Library Juice 7:24 - November 19, 2004
1. Libr.org News
3. Take Action on Federal Funding for Libraries (ALAWON)
4. A copyright debate from 1922
Quote for the week:
"The third question, freedom, may be the most fundamental of the
questions raised by the information explosion. Can man be free when
his encounters with the media are dominated by the engineered response?
Can he be free when his culture becomes a kind of propaganda system,
when values and concepts are flashed at him so frequently that they are
inescapable? Can he become free when the alternatives for his life are
shown in increasingly limited ways, so that from childhood he is
encouraged to think only in certain terms about what is possible and
which routes can be followed successfully?
"Freedom may be God's greatest gift to man; it is also something that
man achieves, rather than begins with. Obviously, there are different
kinds of freedom; the option to choose between brands of cereal at the
store is different from the freedom to challenge someone in a ticklish,
possible threatening situation. The freedom to believe in what you
choose to believe in, to select and fight for a cause, emerges only
from mature minds and emotions which allow us to recognize the
difference between true and false freedoms."
William Kuhns, _The Information Explosion_ (1971: Thomas Nelson, Inc.),
Homepage of the week: Sam Trosow
1. Libr.org News
Numerous Library Juice readers have asked me to set up an RSS feed, so I
finally went ahead and did that. The RSS feed for Library Juice is at
http://libr.org/Juice/index.rdf . It has the the title of each article
accompanied by a link and a brief description. Please test it out for me
if you use any sort of a news aggregator. I would like to identify and
fix any problems that the feed might have as quickly as possible. Thanks.
I had some complaints that the prices at the Libr.org Cafeshop
(http://www.cafeshops.com/libr) were too high. I sell Libr.org and
Library Juice clothing and other items there, as well as underwear and
other things that say "Kiss Me, I'm a Librarian." It is difficult to set
reasonable prices on Cafeshops, because their base prices (above which
users can mark up their items as much or as little as they want) are
already about right for retail prices. So, I decided to give up on the
idea of making a profit and made the decision to change my pricing policy.
Now, rather than trying to make one or two dollars for Libr.org on every
item sold, I am now only taking a dime. In significantly lowering the
prices I am hoping to see people wearing the stuff at conferences, etc.,
to show their progressive librarian colors. So, consider buying the gear
(as holiday gifts, or whatever), knowing that it's priced as fairly as
possible after cafeshops takes their cut.
Erie County Library crisis
[ sent by multiple people to multiple lists ]
Liblicense-L discussion of the expose of Emerald Publishing's recycling
of articles without acknowledgment. Browse current month's archive
of messages at
[ Thanks Ann Okerson, liblicense-l listowner ]
Howard Dean's critique of the news media in the Yale Daily News
[ From Benton Communications Headlines ]
Review of the new Google Scholar by Gary Price and Shirl Kennedy
[ Bernie Sloan to the JESSE list ]
Google Scholar vs. Real Scholarship
By Andrew Goodman
[ Michele Masterson to Liblicense-L ]
Related article on Google's deal with Elsevier
[ Joseph Esposito to Liblicense-L ]
Mark Alfino, "Intellectual Property and Copyright Ethics," Business and
Professional Ethics Journal, 10.2 (1991): 85-109. Reprinted in Robert A.
Larmer (Ed.), Ethics in the Workplace, Minneapolis, MN: West Publishing
Company, 1996, 278-293.
COLLIB-L members shared the following links in a discussion of the merits
Walt Crawford discussed Wikipedia in the Oct. 2004 issue of his Cites &
Insights, on pages 2-4:
Phantom authority, self-selective recruitment and retention of members in
virtual communities: The case of Wikipedia by Andrea Ciffolilli
First Monday, issue 8:12
Wiki wars: Think this year's presidential debates have been rough? Check
out Wikipedia. Red Herring. October 14, 2004.
The Guardian (UK) October 26, 2004
McHenry, Robert. The Faith-based Encyclopedia. Tech Central Station.
