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ART. V.- A Treatise on the Law of Copyright in Books,

Dramatic and Musical Compositions, Letters and other Manuscripts, Engravings and Sculpture, as enacted and administered in England and America, with some Notices of the History of Literary Property. By George TICKNOR CURTIS, Counsellor at Law. Boston: Little & Brown. 1847. 8vo. pp. 450.

The notion of literary property, as it is now entertained, belongs to the peculiar form of modern civilization. An ancient writer would as soon have thought of monopolizing sound, and putting speech itself into a private inclosure, as of securing a permanent and lucrative possession of the creations of his brain. It is true that a momentary property, if we may call it so, was enjoyed by the oldest bards, in their songs; but the enjoyment of any benefit from it was secured only by the personal presence of the singer. The minstrels of the time of Homer, and the rhapsodists who succeeded them, made a precarious living by travelling over Ionia and Greece, and entertaining the assemblies of their countrymen with narrative ballads celebrating the deeds of their forefathers. But the sweet song which the Muse gave to the blind old bard in requital for the loss of his sight was no commodity to be disposed of in the market. Delighted audiences hung entranced upon his inspired lips, and a place of honor was assigned him at the festivals. " Good cheer, in full measure and running over, was his at the hospitable boards of kings and princes; perhaps he was better off in this respect than some of his modern brethren of the craft, with all the advantages of copyright conferred upon them by the law.

A more definite and tangible gain was secured by the lyric poets of Pindar's age. The extravagantly overestimated glories of the victors in the national games created an immense demand for the works of the genius that could sing them in befitting strains. Surely never since have runners, racers, boxers, and pancratists been honored with such lavish and brilliant displays of poetic ornament and imagery, as in the immortal Odes of Pindar; and the princely rivals for the wreath of pine or parsley, the splendid rulers of Syracuse, or Gela, or Cyrene, showed their sense of the value of the poet's numbers by such substantial acknowledgments as few receive in these degenerate days. “A mere song” was a phrase of quite different import at the court of Hiero or Arcesilaus from that which it bears in the present usage. The Attic tragedians may have received something from the theoric treasury for their works, but that is doubtful; the glory of a tragic victory was enough to stimulate the highest genius to the utmost tension of its powers. The rhetoricians and sophists, however, were a money-making race. The former wrote speeches for litigating parties, who could not write them for themselves ; and the latter travelled from city to city, like the itinerant lecturers of the present age; and of both classes many were successful in accumulating large fortunes by their literary labors. Isocrates and Gorgias were wiser in their generation than the children of light.

That books were a common article of trade in Athens, at a very early period, there can be but little doubt ; and that a thriving business was driven by the bibliopoles of that busy city is equally probable. The bookseller and the copyist, — the Bishonons, and the BiBhoypápos, — and private and public libraries, in Athens, and other cities of the Grecian world, bear ample witness that the bookmaking business was not among the smallest or most insignificant of the trades that were plied in the Hellenic states. The story of the Homeric

poems
in the

age

of Pisistratus proves at least that public collections under the patronage of governments go back to a very remote period ; while the literary treasures accumulated at Alexandria imply an extensive and organized industry in the production, multiplication, and distribution of works in every branch of literature, science, and criticism. But what rewards the authors received, what rights of property they enjoyed beyond the ownership of the original autograph copy, we have no means of ascertaining.

At Rome, large libraries, both of Greek and Roman literature, were collected certainly as early as the time of Cicero, - probably earlier. What an eager purchaser of books the great orator himself was is exhibited in the most interesting light by his correspondence with the placid and accomplished Atticus. The learned slave whom he employed in transcribing his own works and those of his favorite authors was the companion of his literary hours and the sharer of his posthumous renown. That he and other illustrious Romans understood the luxuries of the library, and relished them with a keenness that would not discredit modern scholarship and taste, is proved by many precious passages, especially in his letters and his philosophical dialogues. In the third book De Finibus Bonorum et Malorum, this pleasant description occurs.

“Nam, in Tusculano quum essem, vellemque e bibliotheca pueri Luculli quibusdam libris uti, veni in ejus villam, ut eos ipse, ut solebam, inde promerem. Quo quum venissem, M. Catonem, quem ibi esse nescieram, vidi in bibliotheca sedentem, multis circumfusum Stoicorum libris. Erat enim, ut scis, in eo inexhausta aviditas legendi, nec satiari poterat; quippe qui ne reprehensionem quidem vulgi inanem reformidans, in ipsa curia soleret legere sæpe, dum Senatus cogeretur, nibil operæ reipublicæ detrahens; quo magis tum in summo otio, maximaque copia quasi helluari libris, si hoc verbo in tam clara re utendum est, videbatur.”

