But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Anne, c. 19 (amended by statute 15 Geo. III. c. 53) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; (i) and hath also protected that property by additional penalties and forfeitures: directing further, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: (29) and a similar privilege is extended to the inventors

(i) By statute 15 Geo. III. c. 53, some additional privileges in this respect are granted to the univer

sities and certain other learned societies.

mode of ascertaining a moral right, I conceive, is to inquire whether it is such as the reason-the cultivated reason-of mankind must necessarily assent to.

No proposition seems more conformable to that criterion than that every one should enjoy the reward of his labor,-the harvest where he has sown, or the fruit of the tree which he has planted.

And if any private right ought to be preserved more sacred and inviolable than another, it is where the most extensive benefit flows to mankind from the labor by which it is acquired. Literary property, it must be admitted, is very different in its nature from a property in substantial and corporeal objects, and this difference has led some to deny its existence as property; but whether it is sui generis [Of a particular kind], or under whatever denomination of rights it may more properly be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations.

Thus considered, an author's copyright ought to be esteemed an inviolable right, established in sound reason and abstract morality.

No less than eight of the twelve judges were of opinion that this was a right allowed and perpetuated by the common law of England; but six held that the enjoyment of it was abridged by the statute of queen Anne, and that all remedy for the violation of it was taken away after the expiration of the terms specified in the act; and agreeable to that opinion was the final judgment of the lords. See the arguments at length of the

judges of the King's Bench and the opinions of the rest in 4 Burr. 2303.

Before the union of Great Britain and Ireland, in 1801, no statute existed to protect copyright in Ireland; but now, by the stat. 41 Geo. III. (U. K.) c. 107, provisions similar to those in the statute of Anne are re-enacted, and extended to the whole of the united kingdom. These provisions are also enforced by additional remedies and increased penalties, and an action on the case for damages is specifically given to the party injured. Previous to this act, men of genius and learning in Ireland were stimulated only by the incentive which lord Cainden splendidly describes in the conclusion of his argument against literary property. "Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions. Fourteen years are too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labor: he knew that the real price of his work was immortality, and that posterity would pay it."-CHRISTIAN.

In Wheaton v. Peters, 8 Peters, 591, the question of copyright was discussed by counsel with great learning and ability, and a majority of the Supreme Court held that an author had no common-law copyright in his published works; that if such a common-law right ever existed in England, yet there was no common law of the United States on the subject; and that there was no evidence or presumption that any such common-law right had ever been introduced or adopted in Pennsylvania where the controversy in that case arose; and that as in England, since the statute of 8 Anne, an author's exclusive right of literary property in his published works was confined to the period limited by the statute, so in that case the author's right depended upon the acts of Congress of 1790 and 1802. 2 Kent's Com. 376, n.-SHARSWOOD.

(29) The statute of 54 Geo. III. c. 156 enacts that the author of any book printed and published subsequently to the said act, and the assignee or assigns of such author, shall have the sole liberty of printing and reprinting such book for the full term of twentyeight years, to commence from the day of first publishing the same; and also, if the author shall be living at the end of that period, for the residue of his natural life; and that if any person, in any part of the British dominions, shall, within the terms and times granted and limited by the said act as aforesaid, print, reprint, or import, or cause to be printed, reprinted, or imported, any such book, without the consent of the author or other proprietor of the copyright first had in writing, or, knowing the book to be so printed, reprinted, or imported without such consent, shall sell, publish, or expose to

of prints and engravings, for the term of eight-and-twenty years, by the statutes 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages,

sale, or cause to be sold, published, or exposed to sale, or shall have in his possession for sale, any such book, without such consent first had and obtained as aforesaid, then such offender shall be liable to a special action on the case, at the suit of the author or other proprietor of the copyright of such book, and the author shall recover such damages as the jury on the trial of such action, or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit; and every such offender shall also forfeit such book or books, and shall deliver the same to the author or other proprietor of the copyright thereof, and the said author or proprietor shall make waste paper of such book or books; and every offender shall also forfeit three-pence for every sheet thereof, either printed or printing, or published or exposed to sale: provided that all actions, suits, bills, indictments, or informations for any offence committed against the said act shall be brought, sued, and commenced within twelve months next after such offence committed. The title to the copyright of books is directed by the act to be entered at Stationers' hall, within a limited time, under a penalty of forfeiture of five pounds, together with eleven times the price at which such books shall be sold or advertised for sale: provided that no failure in making such entry shall in any manner affect the copyright, but shall only subject the person making default to the penalty aforesaid under

the said act.

