I HAVE endeavoured in the foregoing pages to describe the varying conditions under which was carried on, during the ten centuries succeeding the fall of the Roman Empire, the production and distribution of literature. The term “books” is, of course, not strictly applicable to a large portion of the material produced by the scribes during the manuscript period. As a matter of convenience, I have used the phrase “production of literature” to cover what should, speaking more precisely, properly be described as the reproduction or multiplication of literature. The labour of the scribes during the manuscript period was given, as has been noted, almost exclusively to the production of copies of the more or less fragmentary texts that had been preserved from the classic period, or from the writings of the Church Fathers. The case was the same with the earlier printers, whose undertakings were in like manner devoted to old-time literature and with whom the production of a work by a contemporary writer was a comparatively rare exception. During these ten centuries, not a few writers did noteworthy work, and some of the great books of the world’s literature belong to this manuscript period. Even, however, with books recognised later as famous, the fame came but slowly, so that the requirement for the multiplication of those for which demand arose became the task of scribes of the generations succeeding that of the author, rather than of those of his own time. An author like Pope Gregory I. with the vast machinery of the Church at his disposal, was in a position to secure for his writings an immediate distribution and during his own lifetime, to trace the influence of their teachings. Except, however, in such special cases, writers were obliged to content themselves with such present measure of appreciation as might be given by sympathetic readers or hearers in their own monasteries, leaving such of their productions as possessed any abiding vitality to gain repute with future generations of monkish readers, as copies slowly made their way from scriptorium to scriptorium.

During this long period in which the chief difficulty lay in the distribution of books, and in which an author who had anything to say to the world was only too happy if, during his own lifetime, it might prove practicable to reach with his books any number of men outside of his own immediate circle, there could, of course, be no question of property or copyright control in the literary production. Such property as might be said to exist in literature pertained solely to the material form, the manuscript produced, which represented a certain value for parchment and for labour.

After the time of Charlemagne, when there came to be, in a few Court circles and in the homes of the more active-minded noblemen following the fashion set by the Court, an interest in the preservation of literature, we find record of compensation paid to literary producers. Such compensation came first, naturally, to the scribes, who possessed sufficient learning and technical skill to place before the communities in which they themselves lived, the learning of the past. Later, with the beginning of original writing in the form of chronicles, there are instances of rewards or honours conferred upon the monkish chroniclers by the kings or princes whose ancestors were glorified, or whose personal deeds were commemorated. The rewards for literary labour, rewards given, as said, almost exclusively to clerics, most frequently took the form of ecclesiastical preferment. A prebend or a bishopric cost little or nothing to the King, while it meant for the author a very substantial compensation. It is the clerical character of the author and the ecclesiastical nature of his compensation which constitute the principal distinction between the beginnings of compensation for literary labour in the Middle Ages and the arrangements under which were rewarded the poet-chroniclers of the later classic times. The authors of the earliest literature-producing periods sang, as it will be remembered, under the incentive not of princely gifts, but of popular appreciation.

The records of the Benedictine monasteries give evidence of the production and accumulation of certain property in the form of literature, property which increased in available value as methods were developed for exchanges between the different monasteries of the surplus copies of their texts, and which assumed still more importance when, with a gradually developing interest in literature, wealthy laymen were occasionally prepared to give in exchange for the precious manuscripts, lands, cattle, moneys, or desirable privileges. With the development in the respect for learning and letters which in certain portions of Europe followed the establishment, under the general direction of Alcuin, of the imperial schools of Charlemagne, the influence and fame of the monasteries came to be measured very largely by their respective literary activity, the importance of the ancient codices preserved in the scriptoria, and the beauty and accuracy of these texts. A monastery, the collections and the scriptorium of which had in this manner become famous, would be visited by monastic scholars from distant parts who sought opportunity to examine, and possibly to copy, the precious texts, and it was this class of institutions that would be resorted to by the higher class of recluses, who, retiring from the world, enriched with their fortunes the Benedictine foundations. The schools of the literary monasteries would also be selected for the training of the young princes and noblemen, from whom in later years protection and endowments for their almæ matres could often be depended upon. When learning and literary activity served in these several ways to bring to a monastery fame and fortune, it was natural for the monks, whose service as scholars, instructors, and scribes had proved most effective in the scriptorium and in the schools, to be selected for honour and preferment, and that the learned armarius or librarius should frequently become the abbot, and should, later, find himself bishop or archbishop, or even pope. The elevation to the papacy, in 999, of Sylvester II., previously known as Gerbert, Abbot of Bobbio, and as Bishop Gerbert, is an example of such a progress from the scriptorium to the leadership of the Church. I do not, of course, undertake to say that either in Gerbert’s time or during any century of the period in question, there was throughout the monasteries and the ecclesiastical communities as a whole, any universal respect for learning and for literary industry, and that honours and preferment always followed in proportion to the value of the scholarly service rendered. I only point out, as has been stated in the chapters on the monasteries, that even in the so-called “Dark Ages” of Europe, the ages of which the year 1000 may perhaps have been the centre, this was very much more largely the case than is always remembered by historians of a later period writing from a Protestant point of view, some of whom, like D’Aubigné, have appeared to contend that learning and literature had been buried during the thousand years of Catholic rule, and had only been rediscovered by Luther and Calvin. The groundlessness of this kind of contention has, I think, been made clear in the brilliant dissertation on the Dark Ages by the Protestant Maitland, while a mass of testimony in support of Maitland’s views has been collected by Montalembert, evidence the value of which may be weakened but cannot be nullified by the wordy eloquence with which it is presented.

