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In fupport of the common law-right, Mr. Juftice Willes urged, that the copy of a book, which had been used for ages as a term to fignify the fole right of printing and felling, fhews this fpecies of property to have been long known; quoted several decrees of the ftar-chamber, proclamations, &c. to prove that pirating copies was an abuse noticed in general terms; and obferved, that no licence could be obtained to print another man's copy, because the thing was immoral and unjuft.
Judge Blackstone fhowed, from many entries in the books of the Stationers Company, from 1558 downwards; and from decrees of the star-chamber, and feveral ordinances made during the long parliament, that it was continually taken for granted that copy-right exifted. The act of 13, 14 Car. 2. prohibits printing without confent of the owner. Several cafes which arofe after this time, in which it was difputed whether particular works belonged to the author or the king, prove that copy-right was then a well known claim.
The Court of Chancery has always proceeded upon the idea of a common law-right; neither requiring, in order to obtain relief, that the book fhould be entered, nor that the action fhould be brought within three months after the offence; both which are neceffary on the act of Q Anne. A bill in Chancery is not given as the remedy in the act; the whole jurifdiction exercised by the Court of Chancery against pirates of copies, therefore fuppofes a precedent property in common law. All the injunctions granted and acquiefced in, prove that this Court has proceeded upon the ground of a common law-right. There are copies of which the king is proprietor, independent of every prerogative idea; these are held by common law-right, on the fame footing with private copy-right.-The publishing of an original or tranfcripi, given or lent to a man to read, is a violation of the author's common law-right to the copy, and has often, been fo determined. There is then a time when, without any pofitive ftatute, an author bas a legal property in the copy of his own work. The author's fale of copies of his work does not neceffarily lay open this copy; if fo, crown copies would become open upon publication: the contrary of which is fettled.
The act of the eighth of Q. Anne could not be meant to take away copy-right, or declare there was no fuch property at the common law; because the preamble speaks of detriment to authors by the liberty which had been taken to reprint their works without their confent, which could have been no injury if there had been no prior right in authors; and because it has this proviso to save the ancient common law: "Provided that "nothing in this act contained fhall extend, or be conftrued to "extend, either to prejudice or confirm any right that the faid G 2
univerfities, or any of them, or any perfon or perfons have, or "claim to have, to the printing or reprinting any book or "copy already printed, or hereafter to be printed."
Mr. Juftice ASTON eftablifhed the right of copy, on the fundamental principles of property, as laid down by Woolafton in his Religion of Nature. Property includes the fole right of ufing and difpofing of any thing. A partial difpofition is not to be carried beyond the intent of the proprietor. The true definition of the object of property is, not that which may be. fastened on, but that which is capable of being diftinguished, Literary property agrees with this definition.
It is fettled and admitted, and is not now controverted, "that literary compofitions in their original ftate, and the incorporeal right of the publication of them, are the exclufive property of the author; that they may ever be retained fo, and that if they are ravished from him before publication, trover or trefpafs lies." Now, how are the damages in this cafe to be eftimated by the value of the ink and paper? or by the profits which the work would probably have produced the author by publication? Certainly the latter. But what would be the value of a work to the author, if after publication it is given to the public, and his private property in it no longer exifts? Publication is the only means to render this confeffed property ufeful to mankind, and profitable to the owner: now, to conftrue this neceflary act, as deftructive at once of the author's confeffed property against his exprefs will, feems harsh and unreafonable. With refpect to thofe things which are the fruits of human industry, it cannot be doubted but that every one must preferve his right to them till he makes an open renunciation, The act of publication is no renunciation. Selling the property in the work, and felling one of the copies, cannot mean the fame thing. Can it be conceived that in purchafing a literary compofition, the purchafer ever thought he bought the right to be the printer and feller of that specific work? The buyer might as truly claim the merit of the compofition by his purchase, as the ight of multiplying copies.
The common law is founded on the law of nature and reafon. Where any wrong or damage is done to a man it gives him a remedy. The remedy by action upon the cafe is fuited to every wrong and grievance which the fubject may fuffer from a fpecial invafion of his right. The invafion of literary property is the proper fubject of fuch an action: for no property is more emphatically a man's own than his literary works, or more incapable of being mistaken. That the author's fole right of publishing his work is a known and acknowledged right, appears from the ancient legal ufe of the technical term, py of a book; from various citations from hiftory, decrees,
proclamations, ordinances, and ftatutes; from the concurrent fenfe of judges, to be collected from their expreffions in cafes at common law; and from the uniform conduct of the Court of Chancery. The ftatute of Q. Anne treats the printing books without the confent of the author as an abufe: it recognizes the common law-right by adopting the technical term, the copy of a book; it was obtained at the folicitation of book fellers, &c. not from any doubt of legal copy-right, but because the common law remedy was inadequate, only inflicting penalties on the offender. The provifo (before recited) is general, and feems to be the effect of extraordinary caution, that the rights of authors at common law might not be affected. The Court of Chancery has conftantly granted injunctions to protect this right on fuppofition of its being a legal one. No injunction was ever refufed in Chancery, upon the common law-right, till the cafe of Tonfon v. Collins, which was dropped from a fuppofition of collufion.
Mr. Juftice YATES gave a different opinion. It is granted that a literary compofition is in the fole dominion of the author, while it is in manufcript: the manufcript is the object only of his own labour, and is capable of a fole right of poffeffion; but this is not the cafe with refpect to his ideas. No poffeffion can be taken, or any act of occupancy allerted on mere ideas. If an author has a property in his ideas, it must be from the time they occur to him; therefore if another man fhould afterwards have the fame ideas, he must not prefume to publifh them; for they were pre-occupied, and become private property.
