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meaning, it may not be amiss, to give Lord Mans-y were protected, and were not viewed in the same field's definition of the technical meaning of the light as a trade, manufacture, or mechanical inword “copy,” as understood at that time. In the ventions. case of Millar and Taylor, to which I shall pre- I have been thus minute, I fear tediously so, as sently refer the reader, he says:
to the true nature of Copyright, because it is a mat"I use the word 'copy' in the technical sense in which ter of vital importance to the interests and the
should be placed upon that name, or term, has been used for ages, to signify an incor- dignity of authors, that poreal right to the sole printing and publishing of somewhat the proper ground of right and justice; and not be intellectual, communicated by letters." “ The property in deemed as a “bounty or gratuity,” when in fact it this copy is equally detached from the MS., or any physical is their own by right and law, in the enjoyment of existence whatever."
which, so far from having been fostered by legislaAnd again,
tion, they have been wronged and despoiled ; and " The property in the copy thus narrowed, may equally go like Sampson of old, made the "hewers of wood down from generation to generation, and possibly continue and drawers of water" for the benefit of their legal forever, though neither the author nor his representative, Philistines, who have blinded their eyes and fetshould have any MS. whatsoever of the work, original, du
tered their limbs. The act of 8 Ann was intended plicate or transcript."
only as declaratory of the Common Law, having So that Luther, Milton and Lord Mansfield, must been passed upon the prayer of the publishers and all have been mistaken, if J. B. D.'s statement be
proprietors of Copyright, who wished for a more correct, that
summary and full remedy than was attainable at Copyright is in fact the mere creature of legislation, Common Law, and in 1710 that act was passed, produced and fashioned exclusively with a view to the which for a long time was regarded only as declainterest of the community where it is established," &c.
ratory of the Common Law, but which finally was Justice Willes also in the same celebrated case adjudged to have superseded it, though this thus speaks :
decision was in opposition to the opinion of two of “The name 'copy of a book' which has been used for the most famous English lawyers, Mansfield and ages as a term to signify the sole right of printing, publish- Blackstone. ing and selling, shows this species of property io have been long known, and to have existed in fact and usage as long tution, the right of literary property was recog.
In our own country, under the Federal Constias the name:" (this was in 1769.)
nized by the several States in their legislation on And the strongest proof of the existence of the subject of Copyright; most, if not all of them literary property under the Common Law, is having passed acts to secure their Copyrights 10 afforded by the fact, that Lord Hardwicke granted authors and publishers, thus pre-supposing the eran injunction against printing the Paradise Lost of istence of a right which they wished to secure. Milton: the title to which was derived by an assign- But the matter is not left to conjecture. Mr. ment from the poet himself seventy two years Madison, who introduced a resolution, as chairman before ; the statutory time having long run out. of a committee to Congress, on the 27th May,
The existence of literary property was recognized 1783, by which the several States were recomby various decrees of the Court of Star Chamber, mended “to secure to authors, their execators, in the sixteenth and seventeenth centuries, and by administrators and assigns, the Copyright of their several acts of Parliament in the seventeenth cen- books,” thus expresses his own opinion in the 43rd tury, as we learn from the English law books; and No. of the Federalist. “ The Copyright of authors in the entries of the "stationers' companies,” there has been solemnly adjudged in Great Britain, to be are persons fined for “printing other men's copies.” a right at Common Law.” (American Jurist.)
