Thus, Congress has repeatedly refused to grant protection to the works of foreign authors, and in every copyright statute passed since the formation of the government has emphatically declared that such works are legitimate subjects of piracy. This country is put to shame by the legislation of England and other foreign nations on this subject. The English laws, as far as they relate to foreign authors, show a comprehensive liberality, a broad, catholic spirit, not found in those of the United States. Not only are special advantages offered by the international copyright laws to men of letters of any country which will extend reciprocal privileges to English authors, but, in legislating" for the encouragement of learning" in Great Britain, Parliament has made no distinction between native and foreign authors. In the opinion of many statesmen and jurists, the law invites men of learning everywhere to send their productions to the United Kingdom for first publication, that England may become a centre of learning and culture. The most learned judges of the realm, from Lord Mansfield down to Lord Chancellor Cairns, have given this interpretation to the statutes, have maintained that this is the law of the realm. It is true that the decision of the House of Lords in 1854 imposes on a foreign author a condition from which a subject is free; but the former may acquire the full benefit of the statute by his presence within the British dominions at the time of publication. The judgment making even this bodily presence necessary has been shaken to the foundation; 2 and now the Royal Commissioners on Copyright, in their report submitted to Parliament in June, 1878, recommend that, on the condition of first publication in Great Britain, "the benefit of the copyright laws should extend to all British subjects and aliens alike." 3 After reviewing the steady refusal of the United States to grant protection to British authors, either by law or treaty, the commissioners take this enlightened and philosophic position : —

"It has been suggested to us that this country would be justified in taking steps of a retaliatory character, with a view of enforcing inci

1 Jefferys v. Boosey, 4 H. L. C. 815. 2 See Chap. IV., Rights of Foreign Authors in Great Britain.

3 Report of the Royal Commissioners on Copyright, p. xiv, § 64.

dentally, that protection from the United States which we accord to them. This might be done by withdrawing from the Americans the privilege of copyright on first publication in this country. We have, however, come to the conclusion, that, on the highest public grounds of policy and expediency, it is advisable that our law should be based on correct principles, irrespectively of the opinions or the policy of other nations. We admit the propriety of protecting copyright; and it appears to us that the principle of copyright, if admitted, is one of universal application. We therefore recommend that this country should pursue the policy of recognizing the author's rights, irrespective of nationality."1

Not less liberal should be the United States. Her gates bearing the inscription Tros Tyriusque mihi nullo discrimine agetur, should be opened wide to the authors of all tongues, all races, all creeds. All countries should be one for noble men who labor, in whatever vineyard, for the advancement of knowledge and truth. Whoever shall move Congress to pass a law inviting authors, composers, and artists, of every nation under the sun, to send their treasures of learning, science, and art to our shores, where they shall be protected, will deserve a monument more durable than brass.

1 Report of the Royal Commissioners on Copyright, p. xxxviii, § 251.

CHAPTER I.

COMMON-LAW PROPERTY IN UNPUBLISHED WORKS.

Literary Property defined. - Literary property is the exclusive right of the owner to possess, use, and dispose of intellectual productions. An intellectual creation without material form may exist in the mind of the author. But it is only when embodied in written or spoken language that it can possess the attributes of property; for it is only by language that it can have any being out of the author's mind, that it can be enjoyed by others, that it can be identified. There can, then, be no property in a production of the mind unless it is expressed in a definite order of words. But the property is not in the mere words alone, not alone in the one form of expression chosen by the author. It is in the intellectual creation, which language is merely a means of expressing and communicating. The words of a literary composition may be changed by substituting others of synonymous meaning; but the intellectual creation will remain substantially the same. This truth is judicially recognized in the established principle, that the property of the author is violated by an unauthorized use of his composition, with a colorable change of words; the test of piracy being not whether the identical language, the same words, are used, but whether the substance of the production is unlawfully appropriated. So an intellectual production may be expressed in any number of different languages. The thing itself is always the same; only the means. of communication is different. The plot, the characters, the sentiments, the thoughts, which constitute a work of fiction, form an immaterial creation, which may be communicated by a hundred different tongues, by the labial or the sign language of the mute, the raised letters of the blind, the comprehensive characters of stenography. The means of communication

are manifold; but the invisible, intangible, incorporeal creation of the author's brain never loses its identity. The Bible has been translated into all tongues; but its truths, its eloquence, its poetry, have been the same to all nations.