November 15, 2004. http://www.techcentralstation.com/111504A.html
You can explore Wikipedia at http://en.wikipedia.org
[ Thanks to Bernie Sloan for most of these links. ]
On the Commons
a blog founded by David Bollier
[ found on the Information Commons blog ]
The Classics in the Slums
[ Eli Edwards to the PLG list ]
Building furniture out of books
[ James Quinn to Library Underground ]
"Freedom's Fortress: The Library of Congress, 1939-1953"
[ Laura Gottesman [at] LOC to undisclosed recipients ]
Shelved by color
[ Pam Enrici to coworkers ]
3. Take Action on Federal Funding for Libraries (ALAWON)
ALAWON: American Library Association Washington Office Newsline
Volume 13, Number 91, November 15, 2004
In This Issue: CONGRESS CURRENTLY NEGOTIATING FY05 LIBRARY FUNDING
LEVELS; PLANS TO COMPLETE FY05 SPENDING BILLS BY THE END OF THIS
ACTION NEEDED: Please contact your Members of Congress IMMEDIATELY
and ask them to support $223.56 million for Library Services and
Technology Act (LSTA) programs at the Institute for Museum and
Library Services (IMLS) and $22.842 million for the Improving
Literary Through School Libraries program. Both programs are
funded in the Labor, Health and Human Services and Education
Appropriations bill (see Member list below).
The House and Senate are currently negotiating funding levels for
the nine remaining FY 2005 spending bills. Among those bills being
considered, is the Labor, Health and Human Services and Education
Appropriations bill, which funds library programs at the Institute
for Museum and Library Services and at the Department of Education.
Currently, the federal government is operating under a Continuing
Resolution, which funds federal departments and agencies at current
levels until November 20, 2004. Lawmakers will return to
Washington on Nov. 16 and will have until November 20 to complete
work on bills to fund the government for fiscal year 2005 or they
will have to pass another continuing resolution until they can
complete their work.
Given the $8 billion in differences between Senate and House
spending levels, it is critical that you contact your Member of
Congress today and urge them to support funding for libraries.
Libraries, like many other education programs, could face potential
ALA is urging its members to contact their Members of Congress
immediately in support of $223.56 million for Library Services and
Technology Act (LSTA) programs at the Institute for Museum and
Library Services (IMLS) and $22.842 million for the Improving
Literary Through School Libraries program. ALA is also urging for
increased funding for the Title V education program, the Government
Printing Office, the National Agriculture Library, and many other
library related programs.
Members of the House and Senate Labor, Health and Human Services and
Education Appropriations Subcommittee: Senator Arlen Specter
(Chairman) (PA), Senator Thad Cochran (MS), Senator Judd Gregg
(NH), Senator Kay Bailey Hutchison (TX), Senator Larry Craig (ID,
Senator Ted Stevens (AK), Senator Mike DeWine (OH), Senator Richard
Shelby (AL), Senator Tom Harkin (Ranking Member) (IA), Senator
Ernest Hollings (SC), Senator Daniel Inouye (HI, Senator Harry Reid
(NV), Senator Herb Kohl (WI), Senator Patty Murray (WA), Senator
Mary Landrieu (LA), Ralph Regula, OH (R - Chairman), Ernest J.
Istook, Jr., OK (R), Roger F. Wicker, MS (R), Anne Northup, KY (R),
Randy "Duke" Cunningham, CA (R), Kay Granger, TX (R), John E.
Peterson, PA (R), Don Sherwood, PA (R), Dave Weldon, FL (R),
Michael K. Simpson, ID (R),David R. Obey, WI (D - Ranking Member),
Steny H. Hoyer, MD (D), Nita M. Lowey, NY (D), Rosa L. DeLauro, CT
(D), Jesse L. Jackson, Jr., IL (D), Patrick J. Kennedy, RI (D),
Lucille Roybal-Allard, CA (D).
Visit ALA's website for more information and talking points on
these critical programs:
You may call your Senators TOLL-FREE at 1-800-839-5276. Or identify
and send your Member of Congress a letter through the legislative
action center at:
Remember: You Can Call Any MEMBER OF CONGRESS Toll-Free:
ALAWON (ISSN 1069-7799) is a free, irregular publication of the
American Library Association Washington Office. To subscribe to
ALAWON, send the message: subscribe ala-wo
[your_firstname] [your_lastname] to listproc[at]ala.org or go to
http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send
the message: unsubscribe ala-wo to listproc[at]ala.org. ALAWON
archives at http://www.ala.org/washoff/alawon.
ALA Washington Office, e-mail: alawash[at]alawash.org; Web site:
http://www.ala.org/washoff. Executive Director: Emily Sheketoff.
