Second Speech on Copyright Law

by Thomas Babington Macaulay

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

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

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

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

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

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

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

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

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

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

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

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

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

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