idleness. "The most natural claim to a thing," says Rutherforth, "seems to arise from our having made it; for no one appears to have so peculiar a right in it as he who has been the immediate cause of its existence."1 - Ownership, then, is created by production, and the producer becomes the owner. This principle is general, and covers all productions, the whole field of labor. It cannot be applied to the produce of one kind of labor, and withheld from that of another. It matters not whether the labor be of the body or of the mind. The yield of both comes under the same fundamental principle of property, which recognizes no distinction between the poet and the peasant in the ownership of their productions. No theory, no explanation, no consideration, has been advanced by the great writers to account for the inviolability of property in the produce of bodily labor, which does not apply with equal force and directness to property in the fruits of intellectual industry. No vital qualities have been assigned to one which are not equally inherent in the other. All the attributes and conditions marked out by Pufendorf as essential to the constitution of property are found in intellectual productions.2 In other words, neither in its origin nor in its essential qualities is literary property sui generis; but it is simply a division, a species, of general property. It is subject to all the fundamental rules governing the acquisition, possession, and transmission of property. It is acquired by labor, succession, gift, purchase; transmitted by sale, donation, bequest; lost by abandonment. It may be injured, stolen, borrowed and lent, mortgaged and pawned. It may be the subject of contract, bargain, trade, fraud. Published, it may be seized by creditors. Disraeli says you may fill warehouses and freight ships with it.3 1 Inst. of Nat. Law, b. i. c. 3, § 11. 2 De Jure Nat. et Gent. lib. iv. 3 "The origin of the property is in production. As to works of imagination and reasoning, if not of memory, the author may be said to create; and, in all departments of mind, new books are the product of the labor, skill, and capital of the author. The subject of property is the order of words in the author's composition: not the words themselves, they being analogous to the elements of matter, which are not appropriated unless combined; nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation. The nature of the right of an author in his works is analogous to the rights of ownership in other personal property." Erle, J., Jefferys v. Boosey, 4 H. L. C. 867. "A production of the mind That there is an important dividing-line between property in the results of manual and in those of intellectual labor is clear. The former is corporeal; the latter, without material substance. Literary property is not in the material which preserves the author's production, and is the means of its communication to others, but in the intellectual creation, which is composed of ideas, conceptions, sentiments, thoughts. It is in what is conveyed by the words of the manuscript or the printed page, and not in the paper or parchment. It is in an invisible, intangible creation of the mind, fixed in form and communicated to others by language. Incorporeal itself, it is generally attached to the corporeal. It has been maintained that material substance is an essential attribute of property, — that nothing can be the subject of ownership which is not corporeal. This is an error which has arisen from the assumption that materiality is essential to the determination of the identity of a thing. It is clear that a thing must be capable of identification, in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. The spirit both of natural and of artificial law is to assign an owner to every thing capable of ownership. The very meaning of the word "property" in its legal sense is "that which is peculiar or proper to any person; that which belongs exclusively to one." The first meaning of the word from which it is derived -proprius-is" one's own." Property in what is written on paper, as wholly distinct from that in the paper itself, is expressly conceded by Pufendorf; who denounces the doctrine of the Roman lawyers, that, when one man wrote any thing on the parchment of another, the writing belonged to the owner of the blank material, on the ground that "the writing is of more worth than the paper."1 Whatever, then, having the other requisites of property, can be identified, becomes a proper subject of ownership. This is property in every essential sense in which a production of the hands is the producer's property." Robertson, J., Grigsby v. Breckinridge, 2 Bush (Ky.), 485. $ 7. 1 De Jure Nat. et Gent. lib. iv. c. 7, attribute is found no less marked in intellectual than in manual productions. The identity and ownership of the former can be determined as easily and precisely as those of the latter. "I confess I do not know," said Mr. Justice Aston, "nor can I comprehend, any property more emphatically a man's own, nay, more incapable of being mistaken, than his literary works."1 The absurdity of arguing that the poetry of Tennyson cannot be distinguished from that of Longfellow, or the prose of Carlyle from that of Emerson, would seem to be sufficiently apparent. And yet the corner-stone of the theory that there can be no property in intellectual productions was laid a century ago, by an English judge, on the error that such productions, being incorporeal, are "not capable of distinguishable proprietary marks;" and therefore cannot be the subject of property, since ownership cannot be determined.2 Indeed, so complete may be the identity of an incorporeal literary composition, that, even when it has no existence in writing or print, it may be preserved in its entirety for ages in the memory; passing from generation to generation, from country to country. The composer will conceive and give expression to a musical composition without putting a note on paper. It is a creation, without material form, in the realm of the imagination; but so complete is its incorporeal, invisible form, so marked its individuality, so distinctly perceptible to the musical mind, that another will reproduce it "by ear," without the aid of written or printed notes. Corporeal possessions perish; but time does not destroy or efface what is best in literature. The intellectual creations of the Romans have come to us, through twenty centuries, more completely preserved than their temples; and, while many of their monuments of stone and brass can no longer be distin 1 Millar v. Taylor, 4 Burr. 2345. "The identity of a literary composition," says Sir William Blackstone, "consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent." 2 Com. 406. 