Office of Government Relations: Lynne Bradley, Director; Carol
Ashworth, Don Essex, Joshua Farrelman, Erin Haggerty, Patrice
McDermott and Miriam Nisbet. Office for Information Technology
Policy: Rick Weingarten, Director; Carrie Lowe, Kathy Mitchell,
Carrie Russell. ALAWON Editor: Bernadette Murphy.
4. A copyright debate from 1922
The following is a pair of presentations from the ALA Annual Conference in
Detroit, 1922, discussing a copyright bill in Congress at the time. It is
interesting because it shows how similar the copyright debate was in those
days to now in certain ways, and also because of how different some of the
issues were. It's interesting history, though it is really a really a
rather up-close view of a certain situation rather than an overview of
copyright issues in the early part of the 20th century.
Copyright and the Publishers: A Review of Thirty Years
By M. L. Raney, Librarian, Johns Hopkins University, Baltimore, MD
Second General Session, ALA Annual Conference, Detroit, 1922
We are here to consider a copyright measure introduced (by request) in
Congress April 28 by Mr. Tincher, of Kansas (H. R. 11476). Its titular
author is not committed to it and has yet to make the necessary studies
for the determination of his own attitude.
The bill's putative origin is the so-called Author's League of America.
"So-called" I say, for such copyright organizations in America have always
been but parade bunting hung on publishing fronts, to be discarded after
the parading was over. The reason for such carnivals when the legislator
comes to town is a little lone paragraph in the Constitution of the United
States which says not a word about the manufacturers and sellers of books,
but speaks only of authors and their public. Thus runs a part of
ARTICLE I, SEC. 8. The Congress shall have power: To promote the progress
of science and useful arts, by securing, for limited times, to authors and
inventors, the exclusive right to their respective writings and
The old time publisher has a poor opinion of that subsection and a worse
one still of its English mother, the Statute of Anne. He would amend it
if he could, but there is not the slightest chance. Copyright legislation
remains the concern of authors and their public. As a class, however,
authors are a timorous folk and slow to unite, while the public, in Mr.
Roosevelt's lament, will not take its own part. Rarely, therefore, has
either of these principals functioned constructively in drafting the
measures definitive of their relations. In the one great historic
instance of their conjunction, above noted, the publishers lost perpetual
monopoly, and the author's copyright was won. That eclipse of 1710 will
never be forgot. But while the sceptre had passed from Stationers' Hall,
the role of Warwick remained ever a possibility. And so, what with the
diffidence of authors and the confusion of the people, publishers, busy
and indeed indispensable scribes that they are, together, in the United
States, with the printers, have played conspicuous parts suggesting claims
and formulating terms.
The present bill is no exception. The typographers announce their
willingness to forego an (unproductive) privilege -- for increased tariff
protection. Two publishers draw up the stipulations, and the document is
taken to Washington by the secretary of the Authors' League. The measure
has great capabilities for good, but the zealous scribes could not forego
the temptation of slipping in a clause to the fattening of their own
pockets at tremendous cost to the public and no advantage to authorship --
"not emphasized by authors," as they once expressed it. Will the people's
representatives sign? If the past is any criterion, they will not, for
the publishers have essayed such a rider four other times in the past
thirty years, and suffered four defeats -- two on the floor of Congress,
two in committee.
The bill itself has the worthy purpose of qualifying the United States for
membership in the International Copyright Union, from which, save Russia,
we are the only conspicuous absentee among the powers of the first rank.
We do hold place in the Pan American convention, founded on the same
general principles, but our literary relations are much more intimate with
Europe, especially Great Britain because of common language, than with
South and Central America. We should without question enter the larger
fellowship also, as Brazil has set out to do.
The fundamental principle of this association (called the Berne Union from
its place of birth in 1886) is that copyright once secured in any Union
country has validity, without further formality or cost, throughout all
the countries of the Union.
>From this family of nations we have been barred for thirty years because of
a provision in our law, known as the "manufacturing clause," which denies
copyright to the foreigner unless his book is made here. This was the
price paid to printers in the Act of 1891 for any protection at all to
foreigners other than resident here. Previous to that, literary piracy
was legalized and constituted the national sin, for the remission of which
a host of men and women of high repute in and out of Congress struggled
for a half century before attaining any degree of success.
