Frederick George Afflalo.

The Literary year book online

. (page 40 of 83)
Online LibraryFrederick George AfflaloThe Literary year book → online text (page 40 of 83)
Font size
QR-code for this ebook


Digitized by VjOOQ IC



386 THE LITERARY YEAR-BOOK [part ii,

and dramatic copyright in one part of the Act, and with
artistic copyright separately. Subject to the conditions
specified in the Act, protection is given, whether the
author is a British subject or not, to books published, and
musical and dramatic works publicly performed, in Aus-
tralia, before or simultaneously with first publication or
performance elsewhere, for the life of the author and seven
years after his death, or for forty-two years from the date
of publication or performance in Australia, whichever is
the longer, but in the case of a book first published, or of
a musical or dramatic work first performed after the
author's death, for the term of forty-two years. Similar
protection is also accorded to lectures first publicly de-
livered in Australia after the commencement of the Act.
The copyright in an artistic work attaches to works made
in Australia after the commencement of the Act, whether
the author is a British subject or not, and subsists for
forty-two years from the making of the work, or for the
author's life and seven years, whichever shall last the
longer. It is expressly provided that the owner of any
copyright or performing right in any literary, musical, or
dramatic work or artistic work entitled to protection in
Australia by virtue of any Act of the Imperial Parlia
ment, shaU, on obtaining the prescribed certificate of the
registration of his copyright or performing right, have the
same protection in the Comjtnonwealth as the owner of
any copyright or performing right under the Act. The
Act requires a proclamation of the Governor-General to
bring it into force, and it was announced that a proclama- -
tion bringing into force the Commonwealth Copyright Act,
1905, would be issued about the middle of June. A
telegram was received from the Governor-General in July,
stating that the proclamation had not yet been issued, but
that the date fixed for the coming of the Act into operation
would be telegraphed as soon as practicable.

Generally

A number of other colonies have local copyright laws
of their own, and whenever that is the case, ' the con-
ditions of protection which affect wprks first published in



Digitized



byGoogk



PART n.] LAW AND LETTERS 387

any of these must be sought in two bodies of law — ^in the
Acts of the British Parliament, as regards their protection
throughout all parts of the British dominions except the
colony of first publication, and in the Acts or Ordinances
of the Colonial legislative authority, as regards their pro-
tection within the territory of that colony itself (Dr.
Briggs's Law of IrUernatiofUU Copyright^ p. 594).

But copyright acquired in respect of literary works
published m the United Kingdom, extending to every
part of the British dominions, is, of couirse, entitled to
protection in any of these colonies.

Right of Colonial Productions to English
Copyright

The English Copyright Acts apply to a literary or artistic
work first produced in a British possession by virtue of the
International Copyright Act, 1886; but the provisions as
to registration of cop3^ght will not apply where there is
a colonial register, and no copies of a colonial book need
be given to any public library.

Right of Colonial Productions to International

Copyright
See infra.



INTERNATIONAL COPYRIGHT

This depends upon the provisions of the International
Copyright Acts, 1844 to 1886, the Berne Convention of
1807, as modified in 1896, and the Orders in Council
adopting it.

The principal Acts are the International Copyright Acts
of 1844 and 1886, 7 & 8 Vict., c. 12, and 49 & 50 Vict.,
c. 33.

The Copyright Union

The Berne Convention aims at securing reciprocity of
copyright on uniform lines. It applies to most of the
great coimtries of Europe and to Japan, but not to Austria
imd Hungary, or to Russia or Turkey, and the contracting

I3~a



Digitized



byGoogk



388 THE LITERARY YEAR-BOOK [part U.

States are called the Copyright Union. It is provided that
other countries may accede to the Convention.

T$rm of Copyrighl

The author of any literary or artistic work first pro-
duced in a country of the Cop3^ght Union will have
throughout the King's dominions the same copyright as
if the work had been first produced in the United Kinjgdom,
and during the same period, but not any greater right or
longer term of copyright than that enjoyed in the country
where it is produced.

This applies also to works already enjoying copyright
in a foreign country when the Berne Convention was
adopted, with a saving clause as to valuable rights or
interests arising from the prior production of any work
in the United Kingdom.