Judge Story in his Commentaries, expressly “ As late as 1769 in the great case in which was involved admits the Common Law right of authors. (3rd the right to print • Thomson's Seasons,' (4 Burr.) one of Story, 481.) Chancellor Kent gives no positive the questions discussed was, whether at Common Law an opinion. But the most important recognition of author has the sole and exclusive Copyright in himself
, or this right of property in authors, independent of his assigns in perpetuity; and it appears from the verdict of the jury in that case, that it had been the custom to pur
legislation, is to be found in the report of the comchase from authors the perpetual Copyright of their books, mittee of Congress, which accompanied the preto assign the same from hand to hand for valuable conside- sentation of the Copyright Law of 1831, our ration, and to make the same the subject of family settle present law on the subject.) The chairman of the ments for the provision of wives and children.” (American judiciary committee, Mr. Ellsworth, made a report, Jurist.)
a portion of which I will quote, as showing the That it is not a “monopoly” as J. B. D. calls it, basis of our Copyright Law and the conclusions to and never has been so considered, is proved by the which a thorough examination of the subject fact, that in the reigns of Elizabeth and James I., unavoidably led them. when the most bitter and unsparing war was made “ Upon the first principles of proprietorship in property, upon all “monopolies," "copies" of literary works an author has an exclusive and perpetual righe in preference >>
any other to the fruits of his labor. Though the nature of the decision is misstated, no uncommon occurrence, literary property is peculiar, it is not the less real and valna. as any one in the habit of consulting Law Reports ble. If labor and effort in producing what before was not
must have had frequent occasion to observe. The possessed or known, will give title, then the literary man has title, perfect and absolute, and should have his reward; real point decided in that very case is this, that by he writes and he labors as assiduously, as does the me. Common Law and universal usage, an author was chanie, or husbandman. The scholar who secludes bimself entitled to his Copyright in perpetuity, but that the and wastes bis life, and often his property, to enlighten statute of Ann had limited and restricted the world, has the best right to the profits of those labors-exercise of that Common Law right to a certain the planter, the mechanic, the professional man, can not prefer a better title to what is admitted to be his own.
fixed and definite time ; and even this latter point
It can not be for the interest or honor of our country, that was decided, contrary to the opinions of Lord intellectual labor should be depreciated, and laborious Mansfield and Sir W. Blackstone, the two greatest stody terminate in disappointment and poverty.” lawyers England has ever known, who regarded
That the committee did not report a bill for per- that statute only as declaratory of the old and estabpetual Copyright in consonance with the views lished Common Law right. expressed in the report, is easily accounted for, As the whole question of literary property was from the fact of the public mind not being suffi- fully discussed in these English cases by the most ciently prepared for it; from want of due considera- learned and acute lawyers in the realm, I trust tion of the subject, which is only brought home to that courteous individual, the general reader, will the miods of the authors, who feel the injustice of forgive me, if following in the footsteps of J. B. being deprived of their rightful property; and of a D., I should lead him for a time from the pleasant few literary dabblers, like myself
, who have no fields of literature, into the thorny paths of law: interest in it, further than that which every honest and request his presence at the celebrated case of man and good citizen should feel in promoting the Millar and Taylor, (4 Burr. Rep. 2302,) tried in the cause of truth and justice.
Court of K. B. in 1769, at which Lord Mansfield From hence it appears, that although J. B. D. presided, with three assistant Judges; and which has never “ heard of this principle having ever was argued by such lawyers as Dunning, Thurlow been adopted by any government in practice," and Blackstone. it was in fact at the bottom of the English Law of So far from the question being even theo conCopyright, and was made the inducement, and sidered a novel one, the reporter commences with motive cause of the passage of our act of 1831; the following remarks : and if this was considered as an act of simple jus- “This case was a revival of the old and often litigated tice to our authors, it should apply equally to those question concerning literary property, and it was the first of other countries who reciprocate with us; unless determination which the question ever received in this our government is disposed to adopt the Roman
Court of King's Bench." policy, with whom the same word was used toʻsig
That is, the first time it was contested, the prenify a stranger and an enemy.
vious proceedings being by injunction in chancery; But “ J. B. D.” goes still further, and proceeds for as early as 1680, an injunction was had, to reo say,
strain the publication of “Bunyan's Pilgrim's Pro* No where has it been admitted as a claim of right, or gress,” whereby the proprietor lost the profit and put upon the same footing in point of character, or extent benefit of his “copy.” In this case of Millar and with other possessions."