It is but fair to say, however, that in this particular the United States
were but following European precedent. Our first federal act, which
established the nation's policy for a century, was passed in 1790. This
was three years before France set the precedent of granting, irrespective
of residence of nationality, copyright to anyone publishing a book on her
soil, though in 1852 she took a longer lead by decreeing against
republication (though not against performance) of works first published
abroad, without regard to reciprocity. As for Great Britain, her law was
not superior to ours when the famous petition of fifty-six British authors
was presented to the Senate by Henry Clay in 1837. It took a court
construction of 1868 to establish the applicability to non-residents of
the Act of 1842, which allowed a book first published in the United
Kingdom (England, Scotland, Wales, and Ireland) to bear copyright
throughout the British dominions, while it was not till 1886 that such
protection was given a book first published elsewhere in those dominions.
And even since 1887, when the Berne convention went into effect, it must
be remembered that an American author, to attain copyright in the Union
countries, must publish there first or simultaneously, just as much as a
British author must since 1891 do in the United States to get legal
protection here. Publication twice in each case is necessary.
Finally, in the interest of fairness and sound action, let it be clearly
recognized that American publishers cannot nowadays be charged with the
habit of pirating foreign authors' works as was true before the Act of
1891. There is no National Sin crying out now for expiation. A very
striking proof of this lies in the fact that, though English authors can
since 1891 get under our law by publication here, less than one per cent,
according to a published statement of the Register of Copyrights, have
felt the necessity of doing so.
So that, while the nuisance of double publication should be abated, public
law substituted for private agreements, and the temptation to Canadian
retaliation removed, yet the international situation is not such as to
justify the purchase of such advantages at any price. There is abundant
time for deliberation, and the opportunity for action alike uncompromising
and distinguished. In such unhurried and critical tember, we may now pass
from the bill itself to an examination of Sinbad, the Publishers' Rider.
The proposal is that with the repeal of the manufacturing clause shall go
another, viz., revocation of everybody's right to acquire a foreign book
from any source except the publisher of its American edition. No matter
how shoddily the reprinter might do his work (and there would be no object
in a reprint, except a cheaper one), he would thereby gain monopoly of all
originals shipped here, and could charge at his pleasure. But this is to
state the case in its most innocuous form. Printing here would not, under
the new conditions created by the Act, be requisite to the establishment
of an American edition. The foreign original might be made to serve the
purpose. Three words -- Copyright, John Smith, 1922 -- behind the title
page of two such copies, when registered and deposited in Washington,
would constitute an American edition. The Register of Copyright would not
ask whether there were any more like these. All dealings must be with the
new owner, under the dire penalties of infringement. The inscription of
the magic words would be a matter of arrangement betwen the jobber here
and the publisher there, or between the east and west sides of the same
The first beneficiary of this scheme would be the international publisher.
Through our membership in the Berne Union, all his European issues would
automatically have the protection of our laws against piracy, while only
compliance with the simple formalities above mentioned, with payment of a
dollar per title, would be necessary to qualification as publisher of an
American edition. We could not then order such London books from London
Agents, but must deal instead with the New York house and pay its prices
or do without. What those prices would be is not a matter of conjecture.
For example, one half the titles handled here by The Macmillan Company are
importations; that is, books not printed or reprinted in the United
States. The average rate at which they are priced on this side is 38.3
cents a shilling (which has an actual value at present of 22.5 cents).
Now, as always heretofore, a buyer, whether individual or institution, can
escape such charges by importing from England. The rider to subsection
(a) of Section 6 would block that escape, and exact the higher toll.
The second beneficiary would be the importer of books from countries with
broken down currency, especially Germany, and to a less extent Italy and
France. What a harvest awaits the copyright manipulator in this field.
The German mark has fallen to about one-sixtieth of its ante bellum value,
but the domestic price of books has increased five fold. Under the rules
of the trade, enforced by the Government, this price is trebled in sales
to most foreign countries, including the United States. Even so, that has
made German books cost us about one-fourth as much as in 1914. For the
profiteer, who is alredy finding a way to operate, here is a golden
opportunity, through employment of the American edition fiction, to doule
or treble the price of sure sellers -- which will mean the first rate
manuals of science and philology exploited at the expense of American
investigators and students.
>From the operations of this pair, the bill provides six exemptions -- the
Government, the blind, the traveller, imported libraries, whether bought
en bloc or brought in by the immigrant, foreign newspapers or magazines,
and the imported originals of English translations copyrighted here. In
this line of eight beneficiaries, one misses two faces -- the author, who
gets not an added penny, and the general public for whom his work is done.