2 Yates, J., Millar v. Taylor, 4 Burr. 2365-2366. guished, the identity of their intellectual monuments, small even as the gems of Horace, remains whole. That greatest creation of ancient genius, the Iliad, has not only preserved its identity through nearly thirty centuries, but, according to Jacobs and other Greek scholars, it was recited from memory at the Greek festivals for ages before it was "imprisoned in written characters." 1 WHAT EFFECT HAS PUBLICATION ON THE AUTHOR'S RIGHTS? It may, then, be assumed that before publication an author has, in the fruits of his intellectual labor, a property as whole and as inviolable as that which exists in material possessions; that he has supreme control over such productions, may exclude others from their enjoyment, may dispose of them as he pleases. It is generally conceded that the author has this right while the work is in manuscript. But it has been argued that publication is an abandonment of the work to the public; that as soon as published it becomes publici juris, and the author's 1 "With respect to the first of these grounds, that copyright cannot be the subject of property, inasmuch as it is a mental abstraction too evanescent and fleeting to be property, and as it is a claim to ideas that cannot be identified, nor be sued for in trover or trespass, the answer is, that the claim is not to ideas, but to the order of words; and that this order has a marked identity and a permanent endurance. Not only are the words chosen by a superior mind peculiar to itself, but in ordinary life no two descriptions of the same fact will be in the same words, and no two answers to your Lordships' questions will be the same. The order of each man's words is as singular as his countenance; and although, if two authors composed originally with the same order of words, each would have a property therein, still the probability of such an occurrence is less than that there should be two countenances that could not be discriminated. The permanent endurance of words is obvious, by comparing the words of ancient au thors with other works of their day: the vigor of the words is unabated; the other works have mostly perished. It is true that property in the order of words is a mental abstraction: but so also are many other kinds of property; for instance, the property in a stream of water, which is not in any of the atoms of the water, but only in the flow of the stream. The right to the stream is not the less a right of property, either because it generally belongs to the riparian proprietor, or because the remedy for a violation of the right is by action on the case, instead of detinue or trover. The notion of Mr. Justice Yates, that nothing is property which cannot be ear-marked, and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple; but is not true in a more civilized state, when the relations of life and the interests arising therefrom are complicated." Erle, J., Jefferys v. Boosey, 4 H. L. C. 868. property lost, except as far as it may be protected by statute. The effect of this theory is to deny to the author all property except that which he has in the paper on which his thoughts are written. While the manuscript is in his possession, it is his only by virtue of his property in the material; when he parts with his paper, he loses his entire property. Others admit the existence of a property other than that in the paper, but maintain that when published it is taken from the owner by force of the statute. If by publication this species of property is lost to the owner, it must be on the principle of abandonment or of contract. No other theory has been, and no other can be, advanced. Let us, then, examine each. No principle of law is more firmly established than that there can be no abandonment of property without the consent of the owner. This is conceded by all the writers on natural law, and denied by none. "A thing is understood to be abandoned," says Grotius, "when it is cast away; unless it appears that it was so cast away only for a time, and with intention to reclaim it." 1 Pufendorf says: : "To make a thing completely abandoned or forsaken, two points are necessary: first, that the person refuse to own it for the future; and, secondly, that he divest himself of the possession by leaving the thing or casting it away. If either of these conditions be wanting, the property is not vacated. Thus, if I throw a thing by, yet without intention to quit my right in it, I do not prejudice myself by that action. And, on the other hand, though I am resolved utterly to quit my title to a thing, yet, unless I actually cast it off, I am still the proprietor." In his notes on the same jurist, Barbeyrac adds: "2 "To authorize us, then, to look upon a thing as abandoned by him to whom it belonged, because he is not in possession, we ought to have some other reasons to believe that he has renounced his personal right to it. Now, as I have observed, we may presume this in respect to those things which remain such as nature has produced them, especially such as are very numerous or are of a vast extent; though Mr. Titius does not make that distinction, and maintains that one may be master of the sea, although he be not in possession. But as for other 1 De Jure B. ac P. lib. ii. c. 4, § 4. |