nized upon their mere statement-' that all men are endowed '-not by edicts of emperors, or decrees of Parliament, or acts of Congress, but by their Creator with certain inalienable rights'—that is, rights which can not be bartered away, or given away, or taken away except in punishment of crime' and that among these are life, liberty, and the pursuit of happiness, and to secure these '-not grant them, but secure them-' governments are instituted among men, deriving their just powers from the consent of the governed.'"

In Johnston's History of the Library of Congress, it is stated that the directors of the Library Company of Philadelphia tendered to the President and Congress, "the use of the books and their library in as full and ample a manner as if they were members of the company"; and President Washing ton, through his secretary, Tobias Lear, returned thanks for the attention. The dictionaries in this library were Johnson's, Bailey's Ash's, and Phillips's, and it is fair to assume that these were used by the Federal Convention in framing the Constitution of the United States. Ash defines "exclusive as "having power of excluding, debarring, excepting." Johnson defines exclusive " as 'having the power of excluding, denying admission, debarring from participation."

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The people did not turn to Congress, because there was no copyright and Congress alone could create the right. The States had copyright laws, but they preferred Federal legislation because that could give to authors better, more substantial protection than State legislation could do.

James Madison, in the Federalist, No. XLIII, published January 25, 1783 (which was before the adoption of our Constitution), in discussing copyright, said:

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The fourth class comprises the following miscellaneous powers:

"1. A power to promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.'

"The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to inventors. The public good fully coincides in both cases with the claims of individuals. The States can not separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress."

Protection depended on the legislation of the several States, and in order to afford to literary property, as well as to useful inventions and discoveries, adequate protection throughout the United States by a general law, the article of the Constitution was adopted.

Story gives a full explanation in section 1152 of his Commentaries on the Constitution, as follows:

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"This power did not exist under the Confederation; and its utility does not seem to have been questioned. It was beneficial to all parties, that the National Government should possess this power; to authors and inventors because, otherwise, they would have been subjected to the varying laws and systems of the different States on this subject, which would impair and might even destroy the value of their rights; to the public, as it would promote the progress of science and the useful arts; and admit the people at large, after a short interval, to the full possession and enjoyment of all writings and inventions without restraint. In short, the only boon which could be offered to inventors to disclose the secrets of their discoveries would be the exclusive right and profit of them, as a monopoly, for a limited period. And authors would have little inducement to prepare elaborate words for the public if their publication was to be at a large expense and as soon as they were published there would be an unlimited right of depredation and piracy of their copyright." These laws of the various States were passed in the years 1783 and 1786; that is, between one and four years prior to the convention which framed the Constitution. The declarations of policy and principle contained therein were necessarily familiar to the framers of the Constitution. The effect of that instrument would be to supersede those State laws by congressional legislation, and as the same legislatures who had so recently enacted copyright statutes were expected to consent to the superseding clauses of the Constitution, those who drew that clause may be supposed to have taken into consideration the expressed views of the State legislatures.

Chancellor Kent, in 1812, writing a concurring opinion in the case of Livingstone v. Van Ingen (9 Johns. 572 (New York)), had occasion to speak of

the men who framed the Constitution, and who sat in the halls of the legislatures of the various States during that period. He said (p. 572):

"There were members in that legislature, as well as in all the other departments of the Government, who had been deeply concerned in the study of the Constitution of the United States, and who were masters of all the critical discussions which had attended the interesting progress of its adoption. Several of them had been members of the State convention, and this was particularly the case with the exalted character who at that time was chief magistrate of this State (Mr. Jay) and who was distinguished as well in the council of revision as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature."

And at page 574:

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For everyone acquainted with the history of those times, well knows that the principles of the Constitution, in the progress of its adoption through the United States, were discussed in the several conventions, and before the public, by men of the most powerful talents, and with the most animated zeal for the public welfare. There were many distinguished individuals, and none more so than the one to whom I have referred, who had bestowed intense thought, not only upon the science of civil government, at large, but who had specially and deeply studied the history and nature, the tendency and genius of the Federal system of government of which the European confederacies had given us imperfect examples, and to which system, as improved by more skillful artists, the destinies of this country were to be confided. Principles of construction solemnly sanctioned at that day, and flowing from such sources, as to be regarded by us, and by posterity, as coming in the language of truth, and with the force of authority."

The intent of the clause was to put into the concisest possible language a mandate to Congress broad enough to embrace all that the States had declared for. The intent was to empower Congress to carry into execution those principles of natural justice and equity which require that those who produce by the labor of their minds be secure in receiving all the profits which arise from their works during a limited time.

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The words "exclusive right" are as broad as that common understanding of copyright on the part of the framers of the Constitution. They include all rights, the "sole and full liberty," as was used in the first act after the Constitution went into effect, to all the fruits and profits of intellectual labor, and all means necessary to effectually protect these rights. The words exclusive right" are broad enough to include every profitable use that can be made of the author's work. The word secure is broad enough to include any form of protection that may have been necessary to make effectual the exclusive right. It would do violence to these broad expressions to uphold the contention that the author's rights may be limited to withholding the right secured under his copyright during the term thereof, but if he makes any use of it, private parties may make similar use of it upon the payment of a fixed rate scheduled by Congress.