These two would like to meet. The Constitution would have them do so
freely. The bill says they may, provided the buyer is a Government
official, or bereft of eyesight, or content with a periodical, or has
money to take a trip to Europe, or to buy a whole library at once. But
the searcher after truth in study and laboratory, the cultivated reader at
home, the impecunious student who has not the price of an ocean voyage --
they will pay heavily for the meeting, if the rider reaches his goal. The
profiteer in foodstuffs for the body is held in execration. What more can
be said of him who would corner the supplies of the brain?
And so, if the rider pulls rein at the White House, it will come to pass
the librarians and bookbuyers of every degree will go very charily about
their foreign acquisitions, for the penalty of a misstep is ugly. Never
knowing what the registry of copyrights in Washington might show, they
will in every instance first inquire whether some monopolist has beat them
there. Is it thus we shall "promote the progress of science and useful
History of the Project
This offering of the publishers is not a new one, though the law of other
countries knows it not. By it they attempt to retrieve one of their two
historic defeats of the past thirty years -- the first, suffered in the At
of 1891 when victory by ambush seemed certain till a month before the
Session's end Senators Sherman and Carlisle discovered the stratagem and
plucked the invaders; the second, suffered in three successive adverse
verdicts in the Supreme Court of the United States, in 1908 and 1913. As
both these contests were waged in adherence to false theories of
copyright, it is well to review them.
Copyright is the exclusive privilege of multiplying and first disposing of
literary and artistic works. It is not a natural right, but one fixed by
statute, as all rights in human society are. A natural right would be an
absolute right, but absolutism is dead; one has not an absolute right to
life itself. A criminal may be sentenced to death and a patriot yield his
life at his country's command in its defense.
This grant is of distinctly modern origin and its entire development can be
traced. The idea was unknown before the invention of printing, though
there was a lively manuscript trade during the Middle Ages and copyists
abundant -- no less than 10,000 in Paris and Orleans alone, it is said.
By the end of the sixteenth century it was coming to be seen that if
authorship, with its attendant advantages to the public, was to flourish
otherwise than at the precarious pleasure of wealthy patrons, the author
should for a limited term have the monopoly of production and sale. It
was a national affair, however, the foreigner was not recognized, and the
native author was protected against importation of the foreign imprint.
Such was the typical situation in the United States when in 1891 Congress
concluded at last to grant the foreigner copyright if he had his book made
here. The publishers lay low, thinking to draw the old non-importation
clause to prevent the customary sale of the original which they would then
undertake to reprint under American copyright. While there is good reason
to suppose that the attempt in court to prevent importation for use as
against sale would have failed, yet the threat of such litigation might
have proved a deterrent to libraries especially. So after mature
deliberation, involving a distinguished Senatorial debate, Congress passed
the Act with a specific proviso insuring to institutions and individuals
the continued right of importation for use, though restricted to two
This decision greatly upset the publishers and they have made repeated
efforts at its repeal, the present being the fourth in thirteen years. It
is not generally known that they tried it twice during the war -- Jan. 8,
1915 (H. R. 20695) and Jan. 27, 1916 (H. R. 10231) -- when public
attention was focused elsewhere, but these bills did not emerge from
committee, since the American Bar Association's Committee on Patent,
Trademark and Copyright, under the chairmanship of R. H. Parkinson, of
Chicago, was awake and made efficient protest.
The most ambitious drive, however, came in connection with the Act of 1909.
This campaign really ran over nearly a decade. Learned counsel was
employed, and elaborate preparations carried through. On May 1, 1901, the
American Publishers' Association and the American Booksellers'
Association, recently formed for the purpose, put into effect a joint pact
placing most classes of books on a net basis, except for a discount of ten
per cent to libraries.
Article III of the Publishers' program ran as follows:
That the members of the Association agree that such net copyrighted books
and all other of their books shall be sold by them to those booksellers
only who will maintain the retail price of such net copyrighted books for
one year, and to those booksellers and jobbers only who will sell their
books further to no one known to them to cut such net prices or whose name
has been given to them by the Association as one who cuts such prices,
The Booksellers, on their part, voted "not to buy, not to keep in stock,
nor to offer for sale, after due notification, the books of any publisher
who declines to support the net price system"; to expel any member
reported by any three of his fellows as having had commerce with a
denounced publisher; to refuse such expelled member or a denouned dealer
Here was an agreement to destroy the business of anyone who refused an oath
to support whatever retail price a publisher might set and join in
punishing those who did not. Here was plain combination in restraint of
trade. One need not necessarily condemn maintenance of price in order to
condemn the coercive methods here employed. The defense lay in the nature
of copyright as a monopoly, which was alleged to place the proprietor
beyond the reach of anti-trust laws, and as sole vendor to control resale.
