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position had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published, and sold the same without his consent?

2. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward re-print and sell, for his own benefit, such book or literary composition, against the will of the author?

3. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author by the said statute precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby?

Ordered, That the judges do deliver their opinions upon the following questions; viz.

4. Whether the author of any literary composition and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?

5. Whether this right is any way impeached, restrained, or taken away by the statute 8th Anne?

Whereupon, the judges desiring that some time might be allowed them for that purpose,

Ordered, That the further consideration of this cause be adjourned till Tuesday next, and that the judges do then attend, to deliver their opinions upon the said questions.

Die Martis, 15 Februarii, 1774.

The Lord Chancellor acquainted the house, that the judges differed in their opinions upon the said questions.

Ordered, That the judges present do deliver their opinions upon the said questions, seriatim, with their reasons.

...

Then Mr. Justice ASHHURST delivered the opinion of Mr. Justice BLACKSTONE (who was absent, being confined to his room with the gout) upon the said questions. And

1. Upon the first question, delivered his opinion - That at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same, without his consent. And gave his reasons.

2. Upon the second question, delivered his opinon - That the law did not take away his right, upon his printing and publishing such book or literary composition; and that no person might afterward re-print , and sell, for his own benefit, such book or literary composition, against the will of the author. And gave his reasons.

3. Upon the third question, delivered his opinion - That such action at common law is not taken away by the statute of 8th Anne; and that an author, by the said statute, is not precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby. And gave his reasons.

4. Upon the fourth question, delivered his opinion - That the author of any literary compositions and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law. And gave his reasons.

5. Upon the fifth question, delivered his opinion - That this right is not any way impeached, restrained, or taken away by the statute of 8th Anne. And gave his reasons.

So that of the eleven judges, there were eight to three upon the first question; seven to four upon the second; and five to six upon the third.

It was notorious, that Lord MANSFIELD adhered to his opinion; and therefore concurred with the eight, upon the first question; with the seven upon the second; and with the five upon the third. But it being very unusual (from reasons of delicacy) for a peer to support his own judgment, upon an appeal to the House of Lords, he did not speak.

And the Lord Chancellor seconding Lord CAMDEN'S motion "to reverse," the decree was reversed.

The argument upon the third question turned greatly upon the meaning of the proviso in the 8th of Queen Anne, which saves the right of the universities. It is the 9th clause, and runs in these words - "Provided that nothing in this Act contained shall extend, or be construed to extend, either to prejudice or confirm any right that the said universities, or any of them, or any person or persons, have, or claim to have, to the printing, or re-printing, any book or copy already printed, or hereafter to be printed.'

192. EATON S. DRONE. A Treatise on the Law of Property in Intellectual Productions. (1879. Introduction, pp. 1, 42-48, 54-69, in part.) 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.1 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. This has since

1 Millar v. Taylor, 4 Burr. 2303.

2 Donaldson v. Becket, 4 Burr. 2408. Eleven judges were ordered to give their opinions on the same vital questions that had been exhaustively reviewed

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. Some of the ablest jurists of England and America have contended 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..

The only question decided in Donaldson v. Becket, in conformity with the expressed opinions of a majority of the judges, was that the common-law copyright in a book after publication in print was taken away by the statute of Anne. On this point alone the House of Lords can be rightly said to have overruled the judgment in Millar v. Taylor. Two-thirds of the judges who advised the Lords, or three-fourths including Lord Mansfield, held to the doctrine that, in the absence of any statute, literary property exists by the common law, and is not lost or prejudiced by publication. There is nothing in the judgment of the House of Lords to unsettle this doctrine, or to overrule the authority of Millar v. Taylor as far as it affirmed it. On the other hand, the decision in Donaldson v. Becket, that common-law copyright in published works was taken away by the statute of Anne, necessarily implied the existence of that right."

The judgment rendered of the House of Lords in 1774 has continued to

and settled, five years before, by the King's Bench. Ten were of opinion that at common law the author of an unpublished literary composition had the sole right of publishing it for sale, and might bring an action against any person who published the manuscript without his consent. One dissented from this view.

Eight maintained that by the common law the author's exclusive rights were not lost or prejudiced by publication; in other words, that copyright in a published work existed by the common law. Three believed that publication was an abandonment of the common-law property..

Five maintained that the statute of Anne did not destroy, abridge, or in any way prejudice the common-law property in a published work, and did not deprive the author of his common-law remedies. Six contended that the commonlaw right, after publication, was taken away by the statute, to which alone the author must look for protection.

Wheaton v. Peters, 8 Pet. 591.

2 Referring, in the House of Lords, to the judgment in Donaldson v. Becket, and the different opinions expressed by the judges on the questions, whether there was copyright at common law, and whether it had been taken away by the statute, Lord Brougham said: "This House, however, reversed the decree under appeal, in accordance with the opinion given on the main point by the majority of the judges; and, upon the general question of literary property at common law, no judgment whatever was pronounced." Jefferys v. Boosey, 4 H. L. C. 961.

represent the law; but its soundness has been questioned by very high authorities. . . .