' Rights ' means strictly legal rights ; * interest,' such
an interest as arises from any investment of capital or
skill.

Territorial Extent of Right

The right extends throughout the countries which are
parties to the Copyright Union, and their colonies or
foreign possessions, if a country has declared itself a party
in respect of its colonies.

Remedy for Infringement Abroad

An English author desiring to stop infringement of his
copyright in a foreign country must pursue his remedy
in the foreign court.

Registration

Neither registration of the work nor the deposit of any
copy will be required of a work produced m a foreign
country in the Copyright Union.

Translations

The exclusive right of translating or authorising trans-
lations is given to authors belonging to one of the countries
of the Union ; but if after ten years an authorized English
translation of a foreign work has not been produced, the



Digitized



byGoogk



PART II.] LAW AND LETTERS 389

dght ceases in the United Kingdom. Similarly, if after
ten jpeaiB a translation of the work of an English author
has not been produced in any country in the Copyright
Union, his right of translation ceases.

International CopYRtGHT in the Colonies

Works produced in India or the colonies enjoy copjrright
in the countries in the Copyright Union.

Countries Outside the Copyright Union

There is a separate convention between Austria and
Hungary and the United Kingdom on the same lines as
the Berne Convention.

Copyright in the United States

English authors can now obtain copyright for their
literary and artistic productions in the United States
under the Chace Act of 1891 and the President's
proclamation; but as regards books and photographs,
chromos and lithographs, two copies, which are reqmred
to be sent to the Librarian of Congress, have to be * printed
from type set within the limits of the United States, or
from plates made therefrom, or from negatives or draw-
ings on stone made within the limits of the United States,
or from transfers made therefrom,' so that an En^ish
author must publish his work simultaneously in the United
Kingdom and in the United States.

An American author, in order to obtain copyright in
England, must publish in England and the United States
simultaneously.

An important decision was reached by the Board of
United States General Appraisers on March 7 last with
reference to the duty on imported sheets, reversing, at
the instance of Messrs. E. P. Dutton and Co., a previous
ruling. The new ruling is as follows : Books of foreign
authors published in the United States are subject to no
duty upon royalty. Books printed and bound al»:oad
are subject to duty upon the entire royalty paid thereon^



Digitized



byGoogk



390 THE LITERARY YEAR-BOOK [PARt it.

Sheets printed abroad and bound and finished into books
in the United States are subject only to duty upon the
percentage of royalty applicable to the parts involved.



LAW REFORM



The last land-mark is still the exhaustive Report of the
Royal Commission on Copyright presented in 1878, and
in the interval the Legislature has not dealt compre^
hensively with any part of the subject except International
Copyright.

A strong Committee of the House of Lords in 1899
reported a Bill rdating to literary copyright, after taking
evidence in 1808 and 1899, and the Bill was introduced in
1900. It would, if carried, codify the law in substance
on the lines recommended in 1878. The most important
provisions are as follows :

Copyright is made expressly to include abridgments,
tran^tions, novelization of dramas, dramatisation of
novels, and adaptation of music. It would endure for
the author's life and thirty years after the year of his
death — ^alike for books, lectures, and performing rights.

Contributors of artides to periodicals, instead of having
to wait twenty-eight years for the right of separate publica-
tion, would acquire it in two years. Newspaper proprietors
would be entitled for eighteen hours to the exclusive right
of publishing foreign news obtained specially for them,
thus making '* news," independently of the form in which
it is conveyed, the subject of copyright.

Meantime the Australian Commonwealth has, as stated
above, passed a comprehensive copyright Act for Australia,
and it is possible that colonial legislation may stir British
opinion and bring nearer the passing of a much-needed
oodif}mig copyright Act by the Imperial Parliament.

