COPYR

I.

OPYRIGHT (from the Latin copia, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.

There is another legal sense of the word copyright" much emphasized by several English justices. Through the low Latin use of the word copia, our word "copy" has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the "copy set in his copy-book, and the modern printer calls for the author's "copy." Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards: "When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law dɔes give a man who has composed a work a right to it at composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing." Baron Parks, in the same case,

| pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of multiplication, which alone has been the subject of special statutory protection.

There is nothing which may more properly be called property than the creation of the individual brain. For property means a man's very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of own-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual, thinking it, had put it aside without such record, it would not, in any practical sense, exist. We cannot know what might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity to so materialize their thoughts.

It is sometimes said, as a bar to this idea of property, that no thought is new-that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, a view of which Henry C. Carey has been the chief exponent in this country. But there is no real

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analogy-aside from the question whether the denial of individual property in land would not be setting back the hands of progress. Farmer Jones does not raise potatoes from a piece of land Farmer Smith can ; but Shakespeare cannot write" Paradise Lost" nor Milton "Much Ado," though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

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Property right in unpublished works has never been effectively questioned-a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has supreme control" over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent. "If he lends a copy

to another," says Baron Parks, "his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

It is at the moment of publication that the undisputed possessory right passes over into the much-disputed right to multiply copies, and that the vexed question of the true theory of copy. right property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the

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right to use. An author cannot use-that is, get beneficial results from his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain an implied undertaking that the buyer has liberty to use his copy but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

The inherent right of authors is a right at what is called common law that is, natural or customary law. So far as concerns the undisputed rights before publication, the copyright laws are auxiliary merely to common law. Rights exist before remedies; remedies are merely invented to enforce rights. "The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger, "is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein." After the invention of printing it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became therefore the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.

These laws, covering naturally enough only the 1 country of the author, and specifying a time during which the penalties could be enforced, and providing means of registration by which authors could register their property rights, as the title to a house is registered when it is sold, had an unexpected result. The statute of Anne, which is the foundation of present English copyright law, intended to protect authors' rights by providing penalties against their violation, had the effect of

limiting those rights. It was doubtless the intention of those who framed the statute of Anne to establish, for the benefit of authors, specific means of redress. Overlooking, apparently, the fact that law and equity, as their principles were then established, enabled authors to use the same means of redress, so far as they held good, which persons suffering wrongs as to other property had, the law was so drawn that in 1774 the English House of Lords (against, however, the weight of one half of English judicial opinion) decided that, instead of giving additional sanction to a formerly existing right, the statute of Anne had substituted a new and lesser right to the exclusion of what the majority of English judges held to

have been an old and greater right. Literary and like property to this extent lost the character of copyright, and became the subject of copy-privilege, depending on legal enactment for the security of the private owner. American courts, wont to follow English precedent, have rather taken for granted this view of the law of literary property, and our Constitution, in authorizing Congress to secure "for limited terms to authors and inventors the exclusive right to their respective writings and discoveries," was evidently drawn from the same point of view, though it does not in itself deny or withdraw the natural rights of the author at common law.

OUR traditions of the blind Homer, singing his Iliad in the multitudinous places of his protean nativity, do not vouchsafe us any information as to the status of authors in his day. But there is mention in Roman literature of the sale of "playright" by the dramatic authors, as Terence, and Rome had booksellers who sold copies of poems written out by slaves, and who seem to have been protected by some kind of Courtesy of the trade," since Martial names certain booksellers who had specific poems of his for sale. Horace complains that the Sosius brothers, his publishers, got gold while he got only fame; but this may have been a pre-historic "author's grumble," and it is probable that some kind of payment was made to authors.

There is, nevertheless, no valid evidence of the protection of book-property until the invention of printing. This raised, of course, many new questions, wherever the guardians of the law were set to their chronic task of applying old ideas of right to new conditions. At first the "privileges" were granted chiefly to printers, but possibly as the representatives of the writers. The first recorded instance is in 1491, when Venice gave to the publicist Peter of Ravenna and the publisher of his choice the exclusive right to print and sell his "Phoenix." The Italian States encouraged printing by granting to different printers exclusive rights for fourteen years, more or less, of printing specified classics, a practice certainly not founded on authors' rights, but rather on a theory of eminent domain and State monopoly of such property. Similar privileges were issued in Germany, the first at Nuremberg, 1501, for the works of a nun-poet who had been dead for six hundred years, and some of these

provided penalties against reprinters. General acts providing both protection and penalties were passed in Germany as early as 1660. In France, from the times of Louis XII., "letters of the king" forbid booksellers, printers, and other persons to "introduce foreign impressions" (meaning, it is supposed, unauthorized reprints) of the books to which such letters were appended. They were usually issued to printers. In 1556 a general ordinance of Henry II. defined literary property.