Taylor, the subject matter of which was the public The fallacy of this statement has been already cation of “Thomson's Seasons,” Lord Mansfield proved; but he continues as follows:
and two of the assistant Judges declared in the “Even in England, where his claim of right has been strongest terms, the Common Law right of an aufirst set up, it was solemnly adjudged as far back as 1774, thor to the Copyright of his own work in perpetuity, by the highest legal tribunal of that country, in the case of after as well as before publication; and Justice Donaldson vs. Becket, that at Common Law, an author has Yeates alone dissenting, delivered an opinion which to exclusive Copyright in his writings, and holds only a contains all that could be, or has since been urged temporary interest in them, under the authority of statutes. against this right; the arguments in which have Had an opposite principle been decided in that memorable ase, it would have followed that by the Common Law or since been reiterated by M. A. C. Renouard in England and of this country, which is essentially the same
France; the Austrian publishers in their country, ystem, Copyright was perpetual ; that it must be subjeet to by the cheap ones here, and recently by J. B. D. he same rules, and guarded by the same sanctions with in the columns of the Messenger. The leading kber property.”
argument is simply this, that property can not be The conclusion he arrives at in the last sentences, predicated of thought, and that the term Literary s precisely similar to that which I have been laboring Property, ought to be banished from the language o establish; though the case, he has quoted would of the law; but that, nevertheless, the sole right of eem conclusive on the opposite side. But unfortu- multiplication ought to be bestowed upon the author Lately for his cause, J. B. D. has been misled by the for a limited time, on account of his merit and the darginal note to that case, in which the real point of benefits he confers upon society! “But," as it has
been well remarked reply, “although property And after giving a long list of reasons, thus concan not be predicated of thought, yet it can be of|cludes: composition, of work, and so far from the author's
“For these and many more reasons, it seems to me just abandoning his right on publication, he only then and fit to protect the copy' after, as well as before priblifirst avails himself of the value of his property by cation. There is no peculiar objection to the property after, publishing his work. And for all civil intercourse except that the property is necessarily made common after
the book is once published. The arguinent turns in a cirproperty is as though it had no existence, so long cle," the copy is made common because the law does not as the owner can not affix exchangeable value to it. protect it, and the law cannot protect it because it is made To say then, that a composition is the property of common? The whole then must finally resolve into this the author, so long as he chooses to keep it in his question, whether it is agreeable to natural principles of desk, but that he forfeits the ownership as soon as moral justice, and fitness, to allow him the 'copy' afin he publishes the composition, is saying, “this is publication, as well as before ?"
“The general consent of this kingdom for ages is on the your property, but the act itself of availing yourself affirmative side. The legislative authority has taken it fer of this property, deprives you of it! which is ab- granted; and interposed penalties to protect it før a time, surd!" (Lieber.) This argument appears to me The single opinion of such a man as Milton, speaking after unanswerable, and is very similar to that urged by much consideration, on the very point, is stronger than any Lord Mansfield in the case above referred to, to inferences from gathering acorns, and seizing a sacant which we will now return; keeping in mind the piece of ground, &c.” “The judicial opinions of those emi
nent lawyers and great men, who granted or continued intechnical meaning of the word “copy,” as defined junctions in cases after publication, not within 8 Queen by Lord Mansfield, quoted in a previous part of this Ann, uncontradicted by any book, judgment or saying, must letter.
weigh in any question of law.” After a full hearing of the arguments on both
On the third question, he says, in relation to the sides, and when the inferior Judges had delivered
statute of 8 Ann, their opinions, two being in favor of “copy" and
“The bill was brought in on the petition of the proprieone opposed to it, Lord Mansfield proceeded to de
tors to secure their property forever by penalties, and the liver the opinion of the court, on the following alteration was made in committee to restrain the perpetum questions, giving at the same time his reasons for into a teinporary security. Had there been the least inlessuch decision :
tion to take or declare away every pretence of right at the “lst. Whether an author's property in his own literary Common Law, it would have been expressly enacted, and a compositions is such as will entitle him, at Common Law, different preamble from the one as it now stands." to the sole right of multiplying the copies of it.