I have spoken of certain monasteries becoming the resort of literary pilgrims on account of their ownership of some treasured manuscript handed down from an earlier generation. When, as was frequently the case, the production of copies of such a text was prohibited altogether, or was permitted only to members of the monastery itself, we have an example of a copyright control of the earlier kind, a control resting upon the ownership not of the text but of the parchment upon which the text had been placed. If, for instance, a well authenticated copy of Augustine’s City of God was held in the scriptorium of Fulda, and another copy, perhaps equally famous, belonged to that of St. Gall, each monastery could prohibit the copying of its own parchment, and could in this manner control the “copyright” of its own particular text. It is to be borne in mind that no two manuscripts could be in exact accord and that a particular character or authority frequently attached to the text or version presented in a particular parchment. Neither monastery could, in the case imagined, assume any right to control what the later English law termed the “copy” of S. Augustine’s treatise, but each exercised what was in substance a copyright at Common Law over the text inscribed on its own particular parchment. In the chapter on S. Columba, reference was made to the famous copyright contention between Columba and the Abbot Finnian, a case the date of which is given as 567, and which was probably, therefore, the earliest copyright issue decided in Europe. While the story itself is in all probability merely one of the long series of legends which grew up about the brilliant Irish saint, it may well have had some historic foundation. The more important consideration, is, however, in the fact that whether the story were true or not as applied to S. Columba, it represented an impression in the mind of the chronicler Adamnan, writing not half a century after the death of the saint, concerning the conception of property in a form of ideas or of instruction, a property which, as made clear in the story, was entirely apart from that inhering in the parchment itself. The possibility of such a conception coming into the mind of a writer of the seventh century, is certainly noteworthy.

Such a copyright control, beginning usually in the form of a prohibition, was developed, later, to some extent into a property right and a source of income. When the armarii or librarii came to realise, first, that other copies of their precious texts were in existence, so that no one monastery was in a position to monopolise this piece of the literature or learning of a past generation; and when, further, they came to understand that gain could be secured for their monastery chest by conceding for pay the privilege of making one or more copies of their codex, the practice of selling such privilege became more and more frequent. It was, in fact, in this manner that the earlier manuscript-dealers who succeeded in establishing a system for the production and distribution of books in manuscript, secured the larger proportion of the texts with which their own collections would begin, the texts which formed what might be called the “copy” for their workshops. Occasionally we read of an Aurispa or a Vespasiano purchasing at a high price some famous and well authenticated so-called original codex; that is to say, a parchment the date of the production of which went back some centuries. More frequently, however, it is a copying privilege which is paid for by the dealer, whose copyist is permitted, under the strictest supervision, to visit the scriptorium and to transcribe the parchment sheets, which are taken from the carefully guarded armarium and are closely watched or even sometimes held by the jealous monks while the process of transcribing goes on. Vespasiano sometimes secures from the librarius of the monastery a signed certificate to the effect that the “copy” produced for him is a complete and accurate transcript. More frequently, however, at this later time, during the century which preceded printing, the scriptoria of the monasteries had been so largely neglected that in many institutions in which were to be found valuable manuscripts highly cherished by their owners, there was no one in the fraternity who was competent to give any judgment upon the accuracy of the scribe’s transcript because there was no one who was able to understand the purport of the manuscript itself.

This demoralised condition of the monastery collections and the apathy and ignorance on the part of the monks controlling those collections, was in many of the monastic centres still more marked during the half century following the invention of printing, when the earlier printers were largely dependent for their “copy” for both the classics and the works of the Fathers, upon such parchments as might still have been preserved in the monastic foundations. In a number of instances, these first printers were obliged, as had been the later manuscript-dealers, to pay for the privilege of examining, collating, and copying. They were, however, frequently able to purchase from monks who no longer valued a parchment even as a fetish, the so-called “original.” For the printer, who had of necessity a larger responsibility for the correctness of his text than rested upon the old manuscript-dealer, the task of securing the “copy” for his compositors was not completed when he had secured control of one manuscript. With not only a risk but a certainty of errors in each parchment, it was necessary to collate a number of parchments before the scholarly printer could feel any assurance that the more pernicious errors at least had been detected and eliminated. Henry Estienne the first speaks, for instance, of using as the basis for one printed text no less than twelve manuscripts. The first copyright known to Europe of the Middle Ages may therefore be considered as that which inhered in the Common Law control of property in the manuscript. It was a copyright which had, of course, nothing whatever to do with the rights of an original producer in the literary production.

Another form of literary property which did not represent literary creation, came into existence when some enterprising armarius, not having in his own collection some much-wanted manuscript, would make the long journey to Rome or to Florence from Fulda, from St. Gall, from Fleury, or even from far-off Glastonbury, and would there secure the needed authority himself to prepare a transcript of some valued codex. His manuscript, brought back to his own monastery, might remain for years the only well authenticated copy of the text in question existing in a large region. Such a manuscript represented, of course, a considerable expenditure of skilled labour, of fatiguing travel, and, occasionally, also of money, an expenditure or an investment which entitled the parchment to be considered as in some sense a property creation, the result of labour. While, as a matter of scholarly fellowship or of Christian brotherhood, the privilege of reading and the far greater privilege of copying such a manuscript, might frequently be extended to fellow Benedictines, the practice of securing some consideration for its use, and particularly for the privilege of making a transcript, obtained not infrequently, and was, under the circumstances, fully warranted. The control of such a manuscript constituted a “copyright” of a somewhat different nature from that previously referred to, which was maintained in the case of some old-time codex that had been inherited or purchased in its original form, and that did not represent any labour on the part of the individual or the community claiming the ownership.