Two results followed swiftly. First, libraries found their prices advanced
about twenty per cent. The American Library Association, joined by the
National Education Association, protested. Second, R. H. Macy & Company,
blacklisted and blockaded for retailing at $1.24 a net copyrighted $1.40
novel, purchased by them at forty per cent discount, brought suit Dec. 3,
1902, against both Associations and others. On Feb. 23, 1904, the New
York Court of Appeals declared the combination illegal so far as it sought
to control uncopyrighted books. In March the agreement was changed to
cover copyrighted books only, and two publishers instituted suits against
Macy's shortly afterward. The Bobbs-Merrill Company printed, under the
copyright notice of The Castaway, the following in each copy: "The price
of this book at retail is one dollar net. No dealer is licensed to sell
it at a less price, and a sale at a less price will be treated as an
infringement of the copyright." Macy's price was $.89.
Scribner's sought to attain the same end by printing in their catalogs and
bills the following notice: "Copyrighted net books published after May 1,
1901, and copyrighted fiction published after Feb. 1, 1902, are sold on
condition that prices be maintained as provided by the regulations of the
American Publisher's Association." In both these instances, the attempt
was being made by reason of copyright monopoly to impose by notice a
retail price on a dealer with whom there was no privity of contract.
The United States Circuit Court, Southern District of New York, found for
Macy's July 11, 1905, and these verdicts were affirmed June 16, 1906, in
the United States Circuit Court of Appeals for the Second Circuit.
This sequence of events is of the greatest significance to the case which
we have in hand today, for it was in June and November, 1905, and March,
1906, that the three conferences to lay the basis for a bill "to amend and
consolidate the acts respecting copyright," as requested by the Chairman
of the Senate Committee on Patents, were held. The publishers swarmed
over the place, for here was the chance of a lifetime tow in in Congress a
battle they were losing in the courts. Despite the substantial labors of
the Copyright Officer, an amazing strand of privileges, filched from
author and public for the aggrandizement of the publisher, was woven into
the fabric of the draft. Here they inserted absolute prohibition of
importaiotn unless with the reprinter's consent. Continued control after
sale was covered by this astounding clause:
That the copyright secured by this Act shall include the sold and
exclusive right: (b) To sell, distribute, exhibit, or let for hire, or
offer or keep for sale, distribution, exhibition, or hire, any copy of
A purchaser could not even show a book he had bought, let alone sell it at
will, unless the publishers gave written consent, and a violation would
incur the fine or imprisonment fixed for infringement.
And there was much else of the same ilk.
So deftly, however, was the work done by counsel and so assured the
client's manner that the Congressional committees were at first taken in
and spoke for a brief space the approved patois of the publisher. The
trend of events thereafter cannot more certainly be gauged than by reading
side by side the two reports of Chairman Currier dated respectively Jan.
30, 1907, and Feb. 22, 1909. The primary rights of the public were the
keynote of the latter. His eyes and those of the Senate Committee, which
also adopted it, had been opened by the pleas of the American Library
Association, and the Library Copyright League, organized for the purpose
by W. P. Cutter, but especially through the appearance of a brilliant
protagonist of the cultivated reader, at the Hearings of March, 1908, in
the person of William Allen Jenner, a New York lawyer, speaking in his own
name. Mr. Jenner had already got the ear of Congress by the private
publication in 1907 of a masterly analysis of the bill entitled _The
publisher against the people, a plea for the defense_, to be followed
after the Hearings by _The octopus_, similarly issued. Under his
penetrating probe, the proceedings broke up and turned into a general
rat-hunt by all aboard. At the end, the importation right was back where
it ought to be, the disposal section resumed its traditional tenor in the
grant, "To print, reprint, publish, copy, and vend the copyrighted work"
and many other nests were cleared out.
