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THE LAW

OF

COPYRIGHT AND PLAYRIGHT.

THE ORIGIN AND NATURE OF LITERARY
PROPERTY.

WHEN Anne was Queen of England, Parliament passed An Act for the Encouragement of Learning, which declared that an author should have the sole right of publishing his book for a named term of years, and prescribed penalties against piracy. Whether the origin of copyright is to be found in this legislation or in the common law; whether the common-law right, if it existed, was taken away or abridged by the statute; whether since 1710, when the 8 Anne, c. 19, became a law, copyright in a published work has existed only by statute, — are questions which have divided the opinions of jurists and statesmen for more than a century. For half a century after the act of Anne was passed, the chancery courts, in administering the law, did not doubt that, by the common law and independently of legislation, there was property of unlimited duration in printed books. In 1769, this principle was affirmed by the Court of King's Bench. Five years later, the House of Lords, on an equal division of the judges, declared that the common-law right, after publication, had been taken away by the statute of Anne, and that authors had no rights in their published works except under that act.2 This has since been the law of England. The English statute was copied by Congress in 1790, and the construction put upon it by the House of Lords was followed by the Supreme Court of the United States in 1834.3 Some of the ablest jurists of England and America have con8 Wheaton v. Peters, 8 Pet. 591.

1 Millar v. Taylor, 4 Burr. 2303.

2 Donaldson v. Becket, 4 Burr. 2408.

tended that this exposition of the law is wrong; others have maintained that it is right.

The discussion of the subject has given rise to four theories concerning the nature of copyright:

First. That intellectual productions constitute a species of property founded in natural law, recognized by the common law, and neither lost by publication nor taken away by legislation.

Second. That an author has, by common law, the exclusive right to control his works before, but not after, publication. Third. That this right is not lost by publication, but is destroyed by statute.

Fourth. That copyright is a monopoly of limited duration, created and wholly regulated by the legislature; and that an author has, therefore, no other title to his published works than that given by statute.

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The chief question to be determined is, whether copyright is a natural right of property, based on and governed by the same general principles which underlie all property; or whether it is an artificial right, a monopoly which has been created by the legislature, and may at any time be swept away by the same power. The true solution of this problem can be reached only by an examination of the fundamental principles on which the right of property rests. The questions to be considered are these:

I. Has an author, by the common law, a property in his intellectual productions?

II. Is such property lost by publication?

III. May it rightfully be taken from the owner by the legislature?

IV. Has it been taken away or abridged by statute?

All the great writers on natural law agree in placing the origin of property in preoccupancy. They differ in the grounds and reasons advanced in support of this theory. Grotius and Pufendorf hold that this right is based on social compact; that there must have been a previous implied assent, or tacit agreement, that the first occupant should become the owner. Barbeyrac, Titius, Locke, Blackstone, and others maintain that such tacit agreement is not necessary, and that the right was

created by the act of occupancy alone. All, however, reach the same conclusion, that, in that early age, when all land was common, each person became entitled to hold to his own exclusive use that which he first occupied. This act vested in one man a right which was respected by his fellows, and gave birth to ownership. And this was the theory of the Roman jurisconsults.2

Preoccupancy is first possession; and this is given by creation, by production. The creator is the first possessor of that which he creates. In labor, then, is found the origin of the right to property. Occupancy implies labor. It implied labor in the beginning; for to take and hold possession of a part of the unoccupied land were impossible without bodily exertion. Still more was physical effort required in later times, when occupancy represented distance overcome, toils endured, and dangers passed. Indeed, Locke, Barbeyrac, Titius, and others expressly hold that the principle of occupancy is based on labor. In commenting on the statement of Paulus, the Ro

1 Grotius de Jure B. ac P. lib. ii. c. 2, 3; Pufendorf de Jure Nat. et Gent. lib. iv. c. 4, 6; Locke, Civil Gov. c. 5; 2 Bl. Com. c. 1.

2 Maine Ancient Law, c. 8. Barbeyr. Puf. lib. iv. c. 4, § 4, n. 4; 2 Bl. Com. c. 1.

Locke's theory, that labor is the origin of the right of property, is thus explained in his own language:

"Though the earth and all inferior creatures be common to all men, every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it that excludes the common right of other men. For, this labor being the unquestionable property of the laborer, no man but he can have a right to

what that is once joined to; at least where there is enough, and as good, left in common for others.

"Thus this law of reason makes the Ideer that Indian's who hath killed it; it is allowed to be his goods who hath bestowed his labor upon it; though, before, it was the common right of every one. And amongst those who are counted the civilized part of mankind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place; and, by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind, — or what ambergris any one takes up here, is, by the labor that removes it out of that common state nature left it in, made his property who takes that pains about it. And, even amongst us, the hare that any one is hunting is thought his who pursues her during the chase; for, being a beast that is still looked upon as common and no man's private possession, whoever has employed so much labor about any of

man lawyer, that creation-which implies labor-is an original mode of acquiring property, Grotius thought that this, instead of being classed as a distinct and peculiar mode of acquisition, should be referred to that of occupancy.1

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We find, then, the principle of labor expressly advanced by some of the public jurists to explain the origin of property, not denied by others, and in harmony with the theories of all. And this has continued a fundamental principle, both in theory and practice, throughout the entire history of property. The principle is as old as property itself, that what a man creates by his own labor, out of his own materials, is his to enjoy to the exclusion of all others. It is based not only on natural right, but also on the necessities of society, being essential to the promotion of industry. Before the time of written law, Abraham maintained his right to a well because he had digged this well; "2 and, more than a century later, his son Isaac successfully claimed it as his father's property.3 Even the savage claims for himself the game which he has secured by his own toil, the fishes which he has caught, the trees which he has felled, and the acorns which he has picked up under the oak. As Locke says, "The grass my horse has bit, the turfs my servant has cut, and the ore I have digged, in any place where I have a right to them in common with others, become my property, without the assignation or consent of anybody. The labor that was mine removing them out of that common state they were in hath fixed my property in them."4 And, where the science of law has attained its highest state, there is no purer, stronger, better title to property than that acquired by production. To him belongs the harvest whose toil has produced it; to him, the fruit who has planted the tree. This is the natural mode of acquiring property; while succession, purchase, gift, are derivative. It is not only the oldest, but the most meritorious; because what is held by this title must have been earned by the sweat of the brow, while acquisition by purchase, gift, or inheritance, is not inconsistent with

that kind as to find and pursue her, has thereby removed her from the state of nature wherein she was common, and hath begun a property." Civil Gov. c. 5.

1 De Jure B. ac P. lib. ii. c. 3.
2 Gen. xxi. 30.

3 Gen. xxvi. 15, 18.
4 Civil Gov. c. 5, § 28.

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