enjoyed at the same time by an unlimited number of persons. The right of property in it is the exclusive right to own and to use the thing itself. The owner may alone enjoy it, and exclude every other person from its enjoyment; or, without parting with the ownership, he may admit others to a private or personal use of the production. For the latter purpose, a copy is made and given to the user, who becomes the owner of the material copy, with a limited right to use and enjoy the intellectual production. But the production itself remains the property of the owner; and the user acquires no rights of ownership entitling him to multiply copies, or otherwise to make a public use of the work. This is a right of property vested solely in the owner.1

Difference between Common-Law and Statutory Right. Property in intellectual productions is recognized and protected in England and the United States, both by the common law and by the statute. But, as the law is now expounded, there are important differences between the statutory and the common-law right. The former exists only in works which have been published within the meaning of the statute; and the latter, only in works which have not been so published. In the former case, ownership is limited to a term of years; in the latter, it is perpetual. The two rights do not co-exist in the same composition; when the statutory right begins, the common-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner's commonlaw rights are lost; and, unless the publication be in accordance with the requirements of the statute, the statutory right is not secured. The common-law property in a literary composition is violated by any unauthorized public use of it, whether by printing and circulating copies, or by reading it in public. Statutory copyright may be infringed by the circulation of copies; but not by publicly reading copies.2

Copyright Defined. Copyright is the exclusive right of

1 "No disposition," said Lord Mansfield, no transfer of paper upon which the composition is written, marked or impressed, though it gives the power to print and publish, can be construed a conveyance of the copy, without the

author's express consent to print and publish, much less against his will." 4 Burr. 2396.

2 Statutory playright in a dramatic composition may be violated by publicly reading it.

the owner to multiply and to dispose of copies of an intellectual production. It is the sole right to the copy or to copy it. The word is used indifferently to signify the statutory and the common-law right of the owner in a literary or musical composition or work of art. As there are essential differences between the two rights, one is sometimes called copyright after publication, or statutory copyright; and the other, copyright before publication, or common-law copyright. Copyright is also used synonymously with literary property. Thus, the exclusive right of the owner publicly to read a literary composition, to exhibit a work of art, or to represent a drama, is often called copyright. This is not strictly correct; and, especially in the case of dramatic compositions, there are reasons for distinguishing in name the right of multiplying copies from that of representation. This latter right may well be called playright, for reasons which are given elsewhere.2

THE NATURE AND EXTENT OF COMMON-LAW RIGHTS.

In what Productions. Two principles are settled in English and American jurisprudence: 1. At common law, the owner of an unpublished literary composition has an absolute property therein. 2. When the composition is published in print, the common-law right is lost.4

1 The 5 & 6 Vict. c. 45, s. 2, defines copyright "to mean the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the word is herein applied." Copyright in a book, as secured by the American statute, is "the sole liberty of printing, reprinting, publishing, and vending the same." U. S. Rev. Sts. s. 4952.

2 See beginning of Chap. XIII.

Br. Webb v. Rose, cited 4 Burr. 2330; Forrester v. Waller, Ibid. 2331; Manley v. Owen, Ibid. 2329; Duke of Queensbury v. Shebbeare, 2 Eden, 329; Millar v. Taylor, 4 Burr. 2303; Abernethy v. Hutchinson, 1 Hall & Tw. 28; Prince Albert v. Strange, 2 De G. & Sm. 652; on ap. 1 Mac. & G. 25; Turner v. Robinson, 10 Ir. Ch. 121, 510. Am. Jones v. Thorne, 1 N. Y. Leg.

Obs. 408; Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32; Little v. Hall, 18 How. 165, 170; Banker v. Caldwell, 8 Minn. 94; Paige v. Banks, 13 Wall. 608; Parton v. Prang, 3 Cliff. 537; Carter v. Bailey, 64 Me. 458; Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Pr. (N. Y.) 194. To the same effect are the authorities cited in the following note and in notes 1, 2, 3, p. 128. See also the authorities cited in considering the common-law property in dramatic compositions, Chap. XIII.

4 Br. Donaldson v. Becket, 4 Burr. 2408; Colburn v. Simms, 2 Hare, 543; Chappell v. Purday, 14 Mees. & W. 303; Jefferys v. Boosey, 4 H. L. C. 815; Reade v. Conquest, 9 C. B. N. s. 755; Rooney v. Kelly, 14 Ir. Law Rep. N. s. 158; Midwinter v. Hamilton, 10

It may be regarded as conceded that the same is true of all kinds of intellectual productions which have been made the subject of statutory copyright, including maps,1 charts, musical compositions, engravings,2 photographs, paintings, works of sculpture, &c. In short, all productions of literature, the drama, music, and art, are within the protection of the law. "The property of an author or composer of any work," said Lord Chancellor Cottenham, "whether of literature, art or science, in such work unpublished and kept for his private use or pleasure, cannot be disputed, after the many decisions in which that proposition has been affirmed or assumed.” 4 The Author's Rights absolute before Publication.- The property of an author in his intellectual production is absolute until he voluntarily parts with all or some of his rights.5 There is no principle of law by which he can be compelled to publish it or to permit others to enjoy it. He has a right

