Thomas Babington Macaulay on Copyright Law

In the dissenting opinion of the recent Copyright ruling, viewable here thanks to Wired.com, Justice Breyer quoted Macaulay. A few minutes on the glorious internet led me to Macaulay’s speech to the House of Commons in 1841, much of which I quote below.

But first: Justice Stephen Breyer’s opening paragraph from his dissenting opinion, co-signed by Justice Samuel Alito:

In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new mate­rial.
In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writ­ers”—a bounty designed to encourage new production. As the Court said in Eldred, “‘[t]he economic philosophy behind the [Copyright] [C]lause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’” …

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works—works that have already been created and already are in the American public domain. At the same time, the stat­ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent.

Justice Breyer certainly affirms the opinion of Macaulay in that introduction, but you may be interested in reading longer excerpts from the well-studied speech. Further context is necessary to understand Macaulay’s argument: The current law, at the time of this speech, stated that an author retained copyright for life or 28 years (whichever was longer), and the bill, which Macaulay here opposes, argued that it be extended to 60 years after the death of the author. I leave you to Macaulay’s articulation:

If, Sir, I wished to find a strong and perfect illustration of the effects which I anticipate from long copyright, I should select,–my honourable and learned friend will be surprised,–I should select the case of Milton’s granddaughter. As often as this bill has been under discussion, the fate of Milton’s granddaughter has been brought forward by the advocates of monopoly. My honourable 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 ancestor’s works? But, Sir, will my honourable 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 Milton’s granddaughter asked charity, Milton’s works were the exclusive property of a bookseller. Within a few months of the day on which the benefit was given at Garrick’s 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. Milton’s works are the property of a single publisher. Everybody who wants them must buy them at Tonson’s shop, and at Tonson’s 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. Milton’s works are under a monopoly. Milton’s granddaughter is starving. The reader is pillaged; but the writer’s family is not enriched. Society is taxed doubly. It has to give an exorbitant price for the poems; and it has at the same time to give alms to the only surviving descendant of the poet.

It may help to understand that Tonson’s firm was the first company to make a lot of money off of copyright law, and it was specifically Milton’s Paradise Lost that made Tonson a rich man.

Continuing with Macaulay:

I will give another instance. One of the most instructive, interesting, and delightful books in our language is Boswells Life of Johnson. Now it is well known that Boswells eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honorable and learned friend wishes to make it. Suppose that the copyright of Boswells Life of Johnson had belonged, as it well might, during sixty years, to Boswells eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camdens Britannia.

And in conclusion:

On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrims Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich, for the advantage of the greatgrandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom make nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the words of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

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6 thoughts on “Thomas Babington Macaulay on Copyright Law

  1. It’s quite interesting that Justices Breyer and Alito agree on this issue. The dissenting opinion was written by Breyer, and Alito agreed with him, but I’m sure Alito had reasons that differed (however subtly) from Breyer.
    Theirs is an occupation short on time, but I’d love someday to read the reason Alito withdrew his consent.

  2. If you take Macaulay’s final argument, but swap The Hobbit for Robinson Crusoe and The Giving Tree for Pilgrim’s Progress, the totality of the public would agree with Thomas Jefferson’s statement that “the benefit even of limited monopolies is too doubtful.”
    It’s a thorny issue. Thankfully, it’s not as ugly as the world of pharmaceutical patents.

  3. That may be the copyright for the digital room. Just a guess.

    A copy of a public domain work may be subject to copyright in the same way that a cellist may copyright a recording she makes of a Sibelius work. Again, just a guess.

  4. That’s a damn fine guess. Damn fine. Thanks, indeed.
    I had a strong reaction after reading about copyright extension all day. And my reaction is also fueled by certain ignorance of photographic copyright. f’rinstance: a photo of a painting can have a copyright distinct from the painting. That is something that I will always forget.

  5. Food for thought. The government will find it is much more difficult to reduce copy protections than it is to extend such protections. The very nature of legislation (and perhaps of all bureaucracy) makes precedents accrue much more quickly in favor of more legislation. Additionally, the interested copyright holders – the ones with the most to lose from reducing copy protection – are also generally the ones with the greatest resources (money, connections, and legal expertise) to battle reduced, or even revised, copy protection.

    The structure is such that those with power gain power, and those without are prevented from attaining it. Surprise!

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