Whenever an action at the suit of the author would lie against a person pirating books, (Lord Byron v. Johnston, 2 Meriv. 29. Hogg v. Kirby, 8 Ves. 225. Stockdale v. Onwhyne, 5 Barn. & Cress. 177,) or music, (Platt v. Button, 19 Ves. 447. Clementi v. Walker, 2 Barn. & Cress. 861,) or prints, or charts, (Blackwell v. Harper, Barnard, Cha. Rep. 120. Wilkins v. Aikin, 17 Ves. 425. Harrison v. Hogg, 2 Ves. Jr. 323. Longman v. Winchester, 16 Ves. 271. Newton v. Cowie, 4 Bingh. 245,) a court of equity will grant an injunction to restrain a fraud on the author's property; but, where the character of the publication is such that no damages could be recovered in respect thereof at law, equity will refuse to interpose. Lawrence v. Smith, Jacob's Rep. 472. Walcot v. Walker, 7 Ves. 2. Southey v. Sherwood, 2 Meriv. 440. Lord and Lady Percival v. Phipps, 2 Ves. & Bea. 26. Gee v. Pritchard, 2 Swanst. 415. The plaintiff must also, in order to entitle him to an injunction, show the property in the pirated work to be clearly vested in himself, either as the author, or as an assignee, for his own benefit, or in trust for others; and this interest must be distinctly stated in the bill; for the injunction ought to be warranted by what appears in the bill, not by what is brought forward merely by affidavit. Nicol v. Stockdale, 3 Swanst. 689.

The collection of materials may establish a claim to copyright in a work, notwithstanding the subject may be obvious to all mankind; and an injunction will issue to stop the publication of a work which is a servile copy of a preceding one, with merely colorable alterations. Matthewson v. Stockdale, 12 Ves. 273, 276. Butterworth v. Robinson, 5 Ves. 709. Tonson v. Walker, 3 Swanst. 679. The case would be different if the new work contained not only alterations, but corrections and improvements of the original work, (Cary v. Faden, 5 Ves. 26;) and such additions and corrections may properly be made the subject of copyright. Cary v. Longman & Rees, I East, 380. But it will not be permitted that one man should, under pretence of quotation, in fact publish another's work and defraud him of the fruit of his labors, (Wilkins v. Aikin, 17 Ves. 424;) for, although an abstract or fair abridgment of a publication is allowable, (Dodsley v. Kinnersley, Ambl. 403. Gyles v. Wilcox, Barnard, Cha. Rep. 368. Bell v. Walker & Debrett, I Br. 451. Whittingham v. Wooler, 2 Swanst. 431,) a colorable abstract will be restrained. Butterworth v. Robinson, 5 Ves. 709. Carnan v. Bowles, I Cox, 285. Macklin v. Richardson, Ambl. 696. Gyles v. Wilcox, 2 Atk. 142.

No property can be acquired in any article copied, in the same language, from a prior work, (Barfield v. Nicholson, 2 Sim. & Stu. 1;) but a translation is as much entitled to protection as an original production. Wyatt v. Bernard, 2 Ves. & Bea. 78.

Forms of indictments, it has been decided, cannot be the subjects of copyright; nor can a statement of the evidence necessary to support indictments, and subjoined thereto, be so appropriated. And further, though an author, after the publication of one or more editions of his work, sells the copyright, with an undertaking to prepare and edit the subsequent editions of the work at a fixed price, he may publish any new matter on the same general subject in a separate publication on his own account, notwithstanding the insertion of such new matter in the subsequent editions of the work of which he has sold the copyright may be absolutely necessary in their proper completion. Sweet v. Archbold,- -so held by the vice-chancellor in Hil. T. 1828, and by the lord chancellor during the sittings after that term.

No one who chooses to copy and publish a specification of patents can thereby acquire a right to restrain another from copying the same; for these are common property. Wyatt v. Barnard, 3 Ves. & Bea. 78.

with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of

When a plaintiff has permitted repeated infringements of his copyright for a length of time, equity will not interfere (by injunction, at any rate, whether it may be proper to direct an account to be kept or not) before the right is determined at law. Button, 19 Ves. 448. Rundell v. Murray, Jacob's Rep. 316.

Platt v.

Whether the act of publication abroad makes a work at once publici juris [Of public right] may be very questionable; but there can be no doubt that, where an author prints and publishes abroad only, or where he does not take prompt measures to publish here, he cannot, after a reasonable time for his publishing here has elapsed, and after some other person, in the regular and fair course of trade, has published the work in this country, sustain an injunction against such person. Clementi v. Walker, 2 Barn. & Cress. 866, 870.

A parol assignment of the copyright of a work may not be sufficient, perhaps, to give the assignee the privileges conferred by the legislature upon the author. Power v. Walker, 3 Mau. & Sel. 9. But when a publisher has been induced by such assignment to employ his capital and attention upon a work, withdrawing them from other matters in which they might possibly have been more profitably employed, and when the author has acquiesced in seeing his parol assignment acted upon for a length of time, a court of equity, even if it acknowledged the author's strict right, would probably think his conduct entitled him to no summary relief by injunction, and would leave him to such remedy as he might have at common law. Rundell v. Murray, Jacob's Rep. 316.

