Lord Macaulay on the unwise extension of copyright

At Dyspepsia Generation I happened to see this post:

Speech to the House of Commons 1841.

Can you imagine a modern Congressman making a speech like this?

Can you even think of one that wouldn’t need to have it explained to him in simpler words?

The proposal is to extend the term of copyright from life plus 28 years to life plus 60 years — 10 years less than we now endure.  After initial oratory, Macaulay goes on to make some very sound points indeed.

I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honorable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnsons 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 Doctors 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 Gentlemans Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cooks shop underground. Considered as a reward to him, the difference between a twenty years term and a 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 Johnsons 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 honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.  … 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 honorable and learned friend dwells on the claims of the posterity of great writers. … But, unhappily, it is scarcely possible that, under any system, such a thing can come to pass. My honorable and learned friend does not propose that copyright shall descend to the eldest son, or shall be bound up by irrevocable 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.  …

If, Sir, I wished to find a strong and perfect illustration of the effects which I anticipate from long copyright, I should select my honorable and learned friend will be surprised I should select the case of Miltons granddaughter. As often as this bill has been under discussion, the fate of Miltons granddaughter has been brought forward by the advocates of monopoly. My honorable 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 ancestors works? But, Sir, will my honorable 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 Miltons granddaughter asked charity, Miltons works were the exclusive property of a bookseller. Within a few months of the day on which the benefit was given at Garricks 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. Miltons works are the property of a single publisher. Everybody who wants them must buy them at Tonsons shop, and at Tonsons 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. Miltons works are under a monopoly. Miltons granddaughter is starving. The reader is pillaged; but the writers family is not enriched.  …

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. …

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.

This was prescience indeed.

The record companies used to tell us, in the 1980’s, when there was still a record industry, ‘Home taping is killing music — and it’s illegal.’  Yet who did not possess an album copied onto a cassette tape?  Few of us, I suspect, do not possess a bootleg MP3 today.

The copyright durations of the present day are an excrescence.  Few if any academic works benefit from the massive terms of copyright under which they remain out of print.  The public is harmed, and access denied.  We need to return to some saner system, where books that go out of print go out of copyright, and works in which no man has any longer any financial interest move into the public domain.

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