Sivut kuvina

of improvement (r) (9): but if the thing itself, by such operation, was changed into a different species, as, by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator, who was only to make a satisfaction to the former proprietor for the materials which he had so converted (s). And these doctrines are implicitly copied and adopted by our Bracton (t), and have since been *confirmed by many resolutions of the [ * 405 ] courts (u). It hath even been held, that if one takes away and clothes another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman (w). 7. But in the case of confusion of goods, where those of 7. By confusion

or mixing of two persons are so intermixed, that the several portions can goods. be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (w). But, if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost (y). But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent (2) (10).

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(n) Inst. 2.1. 25, 26, 31; Ff. 6.1.5.
(8) Inst. 2. 1. 25. 34.
(t) L. 2, c. 2 & 3.

(u) Bro. Abr. tit. Propertie, 23 ; Moor. 20 ; Poph. 38.

(w) Moor. 214.
(w) Inst. 2. 1. 27, 28; 1 Vern. 217.
(y) Inst. 2. 1. 28.

(2) Poph. 38 ; 2 Bulstr. 325; 1
Hal. P. C. 513; 2 Vern. 516.

(9) Mr. Christian observes, that the original materials; as, if leather " this also has long been the law of be made into shoes, cloth into a coat, England; for it is laid down in the or if a tree be squared into timber, or Year-books, that whatever alteration silver melted or beat into a different of form any property has undergone, figure. (5 Hen. VII. fo. 15; 12 Hen. the owner may seize it in its new VIII. fo. 10.)" shape, if he can prove the identity of (10) In the case of Lupton v. White,

8. Of authors in their own original literary compositions.

8. There is still another species of property, which (if it subsists by the common law,) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke (a), and many others (6), to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to

, have in his own original literary compositions : so that no other person without his leave may publish or make profit of the copies. When a man, by the exertion of his rational

powers, has produced an original work, he seems to have [ * 406 ] clearly a *right to dispose of that identical work as he

(a) On Gov. part 2, ch. 5.

(6) See




(15 Ves. 439, et seq.) Lord Eldon took claim to any part thereof. (See also
rather a different view of our law from Lord Chedworth v. Edwards, 8 Ves.
that laid down in the text. His lord. 50.)
ship thought, that a man who, by his The general rule, that, as against an
own tortious act in confounding two agent who has mixed the property of
funds, makes it impossible for another his employer with his own, so as to
to ascertain the amount of his proper- render it undistinguishable, the whole
ty, is bound himself to furnish the may, both at lawandin equity, be taken
means of distinguishing the two, or to to be the property of the employer, is
relinquish the whole. What, Lord El. well settled ; but, the same rule does
don asked, are the cases in the old law not, in all cases, hold against the cre-
of a mixture of corn and flour? and he ditors of such agent: for instance, if
answers his own question thus :- an agent pay money belonging to his
one man mixes his corn or flour with employer into his own banking-house,
that of another, and they were of equal and to his general account, this money
value, the latter must have back the may not be distinguishable ; but,
quantity that belongs to him, if that should the agent become bankrupt,
can be ascertained ; but, if articles of the whole sum which appears to be due
different value aremixed together, pro- to him from the bankers, will go to
ducing a third value, the aggregate of his assignees, and his employer can
both, and through the fault of the per. only come in as a general creditor
son mixing them the other party can- under the commission. (Ex parte
not tell what was the original value of Townsend, 15 Ves. 470.) So, if the
his property, he must have the whole.”'

* If

bankers had any account with the Lord Eldon, therefore, did not think agent by way of set-off, that set-off that an account was not to be taken, if would equally affect the money paid that was practicable ; but that, where in to his account (though being, in the person whose original dominion is truth, the money of his employer), invaded has not the means of furnish- as it would the agent's own money, ing the account, the duty of supplying supposing the bankers to have no noit rests with the wrong-doer; and if he tice, displacing their equity. (Massey fails to distinguish the two properties v. Banner, 1 Jac. & Walk. 248.) which he has confounded, he loses his

pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right. Now the identity of a literary.composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited: and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand, it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates ;. as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that, if one man wrote any of copyright by thing on the paper or parchment of another, the writing law. should belong to the owner of the blank materials (c): meaning thereby the mechanical operation of writing, for


the common

(c) Si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Ti

tius sed tu dominus esse videris. Inst, 2. 1. 33. [See page 404.]

which it directed the *scribe to receive a satisfaction; for, in works of genius and invention, as in painting on another man's canvas, the same law (d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence (e), Martial (f), and Statius (g). Neither with us in England hath there been (till very lately) any final (h) determination upon the right of authors at the common law (11).

