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before publication may defcend, even though neither the author nor his reprefentatives fhould have any manufcript of the work. All the metaphyfical fubtleties from the nature of this property, may be equally objected to the right of copy before publication as afterwards. Whatever difficulty attends the proof of copy-right at common law in the one cafe, occurs equally in the other. It may be objected to both that the ufage is not immemorial, for printing was not introduced till about 1419, The true ground on which the protection of the copy refts before publication is this, that it is agreeable to the principles of right and wrong, convenience and policy, and therefore to the common law.
But the fame reafons hold after publication: protection is neceffary to give an author the profit of his work; without this, he cannot be master of the use of his own name; he has no controul over the correctness of his own work: he cannot prevent additions, retract errors, or cancel a faulty edition. There is no peculiar objection to the property after publication, except that this neceffarily makes the work common; but a transfer of the printed book does not more neceffarily imply a transfer of the copy, than a transfer of the manufcript before printing. The whole then muft finally refolve into this queftion, whether it is agreeable to natural principles, moral juftice, and fitnefs, to allow the author the copy after publication as well as before. The general confent of this kingdom for ages is on the affirmative fide. The legislative authority has taken it for granted, The injunctions in Chancery have always fuppofed the legal property to be clear. Crown copies are civil property, arifing from the king's right of original publication; What other right can he have to the copy of the Latin Grammar? Whatever the common law fays of property in the king's cafe, must therefore hold conclufively with regard to authors. The act of Q. Anne proceeds upon the ground of the right of property having been violated. The provifo is general, and there is not a word about patents in the whole act.
On thefe grounds Lord MANSFIELD gave his opinion that judgment be for the plaintiff.
Concerning the argument against perpetual literary property taken from the refemblance between this kind of property and that in ufeful mechanical inventions, Mr. Juftice BLACKSTONE obferved, that the refemblance only holds in this, that the knowledge which is acquired from a book is free, as that from the fale of any machine; but that the literary compofition is in itfelf a diftinct object of property, which is not conveyed by the fale of the book.-Mr. Juftice ASTON remarked, that the dif ference in the two cafes lies here, that the machine made in imitation or refemblance of another was a different work in
fubstance, materials, labour, and expence, in which the maker of the original machine cannot claim any property; whereas the reprinted book is the very fame fubftance, the thoughts and language being the effential part, and the paper, ink, and type only the means of making the work public: the imitated ma chine is a different work; the literary compofition the fame. On the other hand, Mr. Juftice YATES obferved, that examples might be mentioned of as great exertion, and as meritorious la bour, in mechanical inventions as in literary productions, and that the inventor might as juftly complain of iniquitous treatment, if another perfon appropriated the profits of his invention, as the author.
We have been the more particular in our account of the fe. veral arguments urged in this queftion, because the work be. fore us bears greater marks of exactnefs and fidelity than most publications of this kind, and because we fhall hereby the more eafily diftinguish what is new and forcible from what is merely repetition or declamation in the enfuing articles. We shall dwell no longer on the prefent work than juft to fuggeft a few hints relative to Judge Yates's laboured attack upon copy-tight.
Almost all his reafonings proceed upon definitions of property and of copy-right which will not be allowed. If the maxim be juft, that nothing can be an object of property which has not a corporeal fubftance, then no man can truly fay his foul is his own: he has no property in the knowledge he has gained, the title he inherits from his ancestors, or the good name he has acquired: flander only robs him of a non-entity, and therefore ought not to be punifhed by law. Every man's ideas are doubtlets his own, and not the less fo because another perfon may have happened to fall into the fame train of thinking with himfelf. But this is not the property which an author claims; it is a property in his literary compofition, the iden tity of which confifts in the fame thoughts ranged in the fame order, and expreffed in the fame words. This object of property is not indeed vifible or tangible, but it is not therefore the jefs real. A man who has compofed a poem, though he has never committed it to writing, has a clear idea of the identity of the work, and juftly calls it his own. If property can arife from labour, the poem is his, and the copy-right really exifts, though it is not vifible, nor has any fubftance to retain it. When he fells copies of his work, he does not neceffarily part with his original right of multiplying copies: this being a thing entirely diftinct from a printed copy, cannot be given up without his confent; and this confent ought not to be taken for granted without fome explicit declaration. When an author fends his work into the world, he gives the purchaser a natural power to reprint it, and in this fenfe fuffers the bird to escape;
but this cannot imply a right of reprinting, unlefs fuch a premium is given him, as he fhall acknowledge to be a fufficient compenfation for the profits arifing from the exclufive fale of his work. All that is advanced concerning an author's claim to an adequate recompence is trifling, till it be made apparent that he has no property in his works after publication. If he has a right of fale arifing from property, why should he ask a reward; or why fhould the ufe of this right be branded with the opprobrious appellation of a monopoly? What is urged against the right at common law, is fufficiently refuted in the arguments of the other judges, and particularly Lord Mansfield.
On the whole, as far as we can judge from what has already been fuggefted, there,is fufficient ground to conclude with Judge ASTON, that " upon every principle of reafon, natural juftice, morality, and common law; upon the evidence of the long received opinion of this property, appearing in ancient proceedings and law cafes; upon the clear fenfe of the legiflature, and the opinions of the greateft lawyers of their time in the Court of Chancery fince the statute of Q. Anne, the right of an author to the copy of his works appears to be well founded."
