ever Happened to Moderism? by Gabriel Josipovici

Bruce Chatwin's letters are as much a performance as anything else he wrote, says Blake Morrison

Does anyone read Bruce Chatwin these days? His friend and biographer Nicholas Shakespeare reports a conversation in Australia in 2001, when a young journalist asked: "Who was Bruce Chatwin?" And another generation has since emerged who are even less likely to have heard of him.

In the late 80s, such a fate would have been unthinkable. Blond, good-looking and charismatic, Chatwin was at the height of his reputation. The Songlines (17 years in the making) topped the bestseller list in 1987; Utz (completed in a few months) was shortlisted for the Booker prize in 1988. His mysterious death the following year, at 48, only added to the allure. Tom Maschler, who also published Salman Rushdie, Ian McEwan and Martin Amis, thought him a greater talent than any of them.

Why has Chatwin's star faded so quickly? Allegations of coldness, snobbery, humourlessness and fabrication haven't helped. Nor have the disavowals of those, like Barry Humphries, who were once his friends. Shakespeare is baffled, nevertheless, that a man whose work was a precursor of the internet – "a connective superhighway without boundaries" – should have fallen into neglect. His hope is that this collection of letters – put together with Chatwin's widow, Elizabeth – can turn things round.

"Chatwin's correspondence reveals much more about himself than he was prepared to expose in his books," he says. Elizabeth agrees: "The letters are the only unreworked writing of his." An unguarded writer certainly ought to be a more knowable writer. But Chatwin enjoyed being an enigma ("I don't believe in coming clean"), and his letters are as much a performance as anything else he wrote, just less polished. When he does let the mask slip to reveal, for example, how eager a socialite he was ("lunch with Noël Coward on Friday", "Escorting Mrs Onassis to the opera next Thursday"), the effect isn't very endearing. Born in a well-to-do Midlands family, Chatwin was sent to boarding school at the age of seven, and the first letters here, to his parents, date from that time. Though he was no precocious literary talent, there are already signs of his consuming passions: a demand for a Romany travel book and an anthology called The Open Road at eight; enthusiasm for a film about Australian cattle-drivers; and later, at 17, the purchase of a Louis XVI chair. More surprising is his talent for boxing. But then Chatwin was always tougher than he appeared, not least in matters of the heart.

He was a tough bargainer, too, "a rather hard-nosed business pro", as he put it; that and his love of objets d'art made Sotheby's a logical career choice. He worked there for seven years, travelling widely while he did. When he isn't gushing over his latest acquisition, his idiom might be that of any other gilded youth. "Had an amusing time in Paris & Rome"; "Weather marvellous"; "This island is absolute paradise". Only in an account of a trip to Afghanistan is there a hint that travel writing might be his forte.

It was at Sotheby's that he met Elizabeth. He proposed to her in Paris, in the Louvre, a romantic gesture. But there isn't much romance in the letter he sent telling a friend about it ("The deed is done and in about three months I'll no longer be a free man"), or in his letters to Elizabeth herself: "My dearest Liz" is about as amorous as he gets. "You do not find pining lovers among the Gypsies," he once wrote, and even during their engagement his approach was briskly practical: "Give up all this nonsense of a deep freeze, do not deprive me of the pleasure of eating fresh food in its due season," he urged, letting her know whose job it would be to run the kitchen.

The marriage came as a shock to friends and colleagues, some of whom supposed that the affluence of Elizabeth's American family must be a factor: as a wedding present, her mother gave them £17,000, enough to buy a Gloucestershire farmhouse set in 47 acres. But Chatwin himself wasn't poor, and his friends were full of largesse ("We are invited to Glenveagh for the stalking in Oct. Or would you prefer Sir James Dundas's fishing lodge opposite Mull?"). Perhaps the real attraction was the emotional security she offered: like his mother, she loved listening to the stories he told when he returned from gallivanting about the globe. "People used to ask me how I felt about his endless absences from home," she writes, "but I knew he was working; he had to be free."

Within a year of marrying he'd quit Sotheby's to read archaeology at Edinburgh University: "Change is the only thing worth living for," he explained, before abandoning the degree halfway through. He couldn't stick anywhere for long, not even London: "I find it fine for three weeks, but thereafter WHAT IS THERE TO DO?" Until Francis Wyndham found Chatwin a place on the Sunday Times magazine he was (as one friend put it) a compass without a needle. He left that job, too, after three years. But in the meantime he learned to write. "He is running away from himself by travelling," his archaeology professor, Stuart Piggott, wrote. But in running away Chatwin was also being true to himself and true to his vision of the nomadic nature of human beings. Travel didn't mean roughing it or embracing an alternative lifestyle. "I am fed [sic] to the back teeth by happy hippie hashish culture (jail is the answer)," he wrote, dismissing 60s dropouts as mere vagrants. He was a home-owner, after all, with a country farm and a London flat, and when travelling he liked to be put up in style: whether Tuscan towers, Greek villas or Indian palaces didn't matter so long as he was properly catered for. "When's lunch?" he'd ask, and when he moved on would offer some token sum to cover his expensive telephone bills.

More serious offence was caused when he stayed with his cousin Monica in Peru and copied pages of her father's journal for his book In Patagonia; he claimed, with some justice, that she had given him permission, but he knew a good story when he saw it and wasn't altogether frank in telling her how much of it he'd lifted.

By 1980, Elizabeth's patience with him had also worn thin ("I was furious with him, totally fed up and exasperated that he took me for granted") and they separated. How much she knew of his affairs with men isn't touched on. Nor do we learn anything about them here: his letters to lovers were either destroyed, or were never written, or where they've survived are blandly circumspect. Sex is the great void here, along with passion. Which isn't to say that Chatwin lacked feelings: his grief at the death of his friend Penelope Betjeman was genuine, as was his attachment to his parents. As for Elizabeth, theirs has not been an easy marriage, he told her mother, "but it survives everything because neither of us has loved anyone else".

In 1986 he was diagnosed with Aids. In letters to friends he claimed to have caught a rare fungus of the bone marrow "known only among 10 Chinese peasants and the corpse of a killer whale cast up on the shores of Arabia". Much less was known about Aids in those days, and Chatwin was desperate to protect his parents from the truth. But what also terrified him was the thought of dying a stereotypical death, one that would identify him as just one more casualty of the Aids epidemic. His frantic tales about killer whale corpses or fungal dust inhaled in a Yunnan bats' cave were a way of exoticising himself, much as his books exoticise the places he visited and the people he met.

At best, a disdain for ordinariness strengthens his writing. But at worst it just seems silly, as when he reports what he's been up to in Patagonia: "I have sung 'Hark the Herald Angels Sing' in Welsh . . . I have dined with a man who knew Butch Cassidy . . . I have discussed the poetics of Mandelstam with a Ukrainian doctor missing both legs." Would discussing Mandelstam with someone who isn't a double-amputee be any less interesting? For Chatwin, clearly, it would.

This is a handsome book, full of informative passages from Shakespeare, illuminating quotes from friends and wonderfully laconic and deflating footnotes from Elizabeth. But the Chatwin who wrote the letters is no truer or more candid than the Chatwin who wrote travel books and fiction. And the books are more engaging and more alive.

Blake Morrison's The Last Weekend is published by Chatto & Windus.