Since this hope was expressed last year the satisfaction
of the need has been brought, perhaps, a Httle nearer by
the attention directed to the question of ' reprints.' The
supplement to this year's Annual consists of a classified
list of popular reprints, from which the public will be
enabled to estimate the amount of energy, entexprise*



Digitized



byGoogk



PART 11.] LAW AND LETTERS 39I

judgment, and money devoted by publishers in recent years
to this branch of the trade. On the expiry of the copy-
right in the early editions of Modern Painters and other
works of John Ruskin in the spring of 1907, the late Mr.
George Allen, the publisher of the " Authentic Ruskin,"
Mr. Wedderbum, the editor of the edition de luxe, and one
or two writers in the Saturday Review and the since defunct
Monthly Review, objected to the cheap reprints undertaken
by various houses — including, it is fair to state in this
place, the publishers of the Literary Year-Book — on the
ground that Ruskin's additions to these works, or, rather,
chiefly to Modem Painters, in the period still covered by
Messrs. Allen's copyright, made the reprints from non-
copyright versions virtually a fraud upon the public. The
controversy was debated at length, and not without
acrimony, and though an expression of opinion in this

Elace is likely to be regarded as partial by Messrs. Rout-
dge's critics, I am impelled to say deliberately that, in
my opinion, the case of Messrs. Allen was not proven. The
benefit accruing to the public by possessing in a cheap and
handy form works which Ruskin was content to leave sub-
stantially in the versions from which they were reprinted
through the whole of his active career, and to which his
main addition in his less active later years consisted of
footnotes to Modern Painters questioning or confirming
his previous conclusions, can be discounted by only a few
special students. And certainly most of Ruskin's works
were published in cheap editions by Ruskin House only
within a few years or months of the expiry of the copyright,
while others were not reduced in price till after competition
had actually begun. The conunercial cry for cheap books,
regardless of aU other considerations, cannot be too severely
deprecated. Despite American precept — ^which is some-
what shy of example — ^British publishers do well to
remember that the mere cost of production is not the whole
of the debit side of the ledger. But that the public should
be enabled at the earliest opportunity to enjoy works of
great writers which have fallen out of copyright is in itself
an indisputable proposition, and in order to effect this end
competition is wholesome and to be encouraged. Legisla-
tion, as foreshadowed by Mr. Lloyd George in his replies



Digitized



byGoogk



392 THE LITERARY YEAR-BOOK [part ti.

to two questions in the House of Conuuoos, is likely to
come,, and it. may be assumed that, while scrupulous care
will be taken of the rights of authors to their correct text,
no step will be taken which would deprive the pubUc as a
whple from the privilege of cheap classics, the high
standard of which, as the supplement to this Annual
proves, is so significant a testimony to their value for
culture a&d education.

11. AUTHOR, PUBLISHER, AND AGENT

In the foregoing paragraphs a brief exposition has been
given of the law which governs the barter of literary
property. Author and publisher should know the essential
facts of copyright law, if for no other reason than because
a lawyer is seldom or never called in to draft an agreexnent
between these parties. The assistance of the law is in-
voked in almost every similar relation. In buying or
leasing a house a man would be extremely iU-advised
if he failed to consult his solicitor, but in buying or leasing
a book the author is content to rely on the printed form
of agreement (varying between different publishers but
very slightly in wording), which he exchanges with the
publisher, and which is subject to stamp duty.

General Considerations

We propose now to consider what kinds of agreement
these are, but before we discuss their clauses in detail a
few general observations may be made. Between the
writing of a book and its pubUcation a large number of
processes intervene, many of which have been obscured
rather than illuminated by recent controversial discussions.
Let us try to unravel them a little :

1. A publisher must be found, either directly or by
means of an agent.

2. Terms of publication must be discussed and agreed
between the interested parties.

At this point the publisher's task may be said properly
to begin, and, in view of recent statem^its and conjectures
on the matter, it may fairly be urged that authcMrs are apt
to under-estimate the share due to a publisher in the sue*



Digitized



byGoogk



I>ART n.] LAW AND LETTERS 393

cessful production of their books. It is not merely that
he employs the printers and the binders, thus taking the
responsibility of format and of taste ; his generic function
consists in the distribution of the book, when published, by
means of travellers and advertisement and other agencies
of sale. Above all, in the vast majority of instances, he
pays the initial cost. An author may write another book,
and either recover his lost, or establish his unmade,
reputation, but when a publisher has lost his money on a
book, he has been — stupid and over-confident, perhaps,
but at least — unfortunate in the business on which he
dep^ids for his livelihood. And ill speculation of this kind
is bound to fall to the lot even of a Daniel among book
judges. Hence, in his trade, as in others, the profits on
successful trading must go towards the recoupment of
losses and bad debts, else there would be no margin for
enterprise.

