to by the law. But the expression "perpetual copyright' is different in no respect from any other perpetual right. All rights of property are perpetual, and cannot be otherwise. There is perpetual right in land, in a house, in a horse, in a ship. All that this means is, that the proprietor is entitled to sell or bequeath it; and the same can be done as to all personal property. Any inconvenience caused by the probable multiplication of owners is no greater in respect of books, than in respect of horses or ships. The nearest analogy being that of a ship, it never entered into the mind of any legislature, that in order to prevent multiplicity of owners in a ship the proper thing to do was to confiscate the ship after fourteen years, and give the proceeds to the poor. On the contrary, the law bends to the peculiarity of each kind of property, and has carefully protected the property in ships, and provided for all the contingencies and difficulties caused by such multiplication, and by the occasional disagreement of many joint owners. If any difficulty therefore be apprehended from copyright being vested in course of time in many hands, it is as easy to correct and provide for that, as it is in the case of ships. But no analogy in any case justifies the application to literary property of an anomalous treatment, which makes it liable to be confiscated and unfit to be enjoyed, merely because the law has not taken the trouble to provide adequate safeguards as in all other cases.

The end therefore as well as the beginning of the legislation as to copyright, is, that though confiscation has been resorted to, no reason ever has been rendered for such an anomaly; and though the legislature no doubt pleased a vast majority of its subjects by giving them the property of a very few of their number to be scrambled for, it forgot that precisely the same treatment of every other kind of property would give still greater pleasure to vast multitudes of mankind, ever anxious to possess without the trouble of working for the thing that is coveted.1

Copyright as easily identified as other property.— One of the reasons urged against the existence of a perpetual copyright was, that copyright could not be identified, for it was only a right in ideas or fictions of the brain, that

1 The ancient philosopher well observed, "How can I argue against the master of thirty legions?"-Bac. Apopht. § 160.

could not be weighed or handled or measured or eaten. But this is to separate the abstract creative power from the concrete form it assumed. If the author invents a certain order of words which no second author except by a miracle could invent, and if those words can be put in a tangible visible form, and thereby assume as durable an existence as the solid mountains, and be as easily earmarked during all time, this objection vanishes. No two authors ever existed, who could invent or compose their thoughts in identically the same order of words for a few sentences running; and if so, then the product of the one author stands out separate and can at all times be as easily distinguished from the product of another author as the cattle or lands or ships or jewels of one proprietor from those of his neighbour. If so, then the property of the one can be as easily protected against invasion, or at all events remedies for the one can be made as appropriate as for the other. This is clear from what actually occurred in 1709. The assumption, that copyright did not exist before the statute of Anne because it could not be identified and could not be exclusively possessed, was a favourite reductio

The

1 The claim to copyright at common law is not, as was formerly said, "to ideas, but to the order of words, and this order has a marked identity and a permanent endurance. Not only are the words chosen by a superior mind peculiar to itself, but in ordinary life no two descriptions of the same fact will be in the same words. order of each man's words is as singular as his countenance. It is true that the property in the order of words is a mental abstraction, but so are also many other kinds of property, as, for instance, the property in a stream of water, which is not in any of the atoms of water, but only in the flow of the stream. In other matters the law has been adapted to the progress of society according to justice and convenience, and by analogy it should be the same for literary works, and they would become property, with all its incidents, on the most elementary principles of securing to industry its fruits, and to capital its profits."-Erle, J., Jeffreys v Boosey, 4 H. L. C. 870. The subject of property is the order of words in the author's composition, not the words themselves, they being analogous to the elements of matter which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation.”—Erle, J.; Ibid. No second author could express himself in the same order of words on any subject, however shortly treated, as another author, though they may deal with the same fundamental ideas. This order of words is therefore necessarily individualised and ear-marked, and incapable of being mistaken for any other man's product.

All it did

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ad absurdum used by counsel, who argued against the common-law right a hundred years ago. The statute, according to their theory however, did nothing more than say "Let there be an action in future;" and then there was no difficulty in identifying and protecting the exclusive copyright. If the courts had said the same thing of their own authority, as they ought to have done, and as Lord Mansfield and others said was the right thing to say, the result would have been precisely the same. It was not the statute which made copyright more easily identified or more easily enjoyed exclusively than before. was simply to say-"Let there be an action." was an action, and all then became clear. moment authors had a property tangible, visible, and ponderable, with which they could freight ships; and that property could be protected by an action of damages, and by penalties against all who invaded and depreciated it; and it could be sold and bequeathed like other property for fourteen years. The law cares nothing for the fabric or texture, the quantity or quality, the length or breadth or weight, the colour or sound or durability, of any vendible commodity. It is enough that it has a lawful creator, or a first finder, or an honest possessor, that it is capable of identification and that it is saleable. If it has these characteristics it is property, though it cannot be weighed or eaten. And if it is property-if it has all the qualities that property has -then it is the business of the law to protect the lawful owner or possessor against all comers.