In the case of Grant v. Raymond (6 Pet. 241) Chief Justice Marshall, in a few very succinct sentences, clearly states the supreme object sought to be attained by this clause of the Constitution; the means by which the ultimate object might be accomplished; the nature of the consideration paid by the people to the inventor or author for securing the right to the free enjoyment of his work after the expiration of the period of monopoly, as follows:

"To promote the progress of useful arts is the interest and policy of every enlightened government. It entered into the views of the framers of our constitution, and the power to promote the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and discoveries' is among those expressly given to Congress. This subject was among the first which followed the organization of our Government. It was taken up by the first Congress at its second session, and an act was passed authorizing a patent to be issued to the. inventor of any useful art, etc., on his petition, granting to such petitioner, his heirs, administrators or assigns, for any term not exceeding 14 years, the sole and exclusive right and liberty of making, using, and vending to others to be used, the said invention or discovery.' The law further declares that the patent shall be good and available to the grantee or grantees by force of this act, to all and every intent and purpose herein contained.' The amendatory act of 1793 contains the same language, and it can not be doubted that the settled purpose of the United States has ever been, and continues to

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be, to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received; if this can be done without transcending the intention of the statute, or countenancing acts which are fraudulent or may prove michievous. The public yields nothing which it has not agreed to yield; it receives all which it has contracted to receive. The full benefit of the discovery, after its enjoyment by the discoverer for fourteen years, is preserved; and for his exclusive enjoyment of it during that time the public faith is pledged. That sense of justice and of right which all feel, pleads strongly against depriving the inventor of the compensation thus solemnly promised

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The consideration to be paid, he very clearly sets forth on pages 243-244, as follows:

"The great object and intention of the act is to secure to the public the advantages to be derived from the discoveries of individuals, and the means it employs are the compensation made to those individuals for the time and labor devoted to these discoveries, by the exclusive right to make. use, and sell, the things discovered for a limited time. The communication of the discovery to the public has been made in pursuance of law, with the intent to exercise a privilege which is the consideration paid by the public for the future use of the machine."

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the ex

Justice Story, in Pennock v. Dialogue (2 Pet. 1, p. 16), discussed clusive right" mentioned in this constitutional provision. He says; "The Constitution of the United States has declared that Congress shall have power to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.' It contemplates, therefore, that this

exclusive right shall exist but for a limited period, and that the period shall be subject to the discretion of Congress."

He points out the objects to be attained by the mandate in the following language:

"While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius, the main object was 'to promote the progress of science and useful arts'; and this could be done best by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible, having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure, and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any further use than what should be derived under it during his fourteen years, it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries.

"A provision, therefore, that should withhold from an inventor the privilege of an exclusive right, unless he should, as early as he should allow the public use, put the public in possession of his secret and commence the running of the period that should limit that right, would not be deemed unreasonable. It might be expected to find a place in a wise prospective legislation on such a subject. If it was already found in the jurisprudence of the mother country, and had not been considered inconvenient there, it would not be unnatural that it should find a place in our own."

From the above statement we deduct the following conclusions:

(a) That the purpose of granting the exclusive right by the Constitution was to protect the author or inventor from the danger of competition;

(b) That the effect of the granting of the exclusive right was to exclude the public from any use or enjoyment of the copyrighted work or patented article, during the limited time prescribed by Congress; that for the privilege of the exclusive right granted to him, the copyright owner or patentee must make full and free disclosure of his copyrighted or patented work, at the earliest

possible time, so the statutory period of protection should commence to run as early as possible, and to the end that the public may have the full benefit thereof after the expiration of the term of the monopoly.

This is the consideration demanded by the public, for the protection during the time mentioned in the patent." (Wheaton v. Peters, 8 Pet., p. 684.) In Lithographic Co. v. Sarony (111 U. S. 53, p. 57) the Supreme Court says: "The construction placed upon the Constitution by the first [copyright] act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive."

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* * The First Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the author or authors of any * book or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing, and vending the same for the period of 14 years from the recording of the title thereof in the clerk's office, as afterwards directed.' (Stat. 124; 1.) * The second section of an act to amend this act, approved April 29, 1802 (2 Stat. 171), enacts that from the 1st day of January thereafter, he who shall invent and design * * * any historical or other print, or prints, shall have the same exclusive right, for the term of 14 years from the recording the title thereof, as prescribed by law."

As new inventions were developed and new reproductive processes introduced, Congress extended the copyright control of the author to embrace such modern reproductive processes, and conferred upon the author the exclusive right to utilize his work in every case, with the exception of mechanical musical devices described in the act of 1909.

In 1831, the acts of 1790 and 1802 were repealed, and the law relating to copyright was embodied in one statute.