When the first printers began their work, they were of necessity confronted with practically the same conditions and difficulties in connection with the securing of “copy,” as those with which the large manuscript-dealers had had to contend. Their task was, in fact, as already indicated, a more difficult one than that of the manuscript-dealers, because the standard for completeness and correctness of text had become more exacting. The parchments required for their work were, with hardly an exception, the property of monasteries, and whether for purchase, for comparison, or for “copy,” the printers were usually obliged to make substantial compensation for right to copy. This right to copy might be described as a copyright under limitations. The monastery which had received compensation from a printer from Venice for the use of a particular parchment, felt itself under no obligation to decline a similar application from the rival printer of Lyons, or of Basel. The printers were thus estopped from securing any control over the works of the particular author which they proposed to present to the readers of their generation. They were even unable to secure any exclusive right to the use of any particular text of such author, unless, indeed, they had found means to purchase the manuscript outright. A property control of some kind was essential in order to justify the expenditure and the labour required to bring the manuscript into print, and this was finally arrived at, although inadequately enough, under the system of privileges.

While the first printing of books was done in Germany, and while the number of books produced in Germany during the half century after Gutenberg was much greater than in any other country, the beginning of copyright protection for printed books is to be credited to Italy. Gutenberg, Fust, and their immediate successors in Frankfort, Nuremberg, Basel, and Cologne, entered upon their first publishing undertakings without the aid of any government protection or recognition, municipal, state, or imperial. In the chapter on the early printers of Venice, I have described with some detail the system of privileges, a system which, originating in Venice, was adopted in the other Italian States, and which was followed in substance by the other States of Europe. The privileges of the fifteenth and sixteenth centuries were the precursor and the foundation of the later system of copyright.

The privileges granted by the Venetian Government were, as we have seen, of four kinds. The first was in the shape of a sweeping monopoly, under which the beneficiary was granted for a term of years the exclusive right to carry on the business of printing in Venice. Of this class there is but one example, dating from 1469, the details of which are given in the chapter on Italy. The second kind, a little less sweeping, gave to the beneficiary a monopoly for the production of all books of a given class, or in a particular language. The first example of this was the privilege granted, in 1495, to Aldus for the exclusive printing of books in Greek. Under the same division may be classed the privilege given a year or two later, also to Aldus, for the exclusive use of the italic type, a form which was the invention of Aldus. These two divisions of privileges have, of course, no logical connection with copyright. The last named is rather of the character of a patent, while the first two may properly be classed with commercial monopolies. There is this distinction, however, that while commercial monopolies have, as a rule, been granted for the purpose of enriching some favourite of the Crown, or have in some manner represented jobbery at the expense of the people, the legislators who granted the first printing privileges had unquestionably honestly convinced themselves that in no other way could the new art, the importance of which they were prepared to appreciate, be effectively encouraged and established. It was doubtless the case also that Aldus, in incurring expenditure in making Greek type and in printing Greek books, was assuming very serious and speculative risks, and was fairly entitled to all the encouragement which the State could give to him.

The third class of privilege was that securing for an editor or publisher a monopoly for the production of the works of some author of a past generation, usually, in fact, for an author of classic times. This is the form of privilege which, for two centuries succeeding printing, is most frequently met with, and which constituted the foundation on which the publishers of those two centuries carried on their business. The general purpose is the same as that of the general privileges previously specified, namely, to give to a printer-publisher an encouragement or inducement to enter upon an expensive and speculative undertaking which, without such special aid, might, from a commercial point of view, have appeared impracticable. When Aldus desired to undertake the production of the first printed edition of the works of Aristotle, the difficult and venturesome undertaking was made a little less venturesome by the action of the Senate of Venice in prohibiting for a term of ten years the printing of any other editions of Aristotle. It is to be borne in mind that such a privilege, while sweeping in character, was very limited as to territory. There was nothing in law to prevent the printing in Milan of the rival edition of the Aristotle which was prohibited in Venice, nor even the use for such rival work of text and the editorial material appropriated from the volumes of Aldus. The protection given (still within narrow territorial limits) to such collated texts and original notes and introductions, belongs in essence under the fourth class of privilege, the class in which we find the first recognition of the principle of copyright in a literary production for the sake of the producer or of his assigns. The earliest European example of the third class of privilege, which may be described as a publisher’s copyright, bears date 1492, and was issued by the Venetian Senate to Bernardino de Benaliis.

The fourth class of privilege was that securing to an author the copyright of his own production. Such a privilege differed from modern copyright only in being usually conditional upon or being the result of the action of censors by whom it had to be “approved and privileged,” and on the ground of the narrow limits of term and of territory. It constituted or recognised a property right, but an extremely restricted right, and a very small property. It is certainly curious that (with the exception of the printing monopoly of 1469, which was a privilege only in name) the earliest privilege of which there is record in Italy or in Europe, was one issued to an author for his own production, and which constituted, therefore, a copyright in the modern sense of the term. This privilege was issued as early as 1486, by the Senate of Venice, to Antonio Sabellico, for his Decades Rerum Venetiarum. No term was specified, and the copyright might, therefore, be considered as indefinite or perpetual. The second Venetian privilege, also without term, was that issued in 1492, to Peter of Ravenna, for his Phœnix. This has been referred to by Pütter and by other good authorities, as the first copyright privilege issued in Europe. The discovery of the earlier privilege of Sabellico, is due to Horatio Brown. The third privilege, dating from 1493, and also issued in Venice, constituted a very definite recognition of the existence of literary property, in that it gave to a certain Daniele Barbaro, who had inherited from his deceased brother, Hermolao Barbaro, the manuscript of the work, the control for a term of ten years in the Castigationes Plinii. After this time, the instances of privileges to authors are very few and far between. It is the rule to find them issued to printer-publishers, and except in so far as they covered original editorial labour put into the work by the publishers, these privileges should be described rather as trade monopolies (for very restricted territories), than as copyrights.