One last stand was yet to be made. The Supreme Court on June 1, 1908, had
affirmed the lower court decisions in the Bobbs-Merrill and Scribner
cases, even though in January, 1907, the publishers had changed their
"agreement" into a "recommendation," without, however, altering coercive
practices. Thus the publisher could not by mere notice limit the price of
resale, nor after the first vending exercise any further right. The final
drive, made at the critical Hearing of Jan. 20, 2909, was in the effort to
insert the following clause:
That subject to the limitations and conditions of this act copyright
secured hereunder shall be entitled to all the rights and remedies which
would be accorded to any other species of property at common law.
Here again appeared Mr. Jenner for the public, joined by Mr. Parkinson,
who, as already seen, was still keeping his vigil in 1916.
This clause was to revive an old claim of the Stationers' Company of
London, which, under the aegis of the Star Chamber, carried so high a hand
for a century and a half from its charter in 1556. Since 1710 when the
Statute of Anne, the first copyright act, went into effect, all copyright
in published works has been statutory. So finally decidd the House of
Lords in 1774. In this spirit the American Constitution wsa written and
the Act of 1790 so contrued by the Supreme Court in 1834 and repeatedly
since. The effect of the clause would probably have been to upset the
Bobbs-Merrill verdict. It failed, and the bill only when so amended was
signed by President Roosevelt on the last day of his second term in 1909.
The end of the American Publishers' Association came in 1914 with the
payment of $140,000 in damages following the third unanimous verdict of
the Supreme Court Dec. 1, 1913, in favor of Macy's.
And now after all this history, with the fate of its sire full before its
eyes, the young National Association of Book Publishers, our nativity
greetings hardly dead on the air, dashes up on the old steed, with the
prettiest trappings the best copyright saddler in America could give him,
determined once more to stay the free flow of the world's through our way,
thus beggaring American art, science and scholarship to fill a private
Copyright -- Reply to M. L. Raney
By Frederic G. Melcher, Executive Secretary, National Association of Book
Fourth General Session
I have asked President Root for the opportunity to make reply to Dr.
Raney's discussion on copyright in the earlier session, not so much to
argue the details of the Copyright Bill as to criticize the spirit in
which his comment on the book-trade was offered.
His speech was called "A Primer of Copyright." This suggested to me, while
being delivered, the following paraphrase of Kipling's well-known verse:
"If the book-trade were as here it seems,
And not the book-trade of my dreams,
But only intrigue, graft and taint,
If the book-trade were,
But -- the book trade ain't."
Like Mayor Hylan in his attitude toward the transportation interests in New
York, Dr. Raney believes that all who have had to do with copyright from
the publisher's angle are to be under suspicion at every turn and ranked
with the sinister interests.
In order to paint the publishers in darkest colors, it seemed necessary in
his argument to explain the Authors' League's connection with the Bill.
This he did by stating that the Author's League was but parade bunting
stretched out in the publishers' interests, to be taken down when the
issue was over. This unfair and inaccurate criticism of the Authors'
League is entirely out of agreement with the facts as known to all. The
Authors' League is a large independent organization with an effective
record, and no publisher is on its committee. In the preliminary work of
arranging for a revision of copyright, the hard work done by Eric Schuler,
secretary of the League, who should be given all praise, and the first
draft of the Bill was drawn by the attorney of the League.
The inaccuracy of the statement that the publishers molded the new
Copyright Bill is shown by the fact that three out of the four principal
workers in the drafting of the Bill were not publishers at all. One of
Mr. Raney's friendly little references to the people who did this work is
in one of his letters where he refers to Major Putnam and Mr. Bowker as
the "Gold Dust Twins" of copyright. Perhaps I will accept that reference,
because, if it comes to copyright matters, these men have done the hard
work and they have done clean work.
Lest it be considered that there is something eccentric in believing that
the present Bill has been drawn with an attempt at justice to all parties,
it should be pointed out that after very careful examination, Dr.
Rothlisberger, Secretary of the Berne convention, approved the phrase
under criticism, and in fact said that he had suggested the same solution
to the Canadian Legislature in a comment on the new Canadian law. Dr.
Raney seemed to believe that the publishers do not like the reference to
copyright in the American Constitution, but this point in his argument did
not seem clear. Publishers are not mentioned in the Constitution, neither
are booksellers or libraries, and the Copyright Bill is merely intended to
give all parties their proper protection in order that the author and
public may be well served.