In England a Royal Printer was appointed in 1504, and to his successor, Richard Pynson, in 1518, the first printing "privilege" was issued, in the form of a prohibition for two years of the printing by any other person of a certain speech to which this first English copyright notice was appended. Henry VIII. granted many such privileges, and in 1533 appeared the first complaint of piracy, that of Wynken de Worde, who obtained the king's privilege for his second edition of Witinton's Grammar, because Peter Trevers had pirated it from the edition of 1523. In 1530 the first English copyright to an author was granted to John Palsgrave, who, having published a French grammar at his own expense, received a privilege for seven years. Up to the middle of the sixteenth century copyrights" were in form printers' licenses, and even in this case Palsgrave seems to have been recognized rather because he published his own book than because he wrote it.

The Stationers' Company," chartered in 1556, was in part a device to prevent seditious printing, by prohibiting any printing in England except by those registered in its membership. In 1558, under a second charter, its by-laws provided that every one who printed a book should

register it and pay a fee, and those who failed to do this, or who printed another member's book, were to be fined. In 1559 fines of this last sort, and in 1573 sales of "copy," are entered. The practice now grew up of granting patents or monopolies to persons for a whole class of books, and the Stationers' Company itself held that for almanacs up to a very late period. These monopolies were defied, and the Star Chamber decree of 1566, disabling offending printers from exercising their trade and prescribing three months' imprisonment, did not avail. In 1640 the Star Chamber and all the regulations of the press were abolished, but the abuse of unlicensed printing led to a new licensing act in 1643, which prohibited printing or importing without consent of the owner, on pain of forfeiture of copies to the owner, and which renewed the order that all books should be entered in the register of the Stationers' Company. The early registers still exist in Stationer's Hall, near Paternoster Row, London, in quaint and almost undecipherable chirography, and some of them have been reissued in fac-simile. It was against the licensing act of this date that Milton, in 1644, printed his Areopagitica," but he particularly excepts from his criticism of the act the part providing for "the just retaining of each man his several copy, which God forbid should be gainsaid."

In 1649 Parliament provided a penalty of 65. 8d. and forfeiture for the piracy of registered books, and prohibited presses except at London, Finsbury, York, and the universities, and in 1662 it added the requirement of deposit of a copy at the king's library and at each of the universities. To prevent fraudulent changes in a book after licensing, it was further required that a copy be deposited with the licenser at the time of application-apparently the origin of our

record-deposit. With the expiration of these acts in 1679 legislative penalties lapsed, and piracy became common. Charles II. in 1684 renewed the charter of the Stationers' Company, approved its register, and confirmed to proprietors of books "the sale, right, power, and privilege and authority of printing, as has been usual heretofore." The licensing act of 1649-'62 was revived in 1685, and renewed up to 1694, although the booksellers now petitioned against it, and eleven peers protested against subjecting learning to a mercenary and perhaps ignorant licenser, and destroying the property of authors in their copies. The law lapsed because of the indignation of the Commons against the arbitrary power of the license, but the result was the abolition of statutory penalties, leaving the punishment of piracy a matter of damages at common law, requiring a separate action for each copy sold, usually against irresponsible people. Piracy again flourished. The right at common law seems, however, to have been unquestioned, and the Court of Common Pleas held that a plaintiff who had purchased from the executors of an author was owner of the property at common law. Owners of literary property petitioned Parliament, 1703 to 1709, for security and redress. declaring that the property of English authors had always been held as sacred among the traders, that conveyance gave just and legal title, that the property was the same with houses and other estates, and that existing "copies" had cost at least £50,000, and had been used in marriage settlements and were the subsistence of many widows and orphans. This led to the famous statute of Anne, passed March, 1710, "for the encouragement of learning," which remains the practical foundation of copyright in England and America to-day.