The proprietor of a copyright must file a separate bill against each bookseller taking copies of a spurious edition for sale; for there is no privity between such parties, and the defendants may justify their several acts upon totally dissimilar grounds. Dilly v. Doig, 2 Ves. Jr. 487. Berke v. Harris, Hardr. 337.

In cases of alleged piracy of literary property, a reference is usually directed to the Master, (v. Leadbetter, 4 Ves. 681. Nicol v. Stockdale, 3 Swanst. 689;) but, in order to save expense, the court itself will sometimes compare the two works. Whittingham v. Wooller, 2 Swanst. 431.

Parts of this note and the next are extracted from 2 Hoveden on Frauds, 147, 152. As to the kind of prerogative copyright subsisting in certain publications, as Bibles, liturgies, acts of parliament, proclamations, and orders of council, see post, p. 410.

Mr. Christian observes that "the principal differences in these three statutes concerning prints seem to be these: the 8 Geo. II. gives an exclusive privilege of publishing to those who invent or design any print for fourteen years only; the 7 Geo. III. extends the term to twenty-eight years, absolutely, to all who either invent the design or make a print from another's design or picture; and those who copy such prints within that time forfeit all their copies,-to be destroyed, -and five shillings for each copy. The 17 Geo. III. gives the proprietor an action to recover damages and double cost for the injury he has sustained by the violation of his right."-CHITTY.

But this act has now been repealed; and, by several recent statutes, the law of copyright has been placed upon a different footing. By the statute 5 & 6 Vict. c. 45, the protection of the law is extended to the period of forty-two years from the first publication of a work or the period of the life of the author, and seven years following, whichever of these two terms may be the longer. And the copyright of a book published after the author's death endures for forty-two years from the publication. With regard the ency clopædias, reviews, and periodicals, the act provides that the copyright of articles supplied to such works shall belong to the proprietors of the works for the same period as is given to the authors of books whenever the article has been written on the terms that the copyright shall belong to the proprietor; but the copyright does not vest until payment has been actually made.

In the absence of any agreement, after twenty-eight years from the publication of an article the right of publishing it in a separate form reverts to the author for the remainder of the term of forty-two years given by the statute. During the twenty-eight years thus allowed to the publisher in the absence of an agreement, the consent of the author or his assigns must be obtained to enable the proprietor of the encyclopædia, reviews, or periodical to publish the article in a separate form. The statute also reserves to the author of any dramatic piece or musical composition, and to his assigns, the sole right of representation or performance in public for the same term as is appointed for the duration of copyright in books. These rights extend to foreigners residing in this country. It has also been decided that a foreigner residing abroad is entitled to the copyright of a work composed by him which has been first published in this country. Boosey v. Davidson, 13 Q. B. 257. Boosey v. Jeffries, 6 Ex. 580.-KERR.

By the act of Congress 4 Feb. 1831, (4 Stat. 436. 4 Story's Laws, 2221,) which has superseded and repealed all former laws on the subject, the authors of books, maps, charts, and musical compositions, and the inventors and designers of prints, cuts and engravings, being citizens of the United States or residents therein, are entitled to the exclusive right 869

BOOK II.-26.

monopolies, 21 Jac. I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held that a temporary property therein becomes vested in the king's patentee. (k) (30)

(k) 1 Vern. 62.

of printing, reprinting, publishing, and vending them for the term of twenty-eight years from the time of recording the title thereof; and if the author, inventor, or designer, or any of them, where the work was originally composed and made by more than one person, be living, and a citizen of the United States, or resident therein at the end of the term, or, being dead, shall have left a widow or child or children, either or all of them living, she or they are entitled to the same exclusive right for the further term of fourteen years on complying with the terms prescribed by the act of Congress. 2 Kent's Com. 373.-SHARSWOOD.

(30) When the crown, on behalf of the public, grants letters-patent, the grantee thereby enters into a contract with the crown, in the benefit of which contract the public are participators. Under certain restrictions, affording a reasonable recompense to the grantee, the use of his invention, improvement, and employment of capital is communicated to the public. If any infringement of a patent be attempted after there has been an undisputed enjoyment by the patentee under the grant for a considerable time, courts of equity will deem it a less inconvenience to issue an injunction until the right can be determined at law than to refuse such preventive interference merely because it is possible the grant of the crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be that the patentee must be ruined by litigation. Harmer v. Plane, 14 Ves. 132. Universities of Oxford and Cambridge v. Richardson, 6 Ves. 707. Williams v. Williams, 3 Meriv. 160. But if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill v. Thompson. 3 Meriv. 624.