While the more enterprising of the printers of Venice, Milan, Rome, and other cities, were, as described, occasionally able to secure privileges also in other Italian States, these privileges did not give any safe assurance of a proportionately extended market. In time of war, all such interstate arrangements lapsed, while even in the times of peace, it was very difficult and often impracticable to secure in any “foreign” territory the enforcement of the protection granted, or the collection of penalties prescribed. Such foreign privileges could, as a rule, be considered rather as a permit or licence to sell the original edition than as an undertaking on the part of a foreign government to prevent the sale of an unauthorised edition. The range of these privileges was, as noted, restricted in territory as well as limited in effectiveness. During the century succeeding printing, it was very seldom indeed that the attempt was made to secure a privilege for an Italian publication for any territory outside of Italy, or for a French publication outside of France, or for a German work outside of Germany. An exception to this limitation was, however, afforded by what were known as papal privileges which, in form at least, conceded to the printers to whom they were issued exclusive control not only within the States of the Church but for all the States of the world that acknowledged the authority of the Church. There was, however, practically no machinery for enforcing the authority of the papal privileges. They gave to the book and to its publisher a certain precedence and advantage with the faithful followers of the Church over editions of the same work which had not the sanction of the papal privilege. I can, however, find record of no instances in which a publisher, whose papal privilege had been infringed, had found it possible to enjoin the publication of a rival edition also offered for sale in Catholic States. The material advantage of a papal privilege was that it carried with it the assurance of the approval of the Church concerning the character of the book. It constituted, namely, evidence that the book had secured the approval of the Church bureau of censorship, and (with an occasional exception) it preserved it from interference on the part of local ecclesiastical censors, whose prejudices were usually more bitter and whose ignorant dread of heretical scholarship was greater, than was the case with the censors associated directly with S. Peter’s.

It was the case with the local as well as with the papal privileges that the protection and encouragement of the author was only a part, and not infrequently the smaller part, of their purpose. It was considered essential by the State no less than by the Church to retain an effective supervision and control over the productions of the Press. Before the privilege could be secured, the work must be submitted to the censors and a favourable report must have been given. The privilege was, therefore, in itself evidence that the work protected by it contained no material considered dangerous by the political or the ecclesiastical authorities of the State. To secure the benefit of even such small measure of property protection as that given under the local privilege for five or ten years, it was, as a rule, necessary that the work should be practically non-committal in character, at least as far as political or theological opinions were concerned.

The history of the Italian publishers shows what a serious burden was from the outset placed upon the production of literature in the peninsula, and how disastrous the effect was upon publishing enterprise and publishing development, by the establishment of machinery for political and ecclesiastical censorship, and by the necessity of awaiting the approval of these censors before carrying to completion publishing undertakings. In Italy, the trouble was in the main with the Church, and, as a rule, with the authorities at Rome rather than with the local ecclesiastics. In many of the cities, the local representatives of the Church to whom was confided the first censorship responsibility, were interested in and sympathised with the spirit of local independence, while they also were in a position to realise somewhat the difficulties caused to the new business of printing and publishing by too strenuous an exercise of censorship authority. This state of things was particularly true in Venice, where, as we have seen, the municipal feeling was very strong, and where educated monks like Paolo Sarpi were ready themselves to act as leaders in the contest to defend against the aggression of the Church what was, practically, the existence of the Press.

In France, where the operations of the Press were, during the first half century of printing, much less important than in Italy, the first privilege was issued in 1503. The official censorship of publications began in 1515, with the accession of Francis I. There are instances during the reign of Louis XII. of certain “permits” or “approvals” being placed upon books, but these were not the result of examination by official censors, and do not appear to have been connected with any restrictions imposed upon the publishers. The Theological Faculty of the Sorbonne succeeded, as has been noted in the record of the Estiennes, in keeping up an active and fairly continuous supervision of, and interference with, the publication of Bibles and of other books claimed to belong to the department of theology. The University claimed the right to supervise and control printing, on the ground that the printers and publishers were the successors of the old-time University scribes, the stationarii and librarii, and were members of the University, and that the printing-press was to be considered as part of the machinery of higher education. There was certainly good foundation for this claim, but, as it proved, the University was not sufficiently strong to maintain its contention.

The importance of this new machinery for influencing public opinion was speedily recognised by the Crown, and as the power of the monarch was increased through the consolidation of the kingdom, the kings succeeded in securing the practical control over the business of printing and selling books. While it was the case, as has been noted in the history of Robert Estienne, that the influence of Francis I. was, on the whole, exercised to defend the Press against the oppression of the theologians, the authority of Henry II. and of his successors was, as a rule, exercised against the more liberal policy of the University and in favour of a very close and frequently unduly burdensome supervision of publishing undertakings. After the accession of Henry II. the regulations concerning the Press, or at least that portion of the Press regulations which were of essential importance, emanate from the Crown. It is the royal chancellor, or his representative, who decides what books shall receive the official permit, and what the term of privilege is to be. This term, beginning in the reign of Francis with five years, was gradually extended until, with the routine renewal, the average length by the reign of Henry IV. was twenty years. The main feature in the history of the Press in France is the authority and the interference of the Crown, as in Italy it had been the exacting censorship of the Church.