Mor. Dict. of Dec. 8295; on ap. (Midwinter v. Kincaid) 1 Pat. App. Cas. 488; Hinton v. Donaldson, 10 Mor. Dict. of Dec. 8307; Cadell v. Robertson, Id. Lit. Prop. App. p. 16; on ap. 5 Pat. App. Cas. 493. Am. Wheaton v. Peters, 8 Pet. 591; Pulte v. Derby, 5 McLean, 328; Stowe v. Thomas, 2 Wall. Jr. 547; Stevens v. Gladding, 17 How. 447; Wall v. Gordon, 12 Abb. Pr. N. s. (N. Y.) 349; Rees v. Peltzer, 75 Ill. 475; Boucicault v. Wood, 2 Biss. 34.

1 Rees v. Peltzer, supra.

2 Prince Albert v. Strange, infra. 3 Turner v. Robinson, 10 Ir. Ch. 121, 510; Parton v. Prang, 3 Cliff. 537; Oertel v. Wood, 40 How. Pr. (N.Y.) 10; Oertel v. Jacoby, 44 How. Pr. (N. Y.) 179.

4 Prince Albert v. Strange, 1 Mac. & G. 25, 42. In the same case, ViceChancellor Bruce said: "Such then being, as I believe, the nature and foundation of the common law as to manuscripts independently of Parliamentary additions or subtractions, its operations cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an analogous man

ner, there must, I suppose, be a title to analogous protection or redress." 2 De G. & Sm. 652, 696.

In Tipping v. Clarke, 2 Hare, 383, the court did not doubt the existence of common-law property in unpublished books of account.

5"The right of the author before publication we may take to be unquestioned, and we may even assume that it never was, when accurately defined, denied. He has the undisputed right to his manuscript; he may withhold it, or he may communicate it, and communicating, he may limit the number of persons to whom it is imparted, and impose such restrictions as he pleases upon their use of it. The fulfilment of the annexed conditions he may proceed to enforce, and for their breach he may claim compensation." Lord Brougham, Jefferys v. Boosey, 4 H. L. C. 962.

6 6 There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot without his consent be seized by his creditors as property." McLean, J., Bartlett v. Crittenden, 5 McLean, 37.

to exclude all persons from its enjoyment; and, when he chooses to do so, any use of the property without his consent is a violation of his rights. He may admit one or more persons to its use, to the exclusion of all others; and, in doing so, he may restrict the uses which shall be made of it. He may give a copy of his manuscript to another person, without parting with his literary property in it. He may circulate copies among his friends, for their own personal enjoyment, without giving them or others the right to publish such copies.2

So, also, without forfeiting his rights, he may communicate his work to the general public, when such communication does not amount to a publication within the meaning of the statute. Thus, in the United States, a manuscript lecture, sermon, or any literary composition, may be delivered or read to the public by the author, or a dramatic or musical composition publicly performed, and no person without the consent of the author acquires the right to make a similar public use of it, or to print it. And the same is true in England of literary compositions which are not dramatic.

Literary Property Personal, and may be transferred by Parol. The literary property in an unpublished work is personal, and is subject to the same general rules which govern personal property. It may be transmitted by bequest, gift, sale, operation of law, or any mode by which personal property is transferred. "This property in a manuscript, is not distinguishable from other personal property. It is governed by the same rules of transfer and succession, and is protected by the same process, and has the benefit of all the remedies accorded to other property so far as applicable.” 2

While there has been much discussion as to the necessity of a writing in assigning statutory copyright, it has never been disputed, and is well settled, that the literary property in an unpublished work may be transferred by word of mouth.3 "Personal property," said Mr. Justice Clifford, "is transferable by sale and delivery; and there is no distinction in that respect, independent of statute, between literary property and property of any other description." 4

1 See Chap. XIII.

The case of Power v. Walker, 3 Maule 2 Allen, J., Palmer v. De Witt, 47 & S. 7, shows that it was the statute

N. Y. 538.

3 Turner v. Robinson, 10 Ir. Ch. 121, 510; Little v. Gould, 2 Blatchf. 165, 362; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402; Palmer v. De Witt, 47 N. Y. 532; Parton v. Prang, 3 Cliff. 537.

"The first section of the English statute of the 8 Anne, c. 19, distinctly recognizes the right to transfer and assign copyright by the common law, although assignments under that act must be in writing and witnessed.

and not the common law which required that the assignment should be in writing. It would be a waste of time to add more than that the copyright is incident to the ownership, and passes at the common law with a transfer of the work of art." Smith, M. R., Turner v. Robinson, 10 Ir. Ch. 142.

4 Parton v. Prang, 3 Cliff. 550. "Owners of personal property," continued the same judge, have the right to sell and transfer the same as