Chief cause of the differences between early judges as to copyright.-The doctrine of common law as to copyright was not, as already stated, thoroughly investigated or considered till about 1769, that is to say, about sixty years after the statute of Anne in 1709 had been already passed. At last it became necessary to reconsider the matter, (1) as if no statute had passed, and (2) after the statute had passed, and as to what change that statute effected. And before stating the origin of the litigation that brought on this minute investigation, it is important to bear in mind, that the chief element of confusion was how to treat the fact of publication of a book. Nearly all the judges were agreed, that before publication the author of a manuscript book had entire control over it,

and had the same rights as he had over his other chattels. But the moment he published this manuscript, the judges were divided in their views as to the effect of the step, some treating publication as a mere mechanical multiplication of duplicates for convenience of sale, the radical right of property remaining wholly unaffected; while the other judges treated publication as a kind of solemn abjuration, and dedication of all the owner's previous rights and interests to the universe, whereby he cast off and deliberately surrendered all future control over the work, and over all duplicates that might be made of it. And yet human nature a century ago did not materially differ from what it is now. Lord Mansfield, C. J., was the chief champion of the former doctrine; while Lord Camden, exLord Chancellor, was the chief champion of the latter doctrine.

False analogies in early treatment of copyright.— The two leading cases in which the common-law doctrine of copyright as affected by the statute of Anne was reviewed and minutely discussed, occurred in 1769 and 1774. The two main questions were, (1) whether there was at common law a perpetual copyright in the author after publication as well as before; (2) if so, whether the statute of Anne extinguished this perpetual copyright, and substituted a limited and temporary copyright of fourteen years after publication and no more.

Those judges in favour of perpetual copyright reasoned thus: "That everything was property, that was capable of being known or defined, and capable of a separate enjoyment. That no man should be allowed to grind any corn but his own, or to build a house with another man's wood. That literary copyright was capable of perpetuity; even land, the most tangible species of property, might be washed away by the sea. Each owner was entitled to as full enjoyment of each kind of property as the nature of the case admitted. Publication was neither a sale, nor a gift, nor a forfeiture, nor an abandonment, and these were the only ways in which a person could part with his property. When an owner gave away land for a highway, he did not give to the public the trees or the mines upon or under the surface. So with the copyright, when he printed an edition, the radical right of printing more still remained

in him unaffected. Even if an incorporeal idea had the merit of promising future profit to the inventor of it, it was the same as property, and the fruits should be his. It would be singular if publication should be a forfeiture, and if the first moment the thinker endeavoured to raise a profit from his thought, he lost it."1

On the other hand, those judges who opposed the notion of perpetual copyright after publication reasoned thus:— "There can be no property in incorporeal ideas. If one opens the door of a basket of pigeons, they fly away, and are irretrievably lost. If I take water from the ocean, it is mine; but if I pour it back, it is mine no longer. An ogle is a lady's own whilst in private, but if she ogles publicly, they are every one's property. The thinking faculty was a gift with which all men were endowed, and ideas produced by it should likewise be held common, and not deemed subject to exclusive appropriation.3 Ideas were so ethereal as to elude definition; and no characteristic marks remained whereby to ascertain them. Exclusive appropriation of literary works was a monopoly. All that could be urged for copyright was moral fitness, but this amiable principle would only make laws vain and judges arbitrary. In all other cases of purchase payment transfers the whole and absolute property to the buyer; why not when a copy of a book is purchased?"

1 17 Parl. Hist. 467. "All the knowledge that can be acquired from the contents of a book is free for every man to use. If it teaches mathematics, physic, husbandry, if it teaches to write in verse or prose; if by reading an epic poem a man learns to make an epic poem of his own, he is at liberty. . . The book conveys knowledge, instruction, or entertainment; but multiplying copies in print is a quite distinct thing from all the book communicates... And there is no incongruity to reserve that right and yet convey the free use of all the book teaches."— Willes, J., Millar v Taylor, 4

Burr. 2331.

The relation which the purchaser of a book holds to the author and publisher, resembles that of the purchaser of a ticket to a proprietor of a theatre. He is entitled to derive all the entertainment, instruction, and information he can during the performance. He may afterwards think of it, speak of it, describe it, but to print tickets and sell them to all the public, so that they also might enjoy the same pleasure and he may derive all the profit, is quite another thing.-Drone on Copyright, 12. 3 Ibid. 972.

2 17 Parl. Hist. 962.

4 66 Copyright is no more a monopoly than property is."-L.