In Germany, the earlier printer-publishers found themselves, at least up to the time of the Reformation, comparatively free from the interference of the Church. For the sixty-eight years between the date of Gutenberg’s printing-press and that of the Diet of Augsburg, the printer-publishers were left free to print Bibles, editions of the Fathers with new notes and commentaries, and such contemporary writings as were found available (the list of these last being in any case but inconsiderable), without interference from censors of the Church and without any attempt at supervision or control on the part of municipal, state, or imperial authorities. The immediate and active use of the printing-press made by the Lutherans brought about some change in this situation; a system of censorship was at once established by the Church, and its authority was confirmed by the Emperor. A sweeping prohibition was issued not only against all Lutheran writings, but against all books, theological or other, emanating from Protestants. In some of the cities which were most faithful to the Catholic cause, these imperial-ecclesiastical edicts were confirmed by the municipalities and attempts were made to enforce their provisions upon the printing-presses and the bookshops within the municipal territories. A few years later, as in North Germany the cause of the Protestants organised and strengthened itself, the rulers of certain Protestant States undertook, at the instance of Luther and his associates, to establish censorship from a Protestant, or rather from a Lutheran standpoint. The printing and the sale of Romanist books on the one hand, and of Anabaptist and Zwinglian heresies on the other, were prohibited, and the printing of any books was permitted only after the approval of the official censors had been given.

Notwithstanding, however, this long series of prohibitions, censorships, and supervisory edicts, imperial, state, and municipal, the work of the German printer-publishers was interfered with to a comparatively small extent. The issuing of edicts, regulations, and proclamations, satisfied the official conscience and met the immediate requirements of the authorities of Rome on the one hand, and of the militant Protestants on the other.

They amounted, however, as far as the restriction of the Press was concerned, to very little more than waste paper. The machinery for their enforcement was never adequate, and the continued personal interest in carrying out regulations and in enforcing penalties which interfered with so important a German industry as that of printing, appears never to have been keen. The political supervision or censorship was no more effective or consistent than the ecclesiastical. From time to time some book would be prohibited because it contained material disrespectful or antagonistic to emperor, prince, or duke; but the book prohibited in Augsburg could easily be printed in Nuremberg, and the work interfered with in Leipzig found prompt distribution from Wittenberg. Germany was too manifold, and the centres of intellectual activity and of publishing enterprise were too numerous, to make it practicable to carry out for the whole realm any general censorship supervision or restriction. The attempt might be compared to the experiment of blocking up in a volcanic region one or two of the more active vents, with the certainty that the exploding forces would immediately find new outlets. Individual undertakings might be interfered with, but it was impossible to block the operations of the printing-presses of Germany. In this respect the printer-publishers of Germany had a material advantage over those of Paris, whose operations were subjected to the supervision and to the authority (or rather, to the conflicting authorities) of the University (and particularly of the Theological Faculty of the Sorbonne), of the Parliament of Paris, and of the Crown.

The division of their territory and the lack of central authority placed the Germans, however, under serious disadvantages in other ways. While, in France, a royal privilege covered the territory of the entire kingdom,[186] the German privilege was issued for a principality, an electorate, a duchy, or a city. The book protected for Electoral Saxony, was open to appropriation in Prussia or the Palatinate, or, indeed, in the adjoining Duchy of Saxony. It was also the case that the German publishers were powerless to protect themselves against the piratical competition of Basel and Geneva on the one hand, and of Antwerp and Amsterdam on the other. I do not forget that, in addition to the local privileges, imperial privileges were from time to time secured from the Chancellor at Vienna, which, in form at least, protected a book throughout the entire realm of “the Holy Roman Empire,” but authorities like Pütter and Kapp are at one in the conclusion that these privileges were entirely disregarded by the reprinters and gave practically no property protection for literary productions. An exception to this should be made for the imperial cities (Reichsstädte), in which an imperial privilege did carry with it some authority.[187]

In fact, it occasionally happened that the reprinters who planned to invade with an unauthorised edition the markets of Frankfort or Nuremberg, were able to secure an imperial privilege, and by means of this to give some legal colour to their undertaking. The difficulty was not that the imperial Chancellor desired to interfere with legitimate publishing undertakings, but that it was considered desirable to emphasise the control of the imperial authority over the work of the printing-press, and the contention was not infrequently maintained in Vienna that no books should be placed in the market without the approval and the permit of the Emperor. It was further the case that no trustworthy registry appears to have been preserved in Vienna during the first century of printing, so that it was quite possible for duplicate privileges to be issued to competing printers for the same book and for the same term. No attempt was made to keep a record in Vienna of the privileges issued in the different German States, and as a result there was, of course, nothing to prevent conflicting claims of ownership concerning a literary production, and conflicts between the imperial and local authorities as to their respective powers in the business. The lack of any system for the interchange of copyright entries, and the incompleteness and lack of accuracy of the registers of any one State was also the cause of frequent conflicts and difficulties between the publishers of different cities, difficulties which usually came to a head when the competing editions, each duly privileged by some authority, came to be offered for sale at the semi-annual Fair.

