The result was, that though eight to three of the judges. held, that the author's perpetual copyright at common law was not lost or surrendered by publication, and though six to six were of opinion, that the statute of Anne did not abolish or confiscate the author's perpetual right, and substitute for it a fourteen years' right only, yet the Peers, led away by Lord Camden's tropes and figures, and his animated declamation,1 reversed the opinion of the judges, and held, that confiscation of the author's rights had been fully accomplished by the statute. And so the law, though changed in trifling details, has ever since been left unaltered in these two vital points. 2

Lyndhurst, L. C., 63 Parl. Deb. (3) 782. See also L. Hardwicke, L. C., Gyles Wilcox, 2 Atk. 141.

1 The following were the chief arguments put forward by LORD CAMDEN: "While a man's thoughts are in his brain, no one indeed can purloin them; but what, if he speaks and lets them fly out in private or public discourse? Will he claim the breath, the air, the words, in which his thoughts are clothed? Where does this fanciful property begin, or end, or continue? An action I allow will lie for ink and paper, but what says the common law about the incorporeal ideas, and where does it prescribe a remedy for the recovery of them, independent of the materials to which they are affixed? I see nothing about the matter in all my books."-17 Parl. Hist. 997. Is this property descendable, transferable, or assignable? Can the author let it out for hire as the circulating libraries do? If there be anything in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. Those great men, those favoured mortals, those sublime spirits, who share that ray of divinity which we call genius, are intrusted by Providence with the delegated power of imparting to their fellow creatures that instruction which Heaven meant for universal benefit; they must not be niggards to the world or hoard up for themselves the common stock. 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 is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much as a sheet of a letter-press. All our learning will be locked up in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chooses to demand, till the public become as much their slaves as their own hackneyed compilers are."-17 Parl. Hist. 999. Judgment was reversed by twenty-two to eleven of the peers, one only of those who voted being a lawyer, namely, Lord Camden.

2 In Scotland the question was raised about the same time as in England, as to whether copyright after publication existed at

S

Nature of copyright in MS. works.-The nature of the right, which an author has in the ideas which he reduces to language is properly distinguished into two stages; one is the stage during which they have not been published, the other is the stage after publication. Before an author has published his ideas in language, oral or written, these cannot in any sense come within the cognisance of the law, and therefore are treated as exclusively under the author's dominion. Yet the manuscript has an individual existence in the eye of the law, though the original has been destroyed, as was shown in the case of Lord Clarendon's History, which had been copied in manuscript and the original lost by fire, and after the lapse of 100 years his executors were held entitled to restrain a piratical publisher from publishing it.1 And even when a work is once published, the public may make a certain limited use of it without violating any right remaining in the author. For example, they may criticise it, talk about it, think about it, analyse it, use extracts from it, add continuations, as will hereafter appear." So long as an author has committed his ideas to writing, and they exist in the stage of an unpublished manuscript, he is in the eye of the law as much the absolute owner, not merely of the paper, but of the order of words, as the owner of any chattel can be. The same law which gives the one right gives the other; and though chattels pass from hand to hand and are seldom retained in the possession of the first maker or first possessor, yet if the whole right of property has once come to reside with the possessor, then the right to a chattel is precisely the same as the right to the unpublished MS. It is one entire right, and it is chiefly in the contingency of lending and losing possession that some differences come to be apparent.

Lending copies of MS. to friends.-The entirety of

common law. The majority of the Scotch judges came to the conclusion, that there was no such copyright left outstanding; but LORD MONRODDO, being the minority of one, in an admirable and masterly opinion outreasoned all his contemporaries, and showed unanswerable grounds for the contrary conclusion.-See Cadell Robertson, 5 Paton's App. 518.

1 Per L. Mansfield, Millar v Taylor, 4 Burr. 2396, 2397; D. Queensberry Shebbeare, 2 Eden, 329. 2 P. Albert v Strange, 2 De G. & S. 693; 1 Mac. & G. 25.

this right to an unpublished MS. is not affected by the kind of paper on which it is written, or by the fact that several copies of the same exist in the form of lithograph copies or otherwise. It is, however, in the case of copies being given away to private friends, that the difficulty sometimes arises of protecting the exclusive right. When resolved into simple elements the right of property in an unpublished MS. involves these distinct parts:-(1) It includes an absolute right to keep for his own exclusive enjoyinent whatever advantage is derivable from possessing in a written form the order of words. (2) It includes the sole and exclusive right to publish, if he thinks proper at any time, and to make profit or pleasure out of the circulation of such order of words. (3) As another phase of the same rights he has the right of action against any one who takes out of his possession the paper or the order of words written on it, and he has the right of injunction, that is, the right by process of law to prevent a stranger or trespasser publishing the MS. against his will, or any copy, abridgment, or even a description of it. In the case of Prince Albert, who had a number of etchings, and during the process of lithographing these a workman made. surreptitious copies and afterwards published a description of them, the court not only ordered the surreptitious copies to be delivered up, but restrained the publication of the illustrative catalogue, which was an auxiliary right included in the larger right of entire dominion or ownership.1 No power or court can compel the owner to publish his manuscript.