ART. II. The Decifion of the Court of Seffion upon the Queftion of Literary Property, in the Caufe of John Hinton of London, Bookfeller, Purfuer; against Alexander Donaldson and John Wood, Bookfellers in Edinburgh, and James Meuros, Bookfeller in Kilmarnock, Defenders. Published by James Bofwell, Efq; Advocate, one of the Counfel in the Caufe. 4to. 2 s. Edinburgh printed. Sold in London by Donaldson, &c. 1774
HE arguments against perpetual copy-right are exhibited with peculiar advantage in this publication, not only as they are difplayed with all the ability of the Lords of Seffion, but as they are prefented to the reader in one continued train, without any difagreeable interruptions from oppofite reasonings or objections, excepting a fingle inftance, in which one of their Lordfhips fteps forth as champion for the rights of authors. It will not be difficult to bring within a moderate compafs the fubftance of the feveral arguments urged on this caufe, as far as they are at all diftinct from thofe of Judge Yates in the preceding Article, or of any importance in deciding the general question.
Lord KAMES and Lord COALSTON object against any literary property, on the ground of the general idea of property adopted by Judge YATES, that it neceffarily fuppofes corporeal fubftance. The former fays, copy-right is not a right to any corpus ergo it is not property, but a privilege or monopoly enjoyed by grant. The arguments from this fource have been already noticed in the preceding Article; and they are fully refuted in this debate
by Lord MONBODDO, who expreffes himself with great perfpicuity on the nature of literary property.
A great deal of argument, fays he, has been used to prove that such a property is a mere chimera, incapable of being defined or ascertained. This part of the argument, I own, furprized me a good deal for it must be allowed that fuch property is given by the ftatute, at leaft for a time; and if it be given by the ftatute for a time, there is nothing in its nature to hinder it from being given by common law for a perpetuity. And the nature of it is fufficiently defined by the ftatute; for it is there defined, the fole liberty of printing or reprinting "the book." It is therefore what every right of property is, the right of ufing a thing exclufive of others. And the ufe of the thing in this cafe afcertained by the ftatute is the printing or reprinting of the book: for there may be fundry uses of the fame thing; and as many uses as there are, fo many different rights or interefts there may be in it. If I purchase a book, I may use it for my instruction or amufement; or I may employ the paper or binding of it as I think proper; and fo far I may be faid to have the property of it. But I cannot reprint it, because that use belongs to the author or his affignee, and fo far he is a proprietor. Here is nothing obfcure or unintelligible; but it is what every man, even though he be no philofopher, can readily conceive. All therefore that we have heard about the abfurdity of a property in ideas appears to me to be nothing to the purpofe.'
The argument from the nature of publication, as neceffarily implying a renunciation of property, though fo material in the queftion, is here little infifted on by the opponents of literary property; and nothing new is offered on this fide of the debate relative to this point. On the oppofite fide Lord MONBODDO has caft new light upon the subject in the following paragraph:
"That every author has a property in his own manufcript has not been denied ; and it has been admitted that in confequence of this property he may, as the law now ftands, print it if he pleafes, and fo far reap the fruits of his property.-Let us then tuppofe that the author, inftead of multiplying copies by the prefs, makes feveral in writing; and that he gives the ufe of one of thefe copies to a friend. This happened in the cafe of Lord Clarendon's Hiftory; and it was there adjudged, that the person who got the use of the copy, had not a right to print it, though it did not appear that, when he got it, he was laid under reftraint or limitation as to the use of it. It is true, indeed, that the p.rfon in that cafe got the ufe of the MS. for nothing. But would it have altered the cafe if Lord Clarendon's heir, in confideration of the expence or trouble of tranfcribing the MS. had made him pay fomething for the use of it?
Or fuppofe that, inftead of tranfcribing it, he had taken the more expeditious way of taking copies of it by the prefs? It appears, therefore, that by giving the ufe either of MS. or book, for hire or without hire, I do not give the liberty of printing or reprinting it, even though no fuch condition was mentioned. And fo it was adjudged by my Lord Hardwicke, in the cafe of a letter, of which the man to whom it was written and fent appears to be as much the proprietor, as any man of any book or MS. and yet he is not entitled to print it. I hold it to be part of the contract of emption, when a book is fold, that it fhall not be multiplied.-In the cafe of a printed book, it is not only understood, that the purchafer fhall not reprint it; but it is expreffed. For the title-page bears, that it is printed either for the author, or for fome bookfeller to whom he has affigned the copy: the meaning of which cannot be that the author or the bookfeller has a right to the copies already printed (for as they are in his poffeffion, fuch advertisement is altogether unneceffary) but to intimate that he has the fole right of printing: fo that the felling a book with fuch a title is in effect covenanting that the purchafer fhall not reprint it.'
All the remaining arguments introduced in this caufe may be reduced to thefe two general heads; That it is difficult to afcertain the boundaries of literary property; and that it would be inexpedient to render it perpetual. To the former of thefe heads may be referred all that Lord AUCHINLECK hath faid to fhew, that if an author hath a copy-right in his printed works, any man has a fimilar right in the bon mots which he utters in conversation, or in the poem or fermon which is delivered vivä você, and not committed to writing: and what Lord HAILES fays concerning the liberties which the London booksellers take of limiting their common law-right to fuit their conveniency, by retailing, abridging, compiling, and publishing with notes; or of enlarging it, by appropriating copy thrown into the public ftock, and conferring the name of original author on every tastelefs compiler. Whatever a man utters in converfation or fet difcourfe is certainly his own, and ought not to be employed by another for any purposes which he may not be fairly fuppofed to allow, or which he exprefsly or by clear implication forbids. A lecturer, for inftance, delivers his lectures, perhaps memoriter or extempore, for the inftruction of his pupils, and his own emolument would it be equitable for any perfon, who takes copies of his lectures in fhort hand, to deliver or publish them for his own benefit? The truth of the cafe is, words or difcourses, of which the fpeaker does not plainly intend to make advantage, does not apply to the prefent queflion; thofe of which he does, may properly come under the reftrictions of literary property. With refpect to the London bookfellers, the