In a recent letter to our office, Dr. Raney wrote: "As to the washing of
dirty linen, my reference was to the necessary review of the record of the
American Publishers' Association, which in its struggle for monopoly,
suicided to escape the gallows. To me that is dirty linen, but if it is
shoved under our noses we willw ash it." This he has presumably attempted
to do in his brief history of the American Booksellers' Association and
the original American Publishers' Association in their attempt to put
stability into the American book distribution machinery, by finding some
method of standardizing prices. If that is a culpable effort, the
publishers cheerfully take the responsibility. Everyone in this audience
who is familiar with book-trade conditions twenty-five years ago will know
how necessary some such action wsa. Bookstores were blinking out under
pressure of cut-throat competition and new ones were not starting to take
their places. Certainly there was nothing for author or public to gain
from such a condition, and it is worth recording that, although the effort
finally came to a legal disaster, the atmosphere was clarified during the
discussion and that, in spite of the cost, the effort was worth making.
If legal defeat is a proof of sinister intent, then those who have been
favoring the Child Labor Law in Washington should also be under fire.
Dr. Raney has a good deal to say about monopoly, as if that very word
proved that there was a plot against the public. He should keep in mind
that the very essence of copyright is monopoly and that, as authors
continue to need publishers and seek for them, and, as probably half the
books published are conceived in publishing offices, monopoly is a
necessary part of the situation. Libraries on their part have monopoly,
even though bookstores do not. Authors sometimes avoid having publishers,
but it has not yet been claimed that they find advantage in the other
system. Nine-tenths of the books that libraries buy -- probably more than
nine-tenths -- are of American origin and their copyright gives some
publisher a monopoly. The justice of this has not been questioned in Dr.
It should not be forgotten that it may matter to the author whether the
book is bought in the English edition or bought here -- the author's
income does not depend upon the percentage he gets on one sale but on the
total number of sales. If an English author can get five times as many
sales in this country by having a publisher actively interested in this
success, he is better off than if a small number of orders came from those
libraries most actively following the English announcements. This
curtailment of the English author's opportunity is just what this "buy in
England" campaign brings about. The owner of a patent in the American
market does not suffer competition from the same machine made in England.
The purchaser of the dramatic or movie rights for the American market does
not suffer because of importations. But the American publisher is
questioned because he argues that it is better for all hands that there be
someone with full authority to promote a given item in this area.
We should not forget that American authors are also anxious to get
substantial hearings in England, and tthat these hearings are obtained by
an English publisher's promotion and not by casual hearings of a few
copies going to that country.
That authors appreciate the importance of having the undivided support of
publishers and do not stand suspicious of every business house is shown in
a recent signed statement by a group of English authors, who, in
commenting on the situation that developed in connection with Tolstoi's
works, maintained that no author could get a proper hearing wihtout a
publisher and that "it is practically impossible to engage modern capital
in publishing or any other enterprise without property rights."
Just what the Bill provides in the way of free access to the other markets
for the libraries should be noticed. Only books in English fall under
this restriction, and only those books in English which are registered at
Washington by an American publisher as having been duly published in this
country. These might perhaps be ten per cent of the English publications
at most. The book thus being registered, the library can still obtain the
English edition by filing its request with the American publisher, and if
the publisher does not acknowledge and file the order within ten days, the
library can order direct. This English edition would be supplied by the
American publisher at a price equivalent to the English price.
At a hearing before the Senate Committee last December, Dr. Raney gave
figures showing the comparative cost of twenty-five books in England and
America. These prices, he stated, were supplied by a western library of
fifty thousand volumes. Investigation proved that while the English
prices were so supplied, the American prices had been obtained by Dr.
Raney by writing to the individual publishers, who on such orders quoted
the books at ten per ent off, plus postage. This figure would constitute
about as high a price as could be given in any showing, with the natural
result that the comparison was as bad as possible. Certainly there is
nothing in the present discussion of one small phrase of an important Bill
which need lead to arguments of such a nature.
The new Bill has the approval of the leading world authority on copyright,
the friendly comment from England and Canada, and has had the advantage of
being drafted by four recognized experts in copyright law. Under the
circumstances, the publishers are surprised at an attack of such
bitterness on their standing. American publishing is making good strides
forward in the character and variety of books and the ability with which
the needs of this great market are met. In fact, the publishers take
pride in being publishers, as they also take pleasure in their relations
with all groups who have to do with book distribution. I wish to say
finally in the phraseology of Christopher Mornley that "We may be inept,
but we are not sinister."
Editor's note: The copyright bill of 1922 did not pass. The U.S. did not
become a party to the Berne Convention until 1989.
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