The grant of a patent, as already stated, is in the nature of a purchase for the public, to whom the patentee is bound to communicate a free participation in the benefit of his invention at the expiration of the time limited. Williams v. Williams, 3 Meriv. 160. If, therefore, the specification of a patent be not so clear as to enable all the world to use the invention, and all persons of reasonable skill in such matters to copy it, as soon as the term for which it has been granted is at an end, this is a fraud upon the public, and the patent cannot be sustained. Newbury v. James, 2 Meriv. 451. Ex. parte Fox, I Ves. & Bea. 67. Turner v. Winter. I T. R. 605. Harmer v. Plane, II East, 107.

Nor

The enrollment of a patent cannot be dispensed with upon the ground that, if the specification is made public, foreigners may take advantage of the invention; for the king's subjects have a right to see the specification. Ex parte Koops, 6 Ves. 599. can the date of the patent be altered after it is once sealed in order to enlarge the time (four months) allowed by the statute for the enrolment of specifications, even though the case may be a hard one and the delay has arisen from innocent misapprehension. Ex parte Beck, I Br. 577. Ex parte Koops, ubi supra. And if a patentee seek by his specification more than he is strictly entitled to, his patent is thereby rendered ineffectual, even to the extent to which he would otherwise be entitled. Hill v. Thompson, 3 Meriv. 629. Harmer v. Plane, 14 Ves. 135.

When a person has invented certain improvements upon an engine, or other subject for which a patent has been granted, and those improvements cannot be used without the original engine, at the expiration of the patent for such original engine a patent may be taken out for the improvements; but before that time there can be no right to make ase of the substratum protected by the first patent. Ex parte Fox, 1 Ves. & Bea. 67. And where industry and ingenuity have been exerted in annexing to the subject of a patent improvements of such a nature that their value gives an additional value to the old machine, though a patent may be obtained for such improvements, yet, if the public choose to use the original machine without the improvements, they may do so without any restriction at the expiration of the original grant. If the public will abstain from the use of the first invention, in consideration of the superior advantages of the improved instrument, it is well; but the choice must be left open. Harmer v. Plane, 14 Ves. 134.-CHITTY.

The Patent-Law Amendment Act (15 & 16 Vict. c. 83) now regulates the terms upon which letters-patent may be granted. By this statute, the fees which it was formerly necessary to pay upon obtaining a patent have been greatly reduced, and the payment of them is spread over the space of several years; so that, if an invention be not found lucrative, the patent may be discontinued and the fees saved. Letters-patent granted

CHAPTER XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

A SECOND method of acquiring property in personal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an ancient grant.

Such, in the first place, are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis (1) or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former book. In these the king acquires and the subject loses a property the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.

*In these several methods of acquiring property by prerogative [*409 there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either

under this act contain a condition that the same shall be void at the end of three years unless a fee of 40l. with 10l. stamp duty, be then paid; and again at the end of sever years from the grant, unless a fee of Sol. and 20/. stamp duty be paid.

The statute 5 & 6 Will. IV. c. 83 authorized a prolongation of the original term, not exceeding seven years, to be given, on the recommendation of the Judicial Committee of the privy council; and, by statute 7 & 8 Vict. c. 69, a further term, not exceeding four teen years, may be granted, if it be shown that the inventor has not been remunerated during the former period for the expense and labor incurred in perfecting his invention. -KERR.

By the act of Congress of July 4, 1836, c. 357, (4 Story's Laws, 2504,) all former laws of the United States on the subject of patents are repealed, and the patent system re-enacted with important amendments. The Patent-Office is now attached to the Department of the Interior, (Act March 3, 1849. 9 Statutes, 395,) and a Commissioner of Patents appointed. Applications for patents are to be made in writing to the commissioner by any person having discovered or invented any new and useful art, machine, manufac ture, or composition of matter, or any new and useful improvement on art, machine, man ufacture, or composition of matter, not known or used by others before his discovery of invention thereof, and not, at the time of his application for a patent, in public use or sale, with his consent or allowance as the inventor or discoverer. It must be accompanied with specifications, drawings, specimens of ingredients, and models, according to the nature of the case. It is the duty of the commissioner to examine the alleged new invention or discovery, and, if satisfied that the applicant is entitled under the law, he is to issue a patent in the name of the United States to him, his heirs, executors, administra tors, or assigns, for the exclusive right of making, using, and vending the same for & term not exceeding seventeen years. The patent may, in special cases and in the discretion of the board of commissioners, be renewed and extended to the further term of seven years. If the application be rejected and the applicant persist in his claim, he is to make his oath or affirmation anew; and, if the specification and claim be not so modified as to remove the objection, the applicant may appeal to a board of three examiners, to be appointed by the Secretary of the Interior; and the Commissioner of Patents is to be governed by their decision. 2 Kent's Com. 367.-SHARSWOOD.

(1) Black's Law Dict.