He concludes his opinion with the following im“ 2ndly. Whether the Copyright by his own publication pressive words : of the work is necessarily given away, and his consent to such gift implied hy operation of law.
“The suhject at large is exhausted, and therefore I have "3rdly. Whether it is taken away from him, or restrained not gone into it. I have bad frequent opportuniues to conby the statute of 8 Queen Ann?"
sider of it. I have travelled in it for many years. Many These are his words,
of the precedents were tried by my advice. The accurate
and elaborate investigation of the matter in this cause, and “From premises either expressly admitted, or what can in the foriner case of Tonson and Collins, has confirmed not be, and therefore never have been denied, conclusions me in what I always inclined to think, that the Court of follow, in my apprehension, decisive upon all the objections Chancery did right in giving relies upon the foundation of a raised to the property of an author in the copy of his own legal property in authors, independent of the entry, the term work by the Common Law.” “This property is equally de- for years, and the other provisions annexed to the act." tached from the MS. or any other physical eristence whatsoever.” “ The property of the copy' thus narrowed, may Judgment was accordingly given for the Plaicequally go down from generation to generation and possi- tiff, and an injunction issued. This was in 1770; bly continue forever, though neither the author nor his re- four years afterwards the matter came before the presentatives should have any MS. whatsoever of the work, House of Lords upon an appeal from a Decree of original, duplicate, or transcript."
the Court of Chancery founded upon this judgmesh He then proceeds to consider the second ques- in the case of Donaldson vs. Becket, quoted by J.
of course my limits compel me to give only B. D. Upon this appeal certain questions were extracts; but none have been garbled, or their mean
propounded to the 12 Judges, to which 11 responding perverted :
ed, Lord Mansfield giving no opinion, “ it being “All objections which hold as much to the kind of pro- unusual," says the reporter," for a Peer to support perty before
, as to the kind of property after publication, go his own judgment on an appeal to the House of for nothing; they prove too much ; from what source, then, is the Common Law drawn which is admitted to be so clear Lords, although it was known his opinions bad not in respect of the 'copy' before publication? From this ar- changed.” gument, because it is just that an author should reap the These questions were the same as set forth pecuniary profits of his own ingenuity and labor: it is just above in the case of Millar and Taylor; and en that another should not use his name without his consent. the first question 8 Judges voted in the affirmative, It is fit that he should judge when he will publish, or if he
and but 3 in the negative. ever will publish. It is fit that he should not only choose the time, but the manner of publication. But the same rea
On the 2nd, 7 to 4; and, on the 3rd, 5 10 6. So sons hold after the author has published.”
that had Lord Mansfield voted, they would have
been equally balanced upon the 3rd question, upon laid down by J. B. D. which I can not refrain from which the case was decided; the majority on the briefly commenting on. In an early part of his other question being decisive of their opinions, that elegant Essay, he “defies the most subtle and inliterary property did exist under the Common Law genious advocate of Copyright to distinguish on the both before and after publication. On these an- principles of natural justice between property in swers the House of Lords reversed the decree; al- thoughts promulgated in books, and thoughts orally though the highest legal authority in the realm was communicated;" and dexterously applying the “rein its favor.
ductio ad absurdum," extends it to common conThe reporter goes on to say, that
versation. Now really it seems to me that the * The Universities were so much alarmed at the conse distinction to be drawn between a careless converquences of this determination that they applied for and sation and an elaborate composition is so obvious obtained an Act of Parliament, establishing in perpetuity as to strike the meanest capacity; and although their right to all the copies given them heretofore, or which might hereafter be given to or acquired by them.”
