as has been asserted by Lord Mansfield and other judges. Those early decisions perhaps show a vague leaning of the courts in favour of the doctrine, that whenever a matter is doubtful it is always safe to assume that the right came first from the Crown. And hence they had easily held, that the copyright in an almanac "which, as they said, has no particular author," was in the king.1 But a hundred years later, the court found, that this doctrine was quite untenable, and that a Crown patent for the exclusive printing of almanacs was worthless.2 The Court of Chancery protected the common-law copyright, which was held to survive after the statutory period had expired, and it was not till 1760 that the point was first started, in reference to a piracy of the Spectator, that the statutory short period superseded and extinguished the perpetual common-law right-that such statutory right was the only right, and when it ceased, there was no copyright beyond it.3 All the reported cases, therefore, up to 1769, it may be assumed, were vague, and proved little. At length, in 1769, the Court of Queen's Bench, by a majority of three to one, distinctly decided, that at common law the author or assignee of a copyright could recover damages for the publication of copies without the author's consent, irrespective of the statute of Anne, and that that statute merely gave a collateral remedy for a limited time. In another case, however, in 1774, the House of Lords, after taking the opinion of eleven common-law judges, held that though at common law the author and his assigns may have had the sole right of printing and reprinting the book in perpetuity, yet that the statute took wholly away that right and substituted for it a shorter right for the term of years mentioned, namely, fourteen years; and that the author had thereafter no other right of any kind beyond such as the statute so substituted.5 The later authorities accordingly have now assumed as settled law, that the copyright of published writings is regulated exclusively by statute, whether formerly existing at common law or not, that is to say, though a right of action lay at common 1 Stationers' Co. v Seymour, 1 Mod. 256. Carnan, 2 W. Bl. 1004. Co. 321. 2 A. D. 1775, Stationers' v Collins, 1 W. Bl. 301, 3 Tonson 5 Donaldson Beckett, 4 Millar v Taylor, 4 Burr. 2303. 4 Burr, 2408. law for invasion of copyright, yet after the statute of Anne the common-law right of action was superseded by the action given by that statute, and hence that an action for piracy could only be brought during fourteen (now fortytwo) years after publication.1 - Reasons why copyright does not differ from other rights. That the author of ideas which he has put in writing for any legitimate purpose either of profit, amusement, or gratification, should have the sole and exclusive right of multiplying copies for the furtherance of his views, and should at common law be entitled to the same protection against the violation or obstruction of that right as in other cases, while he pursues the business of life and seeks to advance his objects, might seem a truism. Thinking and putting thoughts into words in such a form as to be intelligible, is only one mode of working and of exercising the human faculties. The object of all laws is nothing else than to protect each man in pursuing his own ends, in the fullest manner consistently with all other persons equally pursuing theirs, and subject only to such reasonable restrictions as this latter consideration requires. To think, and to speak, and to write, are as natural instincts of mankind as to eat, to drink or to work, to grow corn, or to sell cattle. To write or communicate one's ideas to the public is as natural and obvious a development of his working powers, as it is to speak or to write to one individual only. To print copies of the same writing is nothing else than to save the labour and expense of innumerable hands by a mechanical process. But whether an author choose to employ an army of clerks to copy his writings or a few hands to print them can make no real difference as to what must be the view of the law regarding the nature and effect of the thing he is doing. The author of a writing creates a specific property, for if he finds, that the diffusion of many copies ministers to the objects of life and procures him profit, or what is sometimes a higher equivalent, viz., a fund of power and reputation amongst his fellow men, then this power of multiplying copies is substantially a property in itself, and if it is property, then it must exist so long as it can be identified and its continuity be traced. "Once Jeffreys Boosey, 4 H. L. C. 815; Beckford v Hood, 7 T. R. 620; Reade v Conquest, 9 C. B., N. S. 755. property always property," is a maxim which means, that when once a specific thing has been created and has the qualities of property, it must exist for an indefinite time, into whosesoever hands it passes, until the power is exhausted or the property comes to an end. If it exists in a specific form and is capable of being identified, it must be property, or what is the same thing, the proximate cause of property. The power to issue and multiply copies is in substance the property itself; whether that power is exercised in the mode of issuing one edition or set of copies or making copies from time to time until the end of time, is immaterial. Why the mere accident of making a thousand copies by one short process of printing should operate to extinguish the original power, and prevent future thousands of copies being issued thereafter from time to time, it is difficult to conceive, and no sensible mind has rendered a reason for it.1 Reasons alleged for confiscating authors' copyright.