With this utter confusion as to the law of copyright (if such a term as law can properly be applied to this medley of conflicting regulations), and with no central authority to apply to from which any adequate help could be secured, the printer-publishers of Germany were obliged to take the matter into their own hands. No agreements or regulations that they might frame could serve to protect their books against the unauthorised competition of Lyons, Basel, Antwerp, or Amsterdam. They were even not in a position to enforce enactments against the piratically inclined members of the trade within the territory of Germany. They could, however, frame such a compact as should guide the business policy and practice of the leading members of their own fraternity, while it also proved possible, through the influence of the business pressure that these leading publishers were in a position to bring to bear, to compel the majority of the printers and traders to respect and conform to the regulations decided upon by the organisation of the whole trade. The fact that the German book-trade was the first in Europe to bring about an effective organisation of its own business, an organisation which, with the modifications and developments called for by the changing conditions of trade, is in 1896 still more complete, comprehensive, and effective than it was in 1503, was doubtless largely due to the peculiar disadvantages under which the work of the German printer-publishers had been begun. If there was to be in Germany any property in literary production, if there was to be any assured return for literary labour and for publishing risk and outlay, it was necessary that some authority should be constituted which should act for the entire German realm and which should make up for the absence in that realm of any uniform or consistent system of law. This authority was constituted, and this requirement was met by the organisation of the German book-trade. This organisation was by no means strong enough altogether to prevent unauthorised reprinting. Such reprinting went on in various parts of Germany until the close of the eighteenth century, and caused no little friction, irritation, and contention between the different book-making centres; and to the extent to which it prevailed, it lessened also, of necessity, the prospect of profitable returns from publishing ventures, and lessened also the amount of the remuneration that it was possible to secure for authors and for editors for their contribution to such undertakings. When, however, the leading publishers throughout the empire had arrived at an agreement to respect each other’s publishing undertakings, the seriousness of unauthorised competition and the risk of the appropriation by reprinters of texts the cost of the reproduction of which had been borne by others, were very much lessened. It proved also practicable through the machinery of the Guild, which originated with the Frankfort Fair and which was brought to its final organisation in Leipzig, to bring pressure to bear upon such of the publishers, printers, and booksellers as had in the first place not been disposed to accept the regulations of the Guild. When it was made impracticable to sell at the book-fairs or through the central channels of distribution in Frankfort or in Leipzig, editions which had been classed as “unauthorised” or “piratical,” the possibility of securing profit in the production of such editions was very much diminished, so that their number decreased from year to year.

This satisfactory result, to be sure, belongs to a later period than that considered in the present study. No such final organisation of the book-trade had been completed or perfected before the beginning of the eighteenth century, but in the institution of the Fair at Frankfort and in regulations and arrangements arrived at between the leading printer-publishers who twice a year came together at this Fair, the later organisation was foreshadowed and the preliminary steps towards it were taken.

The immediate effect of the Thirty Years’ War was, of necessity, to undermine and almost put a stop to literary production and publishing undertakings in Germany. Cities like Magdeburg, Wittenberg, Leipzig, Münster, and others where the production of books by the Protestant leaders had been active, found themselves the centres of the campaigns between the Swedes and the Imperialists. Frankfort, which, in certain respects, suffered much less directly from the operations of war, was, during considerable portions of the time, so far isolated by the contesting armies, that its connection with the usual channels of book distribution could not be kept open. When the means of transportation were still available and the publishers were able to reach Frankfort with their samples, the booksellers were so far discouraged as to the prospect of making sales in their home towns that many of them did not think the journey to Frankfort worth the risk and the outlay. During the whole thirty years of the war, the Fair was continued, at least in form, but in not a few of those years it was merely a form.

As one result, therefore, of the deplorable condition of Germany, the printer-publishers of Holland secured a much larger proportion of the book-trade of Europe. Amsterdam, Leyden, and Utrecht were all outside of the campaigning operations and were also favourably situated for reaching the markets of Europe. In addition to these favourable political and physical conditions, the Dutch printers had made very noteworthy advances in the art of typography, and the Dutch and Belgian illustrators had from the beginning done much better work than was as yet known in Germany. The high standard of the scholarship of the Universities of Leyden and of Amsterdam, the fact that Holland was, during the first half of the seventeenth century, outside of the contests that were absorbing many of the European States, and the further fact that the Protestant Republic had freed itself altogether from the trammels of the censorship of Rome and had refused to replace these with the equally burdensome censorship of Geneva, had the effect of attracting to Holland scholarly thinkers and writers from various parts of Europe.

With scholarly writers and material thus provided, with the most fully developed typographical facilities that Europe had as yet known, and with the widest possible commercial connections, the printer-publishers of Holland had at their command during the larger portion of this century, all the factors requisite for the building up of great publishing interests. They utilised these facilities to good purpose, and by the close of the Thirty Years’ War they had definitely taken from Italy, France, and Germany the leadership in the enterprise, importance, and high standard of their publishing undertakings.

The chapter on the Elzevirs, who can be accepted as types of the publishers of Holland during this period of the supremacy of Dutch publishing, will have shown that the Republic did not during this period make any important contributions to, or precedents for, any system for the protection of literary property. The territory of the Republic was limited and the number of cities in which important books were produced were but few. While there does not seem to have been any formal compact, the leading publishers had, however, evidently arrived at some understanding between themselves to respect each other’s undertakings. Privileges were secured from the governments of the individual States, or sometimes from the central authority of the Republic, but there was evidently no uniformity of system in regard to these and they do not appear to have been depended upon to any material extent for the protection of the books. The purpose in securing them seems to have been rather to give evidence that the undertaking had received the sanction or approval of the representatives selected by the States for the purpose, representatives who were usually scholars from the universities.

I have not been able to examine in detail the records of the Dutch publishers of the period; but I have not found in the history of the Elzevirs, whose undertakings were more considerable for a time than those of all their contemporaries together, any reference to the enforcement of a Dutch privilege against a Dutch reprinter charged with the infringement of the same. The records of the Elzevirs give, however, very considerable evidence concerning the extent to which the Dutch publishers appropriated, according to their own convenience, the undertakings of their competitors in Germany, Italy, and France. Of these appropriators, the Elzevirs were, as pointed out, the chief offenders, and they were, during the larger portion of the period in question, the only Dutch publishers who were in a position through their widespread connections to reach with their unauthorised reprints the markets of the world. To the extent to which they made sales outside of Holland, the value of the property rights of the original publishers of Nuremberg, Basel, Venice, or Paris, was diminished.