But publication is clearly to be distinguished from lending the MS. to another to read, or making lithograph or printed copies for circulating or even presenting to friends. Publication implies an offering to all comers, either gratuitously or for a price, and an inviting of purchasers; and a mere lending or giving the use of a reading implies nothing more than this, that the reader or donee of a private copy may exercise his own thoughts upon the contents but has no assignment of the valuable right to publish and multiply copies, which the author alone necessarily enjoys. And it has been also held, that the author 1 Prince Albert v Strange, 2 De G. & S. 696; 1 Mac. & G. 43. 2 Prince Albert v Strange, 2 De G. & S. 695; 1 Mac. & G. 25.

or owner of an unpublished MS. is entitled, if he pleases, to lithograph and circulate for sale or otherwise any number of copies, and yet this will not be deemed any publication, and in no wise interferes with his copyright.'

Copyright in MS. assignable.—Copyright before publication, like other personal property, is assignable, and passes, on the death of the author or assignee, to the legal personal representative. And where such copyright has passed to the executors, who publish it, the property remains in them. Where the author of a MS. sells or assigns it to another with a view that the latter may publish it as his own composition, the latter has necessarily an implied right of altering it. When the owner of an unpublished MS. gives a copy to a third person, this prima facie includes no further use of it than such as that third person or his friends may derive from the perusal and from the knowledge and mental gratification such perusal confers; but it in nowise implies that the donee, or even a purchaser acquires the valuable right of publication for profit or pleasure of such copy, unless this latter right is added, and the burden of showing this must be on the donee. Yet much difficulty has been caused by the publication of a MS. in which the publisher admitted he had no copyright, but yet which it was said he had an implied license nevertheless to publish for special or general purposes. The copyright or full right of dealing with a manuscript containing the ideas of the author includes many subordinate uses. The rule is, that where a transfer of the entire right is claimed it must be strictly proved; and a subordinate and limited user only will be implied in the absence of circumstances from which the larger intention may be inferred. Such was shown to be the case when the author had only lent a MS. to take a copy, which was held to imply no right to publish it;* where he said to a friend, "you may keep the letters," this was no assignment of copyright. And so lithographing a few copies to give to friends was held no abandonment of property in the MS. And merely leaving the MS.

5

1 White v Geroch, 2 B. & Ald. 298. 2 Turner Robinson, 10 Ir. Ch. R. 121, 521. 3 Cox v Cox, 11 Hare, 118. 4 D. Queensberry Shebbeare, 2 Eden, 329. Thompson Stanhope, Amb. 737. 6 Prince Albert Strange, 2 De G. & Sm. 652; 4 Mac. & G. 25.

twenty-three years in a bookseller's hands was no evidence. of an assignment.'

If there can be dedication of MS. to public.-Whether an author or proprietor of an unpublished MS. can so divest himself of the ownership as to dedicate it to the public at large without giving it to another individual has been sometimes questioned. It cannot be doubted, that any owner might so abandon the right of property as to leave it open to all or any member of the public to publish or make any other use of the document each thinks fit. This question will be found always to resolve itself into another, namely, whether in the circumstances the owner has given to some individual the entire property, or has given only a limited use of it for a particular purpose, or has simply declined to protect his right and allowed others to scramble for it. If he has given it absolutely, then the donee is the owner, and stands in the same position as the donor. If he has given only a limited use of the document, then the radical right, subject to this limited user, still remains undivested, and he can deal with it in all other respects as the absolute owner. If, however, he merely allows any third party to reprint a book without either consenting or dissenting, the right is not divested from him and vested in another. There can be no such thing as an abandonment of the right of property to the public in this sense; the right must exist in some individual or number of individuals, and it cannot leave one individual without passing instantly into another individual.

At the same time the owner may have so conducted himself with reference to this property, and with reference to a third party's dealing with it, as to deprive himself of at least one of the usual remedies against such party. And when an author, by his conduct, seems to let anybody reprint his book, though this does not give any copyright to such printer or publisher, nor amount to a license to all others to do the same; yet after allowing nine persons to do it the court will not grant an injunction against the tenth, nor assist the owner in that way. He may still resume possession, but he cannot do so without allowing those publishers, who have already helped themselves, being

1 Southey & Sherwood, 2 Meriv. 435.