In the United States, the authorities have been divided not less than in England, regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, it became the duty of the Supreme Court of the United States, in the case of Wheaton v. Peters,1 to declare the meaning of the law of 1790, and to determine the same question that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774; viz., whether copyright in a published work existed by the common law, and, if so, whether it had been taken away by statute.

This judgment, like that of the House of Lords in Donaldson v. Becket, which was followed, rests on a divided opinion of the judges. Three agreed with Mr. Justice McLean, who delivered the opinion of the Court, two dissented, and one was absent.

...

The judgment of the Court was based on two grounds: 1. That the common law [copyright] of England did not prevail in the United States; 2. that in England it had been decided that the common-law property in published works had been taken away by statute. 1. The first position rested on a foundation of sand, which has since been swept away. . . . The doctrine is now well settled in this country, that a complete property in unpublished works is secured by the common law. This was admitted by the Supreme Court in Wheaton v. Peters. It has since been repeatedly affirmed by the same tribunal, by the Circuit Court of the United States, and by every State Court in which the question has been raised. If the common law thus prevails in the United States with reference to unpublished productions, there is no principle, independently of the statute, by which it can be held not to prevail in the case of published works. 2. The controlling question in Wheaton v. Peters was whether this common-law right, after publication, had been taken away by the statute of 1790. The doctrine had been settled in England, that copyright in a published work existed by the common law. Donaldson v. Becket decided simply that this right had been taken away or superseded in England by the Act of Anne. But this statute did not change or affect the common law in the United States, for the obvious reason that the statute had no operation here. Whether Congress intended to take away this right, whether the statute of 1790 could rightly be construed to take it away, was an open question in this country. . . . In holding that the common-law right, if it existed in this country, had been taken away by statute, the Court simply followed the doubtful and disputed precedent of the House of Lords, without testing its soundness.

193. CHARLES READE. Readiana: The Rights and the Wrongs of Authors. (1882. 2d, 3d, and 6th Letters, in part.) Copyright and stageright, and many other recent rights, grew out of two old principles of common law. . . . The first old principle is this: Productive and unsalaried labor, if it clash with no property, creates a property. All the uncaught fish in the sea belong to the public. Yet every caught fish comes to hand private property, because productive labour, when it clashes with no precedent title, creates property at common law.

The second old principle is this. Law abhors divestiture, or forfeiture of property.

18 Pet. 591, 654.

See post, p. 101.

By the first principle - viz., that productive labour not clashing with property creates property - a writer or his paymaster acquires the sole right to print the new work for sale. All lawyers out of Bedlam go thus far with me. By the second the proprietor acquires nothing at all; he merely retains for ever that sole right to print which he has acquired by productive labour. . . . There are three theories of copyright at common law:

The washerwoman's theory.

The lawyer's theory.

The mad sophist's theory.

The Washerwoman's Theory.

That there can be no incorporeal property at common law. An author's manuscript is property. If another misappropriates it, and prints the words, that is unlawful; but the root of the offence is misappropriating the material object, the author's own written paper. Thus, if a hen is taken unlawfully, to sell the eggs she lays after misappropriation is unlawful.

The Lawyer's and the Sophist's theory both rest on a fundamental theory opposed to the above, viz., that an author's mental labour, intellectual and physical, creates a mixed property, words on paper; that the words are valuable as vehicles of ideas, and are a property distinct from the paper; and only the author has a right to print them under any circumstances. Examples: Pope wrote letters to various people: they paid the postage; the paper, and the inked forms of the letters, became theirs, and ceased to be Pope's. Curll possessed this corporeal property lawfully. Yet Pope restrained the printing. "Pope v. Curll.'' . .

The Mad Sophist's theory rejects with us the washerwoman's theory, and concedes that an author has, as common law, intellectual property, or copyright, thus abridged he has the sole right, under any circumstances whatever, to print his unprinted words. But, when he publishes, he sells the volumes without reserve; he cannot abridge his contract with the reader and retain the sole right under which he printed. He has abandoned his copyright by the legal force of his act. . . .

The four main delusions that set the public heart against authors' rights are: 1. The Aetherial Mania. - That an author is a disembodied spirit, and so are his wife and children. That to refuse an unsalaried fisherman an exclusive title to the fish he has laboured for in the public sea would starve the fisherman and his family; but the same course would not starve the unsalaried author, his wife, and his children. . . .

2. An Historical Falsehood.- That intellectual property is not founded on the moral sense of mankind, nor on the common law of England, but is the creature of modern statutes, and an arbitrary invasion of British liberty. This falsehood is as dangerous as it looks innocent. It crosses the Atlantic, and blunts the American conscience: and it even vitiates the judicial mind at home. It works thus down at Westminster. The judges there hate and despise Acts of Parliament. . . . Therefore, when once they get into their heads that a property exists only by statute, that turns their hearts against the property, and they feel bound to guard common-law liberties against the arbitrary restrictions of that statute. . . .

3. That the laws protecting intellectual property enable authors to make more money than they deserve. .

4. The worst delusion of all is, that what authors, and the Legislature, call intellectual property is neither a common-law property nor a property created by statute, but a monopoly created by a statute.

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