While the Elzevirs had, therefore, to an extent previously unknown in the history of publishing, made of piracy a fine art and a pursuit of world-wide commercial importance, it seems probable, as before suggested, that, in giving tangible evidence that literary distribution could not be limited by political boundaries, and that literary producers were addressing themselves to the readers, not of their own State, smaller or greater, but of the civilised world, they were preparing the way for a European recognition of the nature of literary production and of the equity and necessity of protecting literary producers. The Elzevirs were able in this manner to render an important service in preparing Europe for the system of European copyright which was to take the place of limited local privileges and state enactments.

One circumstance in connection with literary work and book-production of the sixteenth and seventeenth centuries furthered very largely the facility for unauthorised competition and the work of piratical reprinters. This was the fact that, as far as literature and learning were concerned, there was but one language for Europe. In the Universities, in the workroom of the scholar, in the composing-room of the printing-office, we find that, for nineteen-twentieths of the books that were being put into shape, the text was Latin. The universality of the language in which literature was preserved and learning was maintained, a universality that was the essential characteristic of the manuscript period and of the work of the earlier universities during the same period, was in large part maintained during the first two centuries of printing. In the department of theology, to which belong probably the larger proportion of the books of the earlier publishers, all the works were in Latin. The division next in importance, and possibly even greater in extent, comprised the series of reproductions of the texts of the authors of classic times. For these authors, both Latin and Greek, the notes and the commentaries were, as a rule, given in Latin. The works in jurisprudence, works which were in the main expositions of the old Roman law, were, with hardly an exception, printed in Latin text, and the same was the case with works of medicine and natural science.

The fact that in all the great universities of Europe, during these same two centuries, the larger proportion of the lectures in these several departments were given in Latin, served, of course, to maintain and to extend this universality of learning, of literature, and of science, and to build up a body of scholars who belonged not to any one State, least of all possibly to the “country of origin,” but to Europe as a whole, to the world of literature and of learning. The detail of smallest importance that occurs in thinking of the career of a Casaubon, a Scaliger, or an Erasmus, is the place of his birth. Even the places selected by such a scholar for a sojourn of greater or less length, are of much smaller moment in fixing his place or his influence in the history of his generation or of the world, than the particular school of thought with which he associated himself, or the special undertakings to which he gave his coöperation. It is interesting to note, particularly in connection with the many difficulties in the way of transportation, how largely the scholars of that day lived in their correspondence. Men like Scaliger and Erasmus, sojourning at times in isolated towns and with but a small immediate circle, impressed themselves on the thought of Europe through their letters to their friends. The chapter on Erasmus emphasises the fact that, apart even from the chief divisions of university work under which the publications of the times were classified, a writer of the sixteenth century who had a work of literature, and even of light literature, to present to the world, was able through the use of Latin to reach at once all the cultivated communities. Such books as the Praise of Folly and the Colloquies of Erasmus, or the Ship of Fools of Brandt, became, within a wonderfully short time after their publication, the talk of society in all circles and in all cities of Europe. I do not overlook the fact that during the latter part of the period now in question, there came to be an increasing proportion of printing in the vernacular. From the beginning of printing in the Low Countries, popular romances and legends had been issued in French, and the same practice was followed by the printers of Lyons, who gave special attention to what we should call popular publishing. Various translations appeared shortly after the publication of the Latin originals of the Praise of Folly and of The Ship of Fools. Works like those of Luther, while issued originally, or at least simultaneously, in Latin, for the purpose of influencing the opinion of the scholars of Europe and of his own monastic associates, were put almost at once into German, because their special purpose was to make clear to Luther’s own community, and to the less educated portion of such community, the truths that seemed to him essential, concerning the relations of man to his Creator and concerning the usurpation of the Roman Church, which had undertaken to control those relations. These exceptions do not, however, militate against the substantial accuracy of the general statement that Latin as the language of literature was the language of the printing-office and of publishing undertakings as a whole.

It seems to me probable that if the practice had continued of retaining one literary language for Europe, the possibility of securing one system for controlling and protecting literary production throughout Europe would have been very much furthered, and the date of interstate European copyright might have been advanced by a century or more. There seemed at one time to be a possibility that with the decline of the general use of Latin, the language of France would be accepted by the writers of Europe as a convenient form for literature which was international in its character and which was addressed to the whole civilised world. Such general or international use of French proved, however, but a passing phase or episode in literary history, a phase which probably saw its culmination during the reign of Frederic the Great. The revival of the feeling of nationality which accompanied or resulted from the completion of the organisation of the great States of Europe, brought with it a revival of patriotic interest in the maintenance of the national language for the literature of the nation. As a result, we find a revival, or rather a development, of German; the writers of Italy bringing their books before the world no longer in Latin but in Italian, those of England accepting for their medium their home language, and those of France finding the use of the literary language which they had hoped to see adopted by Europe as a whole, restricted to French territory and to one or two adjoining States. It is only in countries like Belgium and Switzerland which possess no national tongue, or like Holland, the home language of which has too limited a circle of readers, or like Russia, whose language lies outside of literary civilisation, that we find any continuity in the practice of bringing books into print in French, or occasionally in Latin.

With this development of national literature, written in the tongue of the country of origin, and the direct availability of which is in the main limited to the readers of such country, there comes, for a time at least, a retrogression in the tendency which had been gaining strength, to consider Europe, as far as its literature was concerned, as one community. The domestic laws for the protection of literary property begin to take shape, and to secure for such property within the limits of the State in which it originated a better assured and a more lasting protection. At the same time, however, that these domestic copyright laws are being enacted, we find an increase in the impression that the authors outside of the State have no rights calling for consideration and that the interests of the home publishers and of the home readers call for and justify the largest measure of appropriation that seems convenient of the productions of these foreign authors in the form of translations.