That bookselling was an extensive business a little later at Rome, many passages in the classical writers of the age of Augustus and afterwards clearly prove. The names of booksellers, - the brothers Sosii, mentioned more than once by Horace, — Pollius and Secundus, and Tryphon, to whom Quintilian inscribes his work, — the designations of the quarters of the city where the trade was carried on,

the portico near Vertumnus and Janus, the Vicus Sandaliarius, and the Argiletum, which were full of booksellers' shops, with their columns covered over with advertisements and titles of new and old works, to attract the buyers as they strolled idly through the streets, — bring up to our minds a series of scenes so like what we behold in the thoroughfares of our modern towns, that we feel strangely familiar and at home

among them.

« Contra Cæsaris est forum taberna,
Scriptis portibus hinc et inde totis,

Omnes ut cito perlegas poetas.” And that the copyists, the bookbinders, and the booksellers did not absorb all the pecuniary gains, we may infer from what Horace, Martial, and other men of letters, occasionally hint. Plautus and Terence, among the more ancient poets, received money for their comedies from the magistrates. Pliny the elder was offered the enormous sum of 400,000 sesterces for a work of his, as he himself states. Horace talks about the paupertas audax, the audacious poverty that drove him to making verses, though at a later period, when he had risen into the ethereal region of court favor, he became so fastidious, that he would not expose his books to be thumbed by the vulgar, or recite them to please the loungers of the forum and the baths.

“ Nulla taberna meos habeat, neque pila, libellos,
Queis manus insudet vulgi, Hermogenisque Tigelli;
Nec recitem cuiquam, nisi amicis, idque coactus,

Non ubivis, coramve quibuslibet.' Martial, who seems to have been in want of cash nearly all the time, — another coincidence with modern manners, and an almost universal law of the genus irritabile, - complains of the smallness of his profits, though his works were the delight of distant nations.

“ Dicitur et nostros cantare Britannia versus;

Quid prodest? nescit sacculus ista meus.' How the idea of an international copyright would have cheered the poet's heart with prophetic visions of coming coin in that painfully vacant sacculus, — the empty pocket, abhorred of gods and men! We cannot help sympathizing with the troubles he hints at in the last epigram of the Eleventh Book, by way of excusing haste.

“ Quamvis tam longo possis satur esse libello,

Lector; adhuc a me disticha pauca petis;
Sed Lupus usuram, puerique diaria poscunt ;

Lectur, solde ; taces, dissimulasque ? vale.” How many poor authors are guilty of unconscious plagiarism, as they repeat the earnest prayer of the Roman epigrammatist, — that the reader would pay ! — the interest on a note is due, the household calls for its daily bread !

At the period to which these passages refer, the writers doubtless received money from the booksellers, in proportion to their popularity and the demand for their works. Martial laughs at a lawyer who had a weakness for writing nullos referentia nummos carmina ; -- a warning to all gentlemen of that profession to let the Muses alone and mind their own business. Notwithstanding these intimations of the extent to which bookmaking and the trades connected with literature were carried, and the idea of property connected with the fact of authorship, we believe there is no indication, either in Greek or Roman law, that the protection of this important interest ever attracted the legislator's attention for a moment. Not a provision for the benefit of authors occurs in the innumerable enactments for the security of every other species of property, in the successive ages of Greek and Roman jurisprudence. The author took his manuscript to the bibliopole, sold it for what he could get, - just as Dr. Johnson sold poor Goldsmith's Vicar of Wakefield, — and that was the last he heard from it, except through the unsatisfying notes of the trump of fame. In fact, though the writing and manufacturing of books occupied many hands, through the classical and mediæval ages, yet literary property -- the right of an author in his works after the autograph copy had once passed out of his possession - cannot be said to have had any existence at all, until the invention and general introduction of the art of printing wholly changed the relation in which the author stood to the community, and extended the multiplication of copies beyond the conceptions of former ages. By the aid of this simple but wonderful mechanism, the able writer became invested with a power over the world of thought, which he could wield with the force, and almost with the speed, of lightning. But it was long before the miraculous agencies of this lever of modern civilization were fully revealed, - still longer before they were brought into unrestricted play, if, indeed, the time has yet arrived. Governments at first monopolized its use, and kindly guarded their people from the dangers which were to be apprehended from such a motive power. But by degrees the application of this method of multiplying books was graciously enlarged by admitting certain licensed persons and companies, under pretty stringent conditions, to a moderate share of the business, and so it went forward, slowly but surely, until the printing-press has become the ruling power of the world, and the interests of literature by its aid have taken their place among the most important economical, intellectual, moral, and political interests of modern times. The rights of authors now occupy the attention of national legislatures and the diplomatic representatives of states. The property of writers in the products of their own brains has been as clearly recognized, though not as completely secured, as the rights of property in other and more tangible forms. Questions pertaining to this subject and growing out of conflicting claims come, like other questions about the rights of property, before our courts of

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