Literary property, then, is not restricted to the one form of language in which thoughts are expressed, but is in the intellectual creation which is embodied in such language. This creation, in whatever language or form of words it can be identified, the author may claim as his property. That there can be no property in thoughts, conceptions, ideas, sentiments, &c., apart from their association, is clear; for they are then incapable of being identified or owned exclusively. But their arrangement and combination in a definite form constitute an intellectual production, a literary composition, which has a distinct being capable of identification and separate ownership, and possessing the essential attributes of property. The property is not in the simple thoughts, ideas, &c., but in what is produced by their association.

The property in an intellectual production is incorporeal, and is wholly distinct from the property in the material to which it may be attached. Indeed, literary property may exist independently of any corporeal substance. It may be as perfect in a production expressed in spoken as in one communicated by written or printed words. A poem when read, a lecture when delivered, a song when sung, a drama when acted, may have all the attributes of property, though not a word has been written or printed. The true test is not whether the thing is corporeal or incorporeal, not whether it is attached to a material substance, but whether it is capable of identification so that exclusive ownership may be asserted. The identity of an intellectual production is secured by the language in which it is expressed; and this is true whether the language be spoken or written. When a composition has not been reduced to writing, it may be more difficult, and in some cases impracticable, to prove the authorship, and thereby to establish a title to ownership. But the manuscript is but a means of proof. And when the title to the ownership is not disputed, or can be satisfactorily established without the existence of a writing, as it may be in many cases, it is immaterial whether the composition has

been reduced to writing, or has been communicated only in spoken words. The Iliad was as valid a subject of property when recited from memory at the Greek festivals as it was when, long afterward, it appeared in written or printed language.1

As material property may pass out of the actual or personal possession of the owner, while the legal possession or title is in him, so literary property is within the legal domain of the owner, though it be in the actual possession of another. The owner may part with the paper on which a composition is written, or the book in which it is printed, without forfeiting any proprietary right in the composition itself. The legal title to Clarendon's History was not affected by the fact that a manuscript copy was for a century in the custody of those who were not the owners of the copyright. An intellectual production differs from any material substance in that it is capable of being multiplied or copied indefinitely, and of being used and

"The property in the copy thus abridged, is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever. ... The property of the copy, thus narrowed, may equally go down from generation to generation, and possibly continue for ever, though neither the author nor his representatives should have any manuscript whatsoever of the work, original, duplicate or manuscript. Mr. Gwynne was entitled, undoubtedly, to the paper of the transcript of Lord Clarendon's History; which gave him the power to print and publish it after the fire at Petersham, which destroyed one original. This might have been the only manuscript of it in being. Mr. Gywnne might have thrown it into the fire had he pleased. But at the distance of near a hundred years, the copy was adjudged the property of Lord Clarendon's representatives; and Mr. Gwynne's printing and publishing it without their consent was adjudged

an injury to that property, for which in different shapes he paid very dear." Lord Mansfield, Millar v. Taylor, 4 Burr. 2396, 2397.

"A literary composition," said Sir William Blackstone, "as it lies in the author's mind, before it is substantiated by reducing it into writing, has the essential requisites to make it the subject of property. While it thus lies dormant in the mind, it is absolutely in the power of the proprietor. He alone is entitled to the profits of communicating, or making it public." Tonson v. Collins, 1 W. Bl. 322.

In Abernethy v. Hutchinson, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, and refused to grant an injunction on this ground until the question should be determined at law. 3 L. J. (Ch.) 209; s. c. 1 Hall & Tw. 28. As there was no question in this case that the plaintiff was the author and the owner of the lectures for which he claimed protection, his property therein was in no wise affected by the non-existence of a manuscript.