— Though it has been seen, that the nature of an author's work differs in no way from other kinds of work, nor his property from other kinds of property, yet it was once urged, "that copyright is the creature of statute," as if this 1 "It did not occur to our ancestors, that the right of deriving solid benefits from that which springs solely from within us--the right of property in that which the mind itself creates, and which, so far from exhausting the materials common to all men, or limiting their resources, enriches and expands them-a right of property which, by the happy peculiarity of its nature, can only be enjoyed by the proprietor in proportion as it blesses mankind-should be exempted from the protection which is extended to the ancient appropriation of the soil and the rewards of commercial enterprise."-Talfourd, H. C., 38 Parl. Deb. (3) 867. "No property is so entirely, purely, and religiously his own as what comes to him immediately from God without intervention or participation. It is the eternal gift of an Eternal Being. No legislature has a right to confine its advantages, or to give them away to any person whatsoever to the detriment of an author's heirs."-W. S. Landor, 2 Forster's Landor, 422. "The tenure by which the property in books is held is superior to that of all other property, for it is original. It is tenure which does not exist in a doubtful title, which does not spring from any adventitious circumstances. It is not found; it is not purchased; it is not prescriptive; it is original. So it is the most natural of all titles, because it is the most simple and least artificial. It is paramount and sovereign, because it is a tenure by creation.”—B. Disraeli, 43 Parl. Deb. (3) 575. threw great light on the subject-as if it was a perfect solution and satisfied all parties. Copyright, however, is no more the creature of statute than any other right is so. The statute does not create one's hands, or legs, or brain, or appetites, or desires, or affections; it neither gives one ideas, nor teaches one what to do with them. Burke said— "Property is not the alms of government, as life itself is not their favour and indulgence." If there were no statutes and no laws, the right of an author would be the same as it is under their protection. The only difference would be, that he would have to defend his right with his hands, and all other proprietors would do exactly the same. The law is merely a collection of remedies fitted to dispense with this single-handed combat against all comers, which the possessor of any kind of property would eternally wage in its defence. Such a right exists anterior to and is above and beyond all statutes and all laws. Again, it was once urged, that the legislature can confiscate any man's property if it pleases, with or without terms, and with or without compensation. And this is true. It may to-morrow single out any man from the crowd; it may sell his goods and chattels, and give the proceeds to the poor; it may rase the foundations of his house to the ground and sow the site of it with salt. This may happen to any one, and there is no remedy whatever provided by the constitution. But still there will be found some people to ask, why the legislature, since it exists only for the impartial and equal protection of all, should single out one man rather than a thousand or than tens of thousands. It may be always pleasant to give away other people's property; but much of the time of courts is occupied in greatly reducing that pleasure, and confining it within as narrow a circle as possible. Again, it was once said, that copyright is so troublesome to protect, that the best course was to confiscate it after a short period. But even if it were troublesome, the object of law is nothing else than to find appropriate remedies for each special kind of property. For example, it is troublesome to protect the game and fish on one's estate, and accordingly the statutes provide Game laws and Fishery laws to assist the owners in protecting them better by giving more prompt and effective remedies. It does this by way of an additional and concurrent remedy, but it never extinguishes the common-law right underlying all statutory remedies. So it deals with owners of fruit, and forests, and mines. If one's body is assaulted, a statutory remedy, if pursued within six months, may be resorted to; but if it is, not resorted to, the legislature has not declared, that ever afterwards the body may be beaten with impunity and all remedy be denied. Again, it has been said, by way of reductio ad absurdum, that an author cannot at common law be deemed to have this perpetual copyright in the product of his thoughts, unless he can claim also the same exclusive right in every other thought of his brain, and in all his jests, fine sayings, and daily conversation. But it might as well be said, that a man cannot be paid his daily wages for digging a drain, unless he can also claim to be paid for walking to and from his work, for exchanging sentiments on the weather with all passers-by, or even for consuming his food, seeing that all these involve some kind of bodily labour, and one cannot be had without the others. The law disposes of most of these trifles by a convenient maxim-de minimis non curat lex. Every man arrived at years of understanding, and all courts also, instinctively recognise the broad distinction between matters of business and the small change that constantly passes between man and man in every state of society, and which does not enter in any shape or form into any contract, express or implied. Every man must converse, with or without saying things worthy to be remembered, and such things are given and taken without hope of reward; but it does not follow, because he does not reserve the ornaments of conversation for separate sale, that he cannot collect his matured thoughts and give to them the form of a book, and make them a saleable commodity, if he cares to take the trouble and write them out methodically. On what principle is he to forfeit all claim to this serious labour, because he has also thrown away many "ornaments of debate" among the crowd, for them to keep to their own use, or pass on to others gratuitously or otherwise? What is meant by a perpetual copyright at common law. Again, it was once said, that a perpetual copyright would lead to absurd results and could not be given effect |