laying claim neither to “ subtlety nor ingenuity,"
I can explain the difference between them in a few In commenting on this decision, the late Judge words. The distinction is simply this : into the Thompson, of the Supreme Court, remarks,
one, labor enters and gives it a value ; into the " That the law of England has not been considered as other does not; the manifest design in the one settled in conformity with the vote on this last question is case, is to attach a value and to make it permanent; very certain ; for it is the constant practice in Chancery in the other to give it away. The latter is the peel to grant injunctions to restrain printers from publishing the works of others; which practice can only be sustained on of the orange which is carelessly thrown away; the the ground that the penalties given by the statute, are not former, the fruit itself carefully retained for the use the only remedy that can be resorted to."
and benefit of the owner. And that property may At the risk of being tedious, I have quoted largely be predicated of composition even orally communifrom these old cases, because they contain the true cated, has been established beyond doubt by the doctrine of literary property, and are the fountain injunctions which have been issued to restrain the heads from whence correct ideas of the rights of publication of lectures orally delivered ; an instance authors are to be drawn. I do not think that I of which occurred in New York but a few years owe any apology to the reader, for giving him the since, in the case of a publication of the lectures lueid and powerful arguments of Lord Mansfield, in of a celebrated Surgeon from the notes taken by lieu of my own crude conceptions, since I am more a student. than willing, that the advocate should be entirely As to the fear expressed by J. B. D., that “inoverlooked, so that the glorious cause can only enlist superable barriers will be opposed to the diffusion that attention, which its importance and justice chal- of knowledge" by according to every author the lenge at the hands of the American people, a people exclusive property in his own works: besides being who need only know the right, to pursue and em- a waiver of the question of right, it is refuted by brace it.
the very nature of the property itself, since the There are many plausible but specious argu- only profitable use an author can make of his works, ments adduced by J. B. D. in support of his view is by diffusing and multiplying the copies of them; of the case, which I should take pleasure in answer for is shut up in his desk, they are perfectly valueing; but being well aware that most controversies, less. whether laical or polemical, are far more interesting The analogy which J. B. D. attempts to estato the parties concerned than to the public at large, blish between the enjoyment of light and air, and I fear to prolong this letter which has already far of thought, is too subtle and ingenious to be allowed exceeded the limits to which I had intended to to pass without comment. A moment's reflection restrict it.
will suffice to show that it is far more plausible than As, however, the whole argument of J. B. D. is solid, since the enjoyment of the former is restricted predicated upon the assumption that there is no to no one place or people, but by the gift of a benesuch thing as literary property independent of posi- volent Creator is diffused throughout all space, and tise legislation, which position, I trust, has been is not created by human labor, but received as a proved fallacious, it follows that the rest of his boon from on high. While the other owes its very argument must go for nothing, since the superstruc- existence to human effort and human toil, and may tore can not stand after the foundation on which it be either promulgated or suppressed at the will of rested has been removed.
the individual within whose brain it is generated So skilfully has he argued the question of expe- and brought to light; and to say that his right is diency, that I would have devoted a few words to alienated by the only means he can adopt to avail an answer, had J. B. D. not enlisted in this quarrel, himself of its use, would be io advocate a glaring my accomplished friend, Mr. Simms, whose supe- and palpable injustice. rior abilities will do more justice to the subject than I have but a single word more to add, and it is could have been effected by my feeble pen. of regret, that one so acute as J. B. D. has proved
There are, nevertheless, one or two positions' himself to be, should be driven by the weakness of
his cause to adopt the miserable, turgid fallacy of patience, I will bid him farewell, with the promise Lord Canden, " that glory alone should be the that on this subject I shall not trouble him again; reward of science, and those who deserve it should and in concluding, I can not avoid doing justice to scorn all meaner views," making the very merits the great ability and courtesy, manifested by my of authors “the whip to scourge them with,” advo- respected opponent, J. B. D., who, if he has “ Just cating their starvation, because no reward could be his cause, has gained his end,” by proving, how given adequate to their deserts ; for such is the much talent can strengthen a weak argument, and sentiment he expresses in the following paragraph : lend dignity to a feeble cause. With an apology
“They felt like Milton when he sold the Copyright of to yourself and readers for occupying so much of Paradise Lost for the paltry sum of twenty pounds, that your time and attention, fame was not to be weighed against pecuniary emolument;
I remain, &c. that the noblest recompense of intellectual effort consists
E. D. in the contemplation of its beneficent effects, and in the Columbia, S. C., May 12, 1844, grateful applauses of mankind."