The development of public opinion to such condition of enlightenment as assured the recognition of literary production as property, irrespective of political boundaries and irrespective also of the particular form of language in which it might appear in print, came but slowly. This education and development on the part of the community on the one hand, and on that of authors and their publishers on the other, belong, of course, to a later period than that here under consideration. It was not, in fact, until the time of the discussions in England which resulted from the famous statute of 1710 (discussions which began in 1769 in connection with the suit of Millar vs. Taylor) that we find any intelligent consideration given to the principles involved and to the interests at stake in the definition and the protection of literary property. The first general discussion in France concerning the rights of literary producers and their relations to the community, was due to the Convention of 1793.

In Germany, as before indicated, the feebleness of the imperial authority and the lack of any real unity or harmony of imperial action, had the result of throwing the consideration of such a matter as copyright back upon the local legislatures of the State. As a consequence, the framing of any consistent legislation, giving such recognition to literary property as had been secured under the monarchy in England and the revolutionary republic in France, was delayed in Germany until 1837, when the Act was passed in Prussia which formed the model for the similar Acts passed shortly thereafter by the legislatures of a number of the other States of the empire.

If Germany was, in connection with the special difficulties attending the delay in its reorganisation as a nation, somewhat slow in the recognition given to the principles of copyright, this delay has, as far as the interest of literary producers and of copyright owners are concerned, been more than offset by the admirable service rendered through the organisation, already referred to, of the German book-trade. To Germany also belongs the credit of inaugurating the system of interstate copyright that gave the precedents for the international copyright conventions, and that served as the suggestion and the precursor of the European system of recognition and protection of literary property instituted in 1887 by the Convention of Berne.

It was France, however, that took the initiative in calling this Convention, and it was the members of the Association of French Authors and Artists who had the larger share of the responsibility for planning the policy and shaping the work of the Convention. The result of these public-spirited labours has been to secure, for the first time in history, an assured recognition and protection for literary and artistic property.

It is evident from this brief summary that, by the close of the seventeenth century, the term fixed for the completion of the present study, the conception of literary property had not reached any very advanced stage of development.

The diverse theories which came into discussion in the latter part of the eighteenth century, in England in 1769 and 1774, in France in 1793, and in Germany somewhat later, may be briefly summarised as follows:

1st. Property in an intellectual conception or creation is fully analogous to property in a material creation, and implies as comprehensive and unlimited a control for the production of the labour of the mind as that conceded by the community to the production of the labour of the hand.

2d. Intellectual property depends upon an individual agreement or convention to which each person enjoying the use of a copy of a literary (or artistic) production makes himself a party.

3d. Property in an intellectual production depends upon the natural or personal rights of the author, who through unauthorised appropriations, would be caused an injury or tort.

4th. Property in an intellectual production is the creation of statute, and is subject to limitations depending not upon any natural rights of the producer, but upon the convenience or advantage of the community.

Of these several theories or conceptions, it is the fourth which represents in substance the survival of the discussions of two centuries, and which has formed the basis of the copyright legislation of both Europe and America.

It is probably not yet practicable to determine whether such survival represents the survival of the fittest. I am inclined to think that the actual status of an intellectual production and the relation of its producer to the community would be more accurately expressed by a combination of the first and fourth of these theories. We may assume in the first place that the right of the producer to the complete and unrestricted control of an intellectual production has been accepted as no less binding upon the community than the rights of the producers of material property.

Secondly, we may admit that an intellectual production is from its special character much more exposed to appropriation or invasion than is material property, and that an adequate protection of the property-rights of a literary producer can be secured only by means of a very considerable measure of special legislation, and that even this legislation would often prove inadequate for the purpose unless it were seconded or supported by public opinion and by the good will of the community.

Thirdly, we may assume that as a consideration for this service of exceptional legislation and for this special coöperation of the community in aiding in the protection of his very “difficult” property, the creator of an intellectual production is willing to sacrifice in favour of the community a portion of his unrestricted ownership.

An application of such an hypothesis of a practical adjustment of the rights and requirements of the author on the one hand and the interests of the community on the other, is afforded by the record of copyright legislation in France. The long series of discussions, which, beginning in 1793, were continued until 1867, resulted in the conclusion that the claim of the author to a copyright in perpetuity could in theory not be refuted. The legislation with which these discussions were terminated, did not, however, carry this conclusion to its logical result. The term of copyright was fixed not for perpetuity but for the life of the author and fifty years thereafter. The author’s property-right in his creations was, namely, protected for himself, for his children, and for his grandchildren, but after these natural family interests had been provided for, consideration was given to the interests of the community at large, and the literary production was taken into the public domain.

There has been, I contend, in this copyright arrangement arrived at in France, something in the nature of a compact between the author and the State, although I do not find such a view presented in the discussions of the time. It seems to me that such a compact is not only equitable but logical,—and that it secures a satisfactory solution for the vexed question concerning copyright in perpetuity. The author asks for a larger measure of protective service from the State than that required by the owner of property like a house (or, for that matter, of any other class of property), and he is willing in return for such special service, if the results of his labours may, by adequate legislation, be assured for his immediate descendants, to surrender to the community the property-right in perpetuity which under his inherent right and at common law was as fully vested in him as is the title of a house in the man who has produced it.

The consideration of these several theories or conceptions does not properly belong to the history of literary production prior to the beginning of the eighteenth century. I make reference to them here simply because they represent the conclusions toward which were gradually developed the more limited conceptions arrived at in the earlier centuries, the centuries whose literary activities and conditions I have attempted in these volumes to describe.