Every man is entitled to the fruits of his own labour; but he must not expect that these fruits shall be eternal; that he is to monopolize them to infinity. An author has certainly a right to a reward; but it doth not from thence follow that this reward is never to have an end. He has little cause to complain of injuftice, after he has enjoyed a monopoly for twenty-eight years, and the manufcript ftill remains his own property. Shall an author's claim continue without limitation, and for ever reftrain all the reft of mankind from their natural rights by an endless monopoly?
Whatever is the object of property must be visible; have bounds to define it, and marks to diftinguifh it. But the property here claimed is all ideal; its exiftence is in the mind alone; fafe and invulnerable from its own immateriality. No right can exist without a substance to retain it, and to which it is confined it would otherwise be a right without an existence. If it be faid that it is not the ideas, but the compofition which is the principal object of property; this cannot continue the author's after publication. Nothing can be an object of property, which is not capable of a fole and exclufive enjoyment.
But how can an author, after publishing his work confine it to himself? The fentiments, the compofition are made public, and every purchaser becomes as fully poffeffed of them as the author himself ever was. The act of publication is therefore virtually and neceffarily a gift to the public. The author forefees this confequence, and therefore must be deemed to intend it. The purchaser becomes poffeffed of the full property of the work; he enters into no ftipulations to limit the use of it; the publisher required none: he may therefore make what use he pleases of it: without this he would neither be at liberty to lend, nor to transcribe, the book he has purchased. A man cannot retain what he parts with. If the author will voluntarily let the bird fly, his property is gone; and it will be in vain for him to fay he meant to retain what is abfolutely flown and gone. Ideas are incapable of any indicia, or diftinguishing marks, by which the proprietor may indicate them to be his own they admit of no actual or vifible poffeffion, and confequently are capable of no signs or tokens of abandonment. This claim is then by no means warranted by the general principles of property.
With refpect to the fecond general ground, the fuppofed ufage and law of this kingdom: the ufage of purchafing from authors perpetual copy-right is not fuch as can conftitute a legal cuftom, because it is not general, but appears only in a few private acts of individuals; and because it hath not exifted immemorially. The bye-laws of the Stationers Company are certainly no evidence at all of common law-right, for they are confined to the members of that Company: they are nothing more than a corporate regulation to fecure rights fubfifting by the mere ufage of the Company. No ufage of law can be inferred from particular grants made to the Stationers Company. The proceedings in the tyrannical and illegal court of Star-chamber cannot be adduced as authorities in the prefent queftion. Their decrees did not ferve for the protection of any original independent right of authors, but of the rights of the Stationers Company, and of fuch as had patents from the crown. The ordinances made by the Houfes of Parliament, except fo far as relates to the Stationers Company, were calculated for political ends, and do not state or protect the copy-right of authors. The claufes in the ftatute of 13, 14 Car. 2. c. 33. which has been reprefented as containing a recognition of copy-right, are only defigned to fave the privileges of the universities, the Stationers Company, and fuch as had grants from the crown; and the whole was intended to reftrain improper political publications. The injunctions of the Court of Chancery are not conclufive upon a court of common law. The courts of law never apply to a court of equity for their decifion in a common law
queftion. Their decifion in fuch queftions as thefe is only a temporary fufpenfion till the right fhall be determined.
The right of the crown in copy is not prerogative, but arifes from the neceffity there is that government fhould fuperintend fuch publications as immediately refpect the established religion or political conftitution. There is no inftance of the crown's pretending to any right in private compofitions. The king's property in copies will not therefore apply to the cafe of an
Ideas are not capable of being feized, or forfeited, which must always be the cafe with property. The right in queftion cannot be a fpecial right to a particular intereft or privilege; for by the law there can be no fpecial right of perpetual duration but fuch as refpect some kind of inheritance. The whole of this right is a mere right of action: but it is a maxim in common law, that things in action are not affignable.
In the ftatute of Q. Anne, the faving claufe feems to have no view to any general claim, but is only pointed at the printing and reprinting particular books; it relates to the university privileges, and other patent rights. The title, which declares that the act vefts the copy in the author for a certain time, plainly implies that before the act he had no fuch right. If authors had a common law right this act would have been an abridgment of their rights, not an encouragement.
It is not to be fuppofed that authors are fo avaricious and mercenary, that nothing but an abfolute perpetual monopoly will juftify them. Such a monopoly would be injurious to li terature, by putting it in the power of a writer totally to fupprefs his work, or to fix an exorbitant price upon his books: it would lay unreasonable reftraints upon the lawful employments of printing and bookfelling: it would open the door for perpetual litigations.
Lord MANSFIELD, after adopting the two firft arguments, obferved that from premifes either exprefsly admitted, or which cannot be denied, conclufions followed in his opinion decifive upon all the objections raifed to the property of an author in the copy of his own work. It is admitted that by the common law an author is entitled to the copy of his own work, until it has been publifhed. Now this property, thus abridged, is equally an incorporeal right to print a fet of ideas, communicated in a fet of words and fentences; it is equally detached from the manufcript, or any other phyfical existence: it is equally incapable of being violated by a crime indictable, or of being the fubject of an action of detinue, trover, or trefpafs: no transfer of the manufcript, though it gives a power to print and publish, can be conftrued into a conveyance of the copy, without the author's exprefs confent. The property of the copy G 4