True! such is the noblest, but should it be the only recompense ? because it is beyond price, shall it therefore command no price at all? The illustration he has chosen is a most unhappy one for GROUPED THOUGHTS AND SCATTERED FANCIES. his cause, for never was the world's injustice to
A COLLECTION OF SONNETS. literary men more signally displayed than in the case of Milton? Was the sale of the Copyright By the author of “ Atalantis," “Southern Passages and alluded to a voluntary thing on his part, when “old,
Pictures," &c. blind and poor, with darkness and with dangers com passed round ;" or was that “paltry sum” the greatest he could wring from a niggard publisher, and necessary to keep him and his household from ter reason than that they contain fourteen lines. They bet
I have entitled these little poems "Sonnets," for no betstarvation ?
ter deserve the appellation in the English, than the Italian, It is a sad subject to be merry on, but reasoning sense. They have grown upon me in the progress of years. of this kind always reminds me of Fallstaff's "solil. Some of them are of very early, and some of recent, com oquy on honor," " will it set an arm or a leg ?” So position. All of them have grown out of passing suggesmight I ask, will the shadow of a distant fame an- which naturally fall from the pen of a professional author
tions, and belong to that class of occasional productions, swer the poor author as a substitute for the com- in the intervals between his regular labors. The earlier forts or the necessaries of life? It did not in the poems have had the benefit of late revision. case of Camoens who perished miserably in a hos
I. pital; it did not save Cervantes from the knawing agonies of hunger ; nor the thousand other martyrs Spirit that dwellest in the opening flower, of mind, to number whom would be as endless as And bathest in the morning's earliest dew,to count the sands upon the sea-shore. Was it for Thou that hast wings to hurry on the hour, glory or for bread that Shakspeare wrote his undying And makest that lovely which were else but true; plays ? They were written to fill the Globe Play- Yielding fresh odor for the hungering sense, house. What induced Johnson to write his Ras- Teaching the zephyr mournful eloquence, selas ? To defray the funeral expenses of a dying And, when he brings his worship to the rose, mother. A thousand other instances might be That givest such heavenly sweetness to his tone, cited to show that the stimulus of fame great and That fancy straightway deems it music's own! powerful as it is, and ever has been, has not been come to me, spirit, from thy far domainthe sole inducement to literary production, nor its Fain would I, with a tenderness like thine, contemplated reward; and that minds of the most To her I love, of her I love, complain; ethereal temper chained to gross, earthly bodies, For she hath beckon'd me to seek her shrine, must act with reference to their wants and cravings. Beholds me there, yet nothing heeds my pain. Even Samuel Johnson, one of the mightiest intel
II. lects England has ever known, when in squalid poverty he wandered at midnight through the streets I will breathe music in the little bell of London, with a friend as wretched and poverty- That cups this flower, until it takes a tone stricken as himself, gnawed by the fierce cravings For every feeling human heart has known; of hunger and despairing wretchedness,—had the Though hearts their secrets may not often tell, choice been then presented him, would have chosen Mine is the charm to win them: I will wake one good substantial meal, and a happy home, in- Strains, which though new to men, they shall not stead of the loudest blast that ever echoed from the fail trump of fame.
To tremble as they hear,-as an old tale, And now, having I fear sorely taxed the reader's Will with new joy the absent wanderer take,