' The author should remember, too, that all the business
side of the transaction falls on the publisher ; he is the
intermediary between his own bookshelves and the public.
The complicated questions of trade discounts, travellers'
commissions, booksellers' terms, and so forth, have all
to be dealt with by the publisher, who must at the same
time be a man of some literary attainments, inasmuch as
his operations extend from the manuscript of the author —
or, rather, as it should always be, from the * copy ' fresh
from the tj^writer — to the last ramifications of selling
the published book. Apart from works of pure scholarship,
for which ex hyfothesi not large sales are anticipated, the
most ' successful ' books, in the sense of remunerative
commercial ventures, often owe as big a debt to the
publisher's expert knowledge and suggesticMis, and to his
business abilities as to the author himself.

Till a few years ago there was no recognised intermediary
between the author and the publisher, and in those more
spacious days of less specialized functions the publisher was
often his own printer and his own bookbinder as well.
The tendcfncy di the present day, however, is to narrow
ttie publi^er» sphere more and more to the business side.-
A class of agents has sprung up -who take the litei;ary side
Off publishers' work more and more ^ut of the handsof the



Digitized



byGoogk



394 THE LITERARY YEAR-BOOK [part II.

publishers. Under these conditions the modem author
rarely brings his book direct to the publisher's office.
He tends to commit it to an agent, whose business it
becomes to find a suitable publisher, and to arrange on
the author's behalf fair terms of publication. In this
tendency of things two obvious facts must be noted :
first, the publishers lose touch with the authors whose •
works they bring out, and, secondly, a great responsibility
rests on the literary agent. The author, accordingly, has
to deal with two intervening * middlemen ' between his
MS. and his readers, and the protection of the Authors'
Society is almost as frequently sought against agents as
against publishers. The attempt in these paragraphs to
put the case for the publishers as prominently before the
writing public as is compatible with fairness has been
rendered more requisite on account of recent endeavours
to represent the publishing trade, and one member of it
conspicuously, as greedy and effete. In the preface to
this Annual due recognition is paid to the merits of the
campaign in favour of cheap books, but no discoverable
merit attaches to the methods of invective by which in
certain quarters this campaign is conducted. The Authors'
Society does not gain in strength or reputation by the help
of an authors' ally whose ostensible desire to multiply the
profits on theu: books is supported by figures which hardly
bear mvestiption and whose motives are complicated by
the needs of a book-shop and a lending library, the former
of which refuses to join the Associated Booksellere, and

^^ ^^^lfJlZ^''^~%^^ ^^"^^y ^f legitimate tradere-
was not founded on a self-supporting basis. But our business
"? ^^'^'f.l^t nf''''* controversy, but fact ; and, presuming
^^ ^"l^- 1. ''''™^ relations between an author and

his publisher we proceed with our discussion of the inter-
mediary agent.

The Agency Clause

wfto wnv the aeent^ a^eemenls, whicb requires

BOOK u« «»ion, but oo future books vddcb. the



Digitized



byGoogk



PART II.] LAW AND LETTERS 395

author may write daring a stated term of jrears. Cases
have not been unknown in which, when one book has
been launched with more of promise than of profit in its
record, the publisher has suggested to the author the
exact lines and scope on which a second book should be
written in order to insure a genuine success. And when
all the preliminaries have been settled, and the author
and publisher together have arranged for the production
of a book for theu* joint and muti:^ advantage, the agent
has then intervened under a clause in his first agreement,
and has claimed a commission on the proceeds of the
book in which from start to finish he had no part nor
parcel. This strikes us as an excessive price to pay for
the agent* s first service, and as distinctly unfair to author
and publisher alike. Indeed, we would go further than
this, and urge that an agent's work stands for all practical
purposes on the same level as a solicitor's. He is called
m oy the author to carry through certain negotiations,
and at the close of these negotiations he should be required
to send in his bill. There should be a scale of fees for his
work, beginning with a low fee for the work, which he
most commonly has to perform, of tying up the parcels
of manuscript with fresh paper and string as they return
to him from successive publishers. He should in no case,
or in only the most exceptional cases, be entitled to deduct
a percentage from the author^s porofits in the form of a
conunission on the agent's preliminary work in finding a
publisher for the book and in arranging the terms of publica-
tion. The ' agency clause ' in particular, which entitles
the agent to * collect and receive all mones^s due imder
the terms of this agreement,' and which acknowledges
the agent's receipt as a good and valid discharge, should
be signed only with the utmost caution. It ties the
author to the agent through the whole career of the book ;
it effectually prevents that rapprochement between the
author and the publisher, ana keeps the publisher at
arm's length, to the detriment of a relationship which might
be useful to both. Many reputable publishers argue that
the ' agency clause ' acts as a deterrent to that whole-
hearted co-operation with the author and that mutual
confidence and harmony which are at the bottom of corn-