But whatever inherent copyright might have been supposed to subsist by the common law, the stat. 8 Ann. c. 19, (amended by stat. 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

Of copyright by statute.

(d) Inst. s. 34.
(e) Prol. in Eunuch. 20.

($) Epigr. i. 67; iv. 72 ; xiii. 3 ;
xiv. 194.

(9) Juv. vii. 83.

(h) Since this was first written, it was determined in the case of Miller v. Taylor, in B. R. Pasch. 9 Geo. III. 1769, that an exclusive and permanent

copyright in authors subsisted by the common law. But afterwards, in the case of Donaldson v. Becket, before the House of Lords, 22 Feb. 1774, it was held, that no copyright now subsists in authors, after the expiration of the several terms created by the statute of

queen Anne.

(i) By statute 15 Geo. III. c. 53.

(11) Mr. Christian observes, that mentator, and of several other judges, “whether the productions of the mind every person may still be permitted to could communicate a right of property indulge his own opinion upon the or of exclusive enjoyment in reason propriety of it, without incurring the and nature ; and if such a moral right imputation of arrogance. existed, whether it was recognised and “No less than eight of the twelve supported by the common law of Eng- judges were of opinion that this was a land ; and whether the common law right allowed and perpetuated by the was intended to be restrained by the common law of England; but six held, statute of queen Anne; are questions, that the enjoyment of it was abridged upon which the learning and talents by the statute of queen Anne, and that of the highest legal characters in this all remedy for the violation of it was kingdom have been powerfully and taken away after the expiration of the zealously exerted.

terms specified in the act; and agree“These questions were finally so de- able to that opinion was the final judgtermined, that an author has no right ment of the lords. at present beyond the limits fixed by “See the arguments at length of the the statute. But, as that determina- judges of the King's Bench, and the tion was contrary to the opinion of opinions of the rest, in 4 Burr. 2303." Lord Mansfield, of the learned com

property by additional penalties and forfeitures: directing farther, 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 (12): and a similar privilege is

and certain other learned societies,

some additional privileges in this respect are granted to the universities,

(12) The statute of 54 Geo. III. thereof, and the said author or proc. 156, enacts, that the author of any prietor shall make waste paper of such book, printed and published subse- book or books; and every such offenquently to the said act, and the assig- der shall also forfeit three-pence for nee or assigns of such author, shall every sheet thereof, either printed have the sole liberty of printing and or printing, or published or exposed reprinting such book for the full term to sale: provided that all actions, of twenty-eight years, to commence suits, bills, indictments, or informafrom the day of first publishing the tions for any offence committed same ; and also, if the author shall be against the said act, shall be brought, living at the end of that period, for sued, and commenced within twelve the residue of his natural life ; and months next after such offence comthat if any person, in any part of the mitted. The title to the copyright of British dominions, shall within the books is directed by the act to be terms and times granted and limited entered at Stationers'-hall, within a by the said act as aforesaid, print, limited time, under a penalty of for, reprint, or import, or cause to be feiture of five pounds, together with printed, reprinted, or imported, any eleven times the price at which such such book, without the consent of the books shall be sold, or advertised for author, or other proprietor of the sale : provided that no failure in copyright, first had in writing ; or, making such entry shall in any manknowing the book to be so printed, ner affect the copyright, but shall only reprinted, or imported without such subject the person making default to consent, shall sell, publish, or expose the penalty aforesaid under the said to sale, or cause to be sold, published, act. or exposed to sale, or shall have in his Whenever an action at the suit of possession for sale, any such book, the author would lie against a person without such consent first had and pirating books, (Lord Byron v. Johnobtained as aforesaid ; then such of- ston, 2 Meriv. 29; Hogg v. Kirby, 8 fender shall be liable to a special Ves. 225; Stockdale v. Onwhyn, 5 action on the case, at the suit of the Barn. & Cress. 177, 7 D. & R. 632, author or other proprietor of the S. C. ;) or music, (Platt v. Button, copyright of such book, and the au- 19 Ves. 447; Clementi v. Walker, 2 thor shall recover such damages as Barn. & Cress. 861, 7 D. & R. 598, the jury on the trial of such action, S. C.), or prints or charts, (Blackwell or on the execution of a writ of in- v. Harper, Barnard. Cha. Rep. 120; quiry thereon, shall give or assess, Wilkins v. Aikin, 17 Ves. 425; Har. together with double costs of suit: rison y. Hogg, 2 Ves. jun, 323; Longand every such offender shall also for- man v. Winchester, 16 Ves. 271; feit such book or books, and shall Newton v. Cowie, 4 Bingh. 245, 12 deliver the same to the author or B. Moore, 457, S.C.) a court of equity other proprietor of the copyright will grant an injunction, to restrain a.


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