In December, 1830, Mr. Ellsworth from the Committee on the Judiciary, made to Congress a report in the following language (Drone on Copyright, p. 90): "Your committee believe that the just claims of authors require from our legislation a protection not less than what is proposed in the bill reported. Upon the first principles of proprietorship in property, an author has an exclusive and perpetual right, in preference to any others, to the fruits of his labor. Though the nature of literary property is peculiar, it is not the less real and valuable. If labor and effort in producing what before was not possessed or known will give title, then the literary man has title perfect and absolute, and should have his reward: He writes and he labors as assiduously as does the mechanic or husbandman. The scholar who secludes himself, and wastes his life, and often his property, to enlighten the world, has the best rights to the profits of those labors; the planter, the mechanic, the professional man, can not prefer a better to what is admitted to be his own." (Reports of Committees, 21st Cong., 2d sess. (1830-31) Rept. No. 3.)

That report is important because it indicates the understanding of the committee of the nature and character of copyright.

Henry Clay's report, made by a select committee, consisting of Clay, Preston, Buchanan, Webster, and Ewing, in favor of a national copyright, during the second session of the Twenty-fourth Congress, on February 16, 1837, submitted with Senate bill 223, correctly states the understanding of the principles of copyright that prevailed from the time of the adoption of the Constitution to this day. In that report, among other things, he says:

"That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genuis is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labors for the means of subsistence; and are frequently, from the nature of their pursuits, or from the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law."

All that the Government grants under a copyright is the power to exclude others from making any profitable use of the work during the term of the copyright.

An erroneous impression prevails that Congress, by the granting of a copyright, creates a property right in the author's work. It does nothing of the kind. It merely excludes others from making any profitable use of the work during the term prescribed by the statute.

The principle is stated by Mr. Chief Justice Taft in Crown Co. v. Nye Tool Works (261 U. S., p. 34), as follows:

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"The fullest and most satisfactory discussion of the subject is found in Continental Paper Bag Co. v. Eastern Paper Bag Co., supra. In that case it was sought to defeat a suit by a patent-owner for infringement of a patent on the ground that he was not entitled to ask a court of equity to aid him in protecting the grant of the patent to him by the Government, because he had failed and neglected ever to use the patent himself or to allow anybody else to do so and therefore had not rendered to the public the benefit and consideration for which the patent was granted. This court held that the benefit which the Government intended to secure was not the making or use of the patent for the benefit of the public during the seventeen years of the grant, except as the patentee might voluntarily confer it from motives of gain, but only the benefit of its public use after the grant expired. It is the fact that the patentee has invented or discovered something useful and thus has the common law right to make, use and vend it himself which induces the Government to clothe him with power to exclude everyone else from making, using, or vending it. In other words, the patent confers on such common-law right the incident of exclusive enjoyment and it is the common law right with this incident, which a patentee or an assignee must have. That is the implication of the descriptive words of the grant the exclusive right to make, use, and vend the invention.' The Government is not granting the common law right to make, use and vend, but it is granting the incident of exclusive ownership of that common law right, which can not be enjoyed save with the common law right. A patent confers a monopoly. So this court has decided in the Paper Bag case, supra, and in many other cases. The idea of monopoly held by one in making, using and, and vending, connotes the right in him to do that thing from which he excludes others."

The idea thus expressed is illustrated in United States v. Bell Telephone Co. (167 U. S. 224, p. 238), where the difference between patents for land and patents for inventions is clearly drawn. The court says:

"While the same term is used, the same grantor is in each, and although each vests in the patentee certain rights, yet they are not in all things alike. The patent for land is a conveyance to an individual of that which is the absolute property of the Government and to which, but for the conveyance, the individual would have no right or title. It is a transfer of tangible property; of property in existence before the right is conveyed; of property which the Government has the full right to dispose of as it sees fit, and may retain to itself or convey to one individual or another; and it creates a title which lasts for all time. On the other hand, the patent for an invention is not a conveyance of something which the Government owns. It does not convey that which, but for the conveyance, the Government could use and dispose of as it sees fit, and to which no one save the Government has any right or title except for the conveyance. But for the patent, the thing patented is open to the use of anyone. Were it not for this patent anyone would have the right to manufacture and use the Berliner transmitter. It was not something which belonged to the Government before Berliner invented it. It was open to the manufacture and use of anyone, and anyone who knew how could contrive, manufacture, and use the instrument. It conveyed to Berliner, so far as respects rights in the instrument itself, nothing that he did not have theretofore. The only effect of it was to restrain others from manufacturing and using that which he invented. After his invention he could have kept the discovery secret to himself. He need not have disclosed it to anyone. But in order to induce him to make that invention public, to give all a share in the benefits resulting from such an invention, Congress, by its legislation, made in pursuance of the Constitution, has guaranteed to him an exclusive right to it for a limited time: and the purpose of the patent is to protect him in this monoply, not to give him a use which, save for the patent, he did not have before, but only to separate to him an exclusive use. The Government parted