Digitized



byGoogk



35f6 THE LITERARY YEAR-BOOK [1»art n.

mercial success ; and though some go too far in the opposite
direction, and commit all the paraphernalia of a publishing
agreement to a simple exchange of letters — an extremely
unsatisfactory 'old fashion — ^we believe in a moderate
conservatism in these matto:^, with the Authors' Society
in the background, and without, as we trust, an
Americanizing monopoly in the foreground.

Four Kinds of Agreement

Whether eftected directly or by means of an agent, the
agreement between author and publisher may take one
of four forms. It may be (i) a royalty agreement, in
which the publisher takes all the costs and risk of produc-
tion, and pays the author a certain percentage on every
copy of the book sold ; (2) a profit-sharing agreement, in
which the author and publisher divide the net profits of
the book; (3) a sale outright of the copyright by the
author to the publisher ; or (4) a commission agreement,
which is more or less exactly the reverse of a royalty
agreement — the author, that is to say, pays all the costs
of production, and pays^ the publisher a commission in
the form of a percentage on the sales effected.

Commissioning the Publisher

This last form of agreement is perhaps the simplest,
though for more than one reason it is the most unpopular
with publishers. We shall not be stating these reasons
unfairly if we say that some of them are disinterested
and others, perhaps, a little interested. . The commission
book, if it is successtul, certainly does not pay the publisher
as well as a royalty book. But apart from this, the
publisher naturally feels considerably less interest in
undertaking it, inasmuch as the whole initiative is taken
out of his hands, and he has to receive the author's sanction
for every pennjrworth of expenditure upon the booikj and
further, to justify such expenditure to the author, who
may be difficult to convince or even hard of understanding,
?with the consequence that commission books, especially
when only a small sale is expected, are often regarded by
publishers as involving more trouble than they are worth,



Digitized



byGoogk



PART II.] LAW AND LETTERS 39r

and are, indeed, usually declined, except in rare cases, by
the best firms.

In entering on a memorandum of agreement for the
publication of a book on commission, to take this fourth
and simplest form first, such memorandum should be sent
by the publisher accompanied, in every instance, by an
estimate for producing the requisite number of copies of
the book under discussion, to form one volume or more
of approximately so many sheets of sixteen pages in such
and such a size of paper. This estimate should state the
rate and amount of the foUowing items :

1. Composition per sheet

2. Paper per ream.

3. Machining per ream.

4. Moulding or stereotyping, per sheet, if required;

5. Binding, per copy or per too copies.
Allowances should also be made for :

6. Illustrations, if required.

7. The brass blocks or letterings required by the binder.

8. The reader's time spent on proofs and revises.

9. Corrections, per hour.
10. Insurance, per £100.

iz. Advertisements, which should be charged to the
author at scale prices as ordered by him for insertion in
papers of his selection;

Based on this estimate, the memorandum will witness
that ' in consideration of the pa3nnent by the author to
the publisber of the amount of the estimate hereinafter
appearing, the receipt of which sxun is hereby acknowledged,
the publishers hereby agree to print, publish, advertise,
and sell a first edition of a number to be agreed upon of
the work written by the author, and entitli^ . . . and
to pay to the author the ^ale profits thereof as herein-



Online LibraryFrederick George AfflaloThe Literary year book → online text (page 40 of 83)