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confirmed by many resolutions of the courts (u). It hath even been held, that if one takes away and cloaths 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 (c). 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 (z) (6).
(u) Bro. Abr. tit. Propertie, 23. (y) Inst. 2. 1. 28. Moor. 20. Poph. 38.
(2) Poph. 38. 2 Bulstr. 325. i Hal. (w) Moor. 214.
P. C. 513. 2 Vern. 516. (.r) Inst. 2. 1. 27, 28. 1 Vern. 217.
(6) In the case of Lupton v. White, answers his own question thus:—“ If (15 Ves. 439, et seq.), Lord Eld took one man mixes his corn or flour with that rather a different view of our law from of another, and they were of equal vathat laid down in the text. His Lord- lue, the latter must have back the quanship thought, that a man who, by his tity that belongs to him, if that can be own tortious act in confounding two ascertained; but, if articles of different funds, makes it impossible for another value are mixed together, producing a to ascertain the amount of his proper- third value, the aggregate of both, and ty, is bound himself to furnish the through the fault of the person mixing means of distinguishing the two, or to them the other party cannot tell wbat relinquish the whole. What, Lord El
was the original value of his property, don asked, are the cases in the old law he must have the whole." of a mixture of corn and flour? and he Lord Eldon, therefore, did not think
8. Of authors in: 8. There is still another species of property, which (if it their own original literary
subsists by the common law), being grounded on labour and compositions. 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 clearly a [ *406 ] * right to dispose of that identical work as he 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 intirely in the sentiment and the language ; the same conceptions, cloathed 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
that an account was not to be taken, pay money belonging to his employer if that was practicable; but that, where into his own banking-house, and to his the person whose original dominion has general account, this money may not not the means of furnishing the ac- be distinguishable; but, should the count, the duty of supplying it rests agent become bankrupt, the whole sum with the wrong-doer; and if he fails to which appears to be due to him from distinguish the two properties which the bankers, will go to his assignees, he has confounded, he loses his claim and his employer can only come in as to any part thereof. (See also Lord a general creditor under the commisChedworth v. Edwards, 8 Ves. 50). sion. (E.c parte Townsend, 15 Ves.
The general rule, that, as against an 470). So, if the bankers had any acagent who has mixed the property of count with the agent by way of set-off, his employer with his own, so as to ren- that set-off would equally affect the der it undistinguishable, the whole may, money paid in to his account (though both at law and in equity, be taken to being, in truth, the money of his embe the property of the employer, is well ployer), as it would the agent's own settled; but, the same rule does not, in money, supposing the bankers to have all cases, hold against the creditors of no notice, displacing their equity. (Massuch agent: for instance, if an agent sey v. Bauner, 1 Jac. & Walk. 248).
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 thing of copyright by on the paper or parchment of another, the writing should law. belong to the owner of the blank materials (c): meaning thereby the mechanical operation of writing, for which it directed the *scribe to receive a satisfaction ; for, in works [ *407 ] 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,
(c) Si in chartis membranisve tuis sed tu dominus esse videris. Inst. 2. 1. carmen vel historiam vel orationem Ti- 33. See page 404. tius scripserit, hujus corporis non Titius (d) Ibid. s. 34.
Of copyright by statute.
the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence (e), Martial ($), 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 lawt.
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 pro(e) Prol. in Eunuch. 20.
case of Donaldson v. Becket, before the (S) Epigr. i. 67. iv. 72. xii. 3. xiv. House of Lords, 22 Feb. 1774, it was 194.
held, that no copyright now subsists in (8) Juv. vii. 83.
authors, after the expiration of the se(h) Since this was first written, it veral terms created by the statute of was determined in the case of Miller y.
queen Anne. Taylor, in B. R. Pasch, 9 Geo. III. (i) By statute 15 Geo. III. c. 53. 1769, that an exclusive and permanent some additional privileges in this respect copyright in authors subsisted by the are granted to the universities, and common law. But afterwards, in the certain other learned societies.
+ Mr. Christian observes, that “whe- and of several other judges, every person ther the productions of the mind could may still be permitted to indulge his communicate a right of property or of own opinion upon the propriety of it, exclusive enjoyment in reason and na- without incurring the imputation of ture; and if such a moral right existed, arrogance. whether it was recognized and sup- “ No less than eight of the twelve ported by the common law of England; judges were of opinion that this was a and whether the common law was in- right allowed and perpetuated by the tended to be restrained by the statute common law of England; but six held, of queen Anne; are questions, upon that the enjoyment of it was abridged which the learning and talents of the by the statute of queen Anne, and that highest legal characters in this king all remedy for the violation of it was dom have been powerfully and zea- taken away after the expiration of the lously 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 determination judges of the King's Bench, and the was contrary to the opinion of lord opinions of the rest, in 4 Burr. 2303." Mansfield, of the learned commentator,
perty by additional penalties and forfeitures : directing farther, that is, 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 (7): and a similar privilege is
(7) The statute of 54 Geo. III. c. copyright thereof, and the said author 156, enacts, that the author of any or proprietor shall make waste paper book, printed and published subse- of such book or books; and every such quently to the said act, and the assignee offender shall also forfeit three-pence or assigns of such author, shall have for every sheet thereof, either printed the sole liberty of printing and reprint- or printing, or published or exposed to ing such book for the full term of twenty- sale : Provided that all actions, suits, eight years, to commence from the day bills, indictments or informations for of first publishing the same ; and also, any offence committed against the said if the author shall be living at the end ct, shall be brought, sued, and comof that period, for the residue of his menced within twelve months next after natural life; and that if any person, in such offence committed. The title to any part of the British dominions, shall the copyright of books is directed by within the terms and times granted and the act to be entered at Stationers'-hall, limited by the said act as aforesaid, within a limited time, under a penalty print, reprint, or import, or cause to be of forfeiture of five pounds, together printed, reprinted, or imported, any with eleven times the price at which such book, without the consent of the such books shall be sold, or advertized author, or other proprietor of the copy- for sale; Provided that no failure in right, first had in writing; or, knowing making such entry shall in any manner the book to be so printed, reprinted, or affect the copyright, but shall only subimported without such consent, shall ject the person making default to the sell, publish, or expose to sale, or cause penalty aforesaid under the said act. to be sold, published, or exposed to Whenever an action at the suit of sale, or shall have in his possession for the author would lie against a person sale, any such book, without such con- pirating books, (Lord Byron v. Johnston, sent first had and obtained as aforesaid ; 2 Meriv. 29. Hogg v. Kirby, 8 Ves. then such offender shall be liable to a 225. Stockdale v. Onwhyne, 5 Barn. & special action on the case, at the suit Cress. 177), or music, (Platt v. Button, of the author or other proprietor of the 19 Ves. 447. Clementi v. Walker, 2 copyright of such book, and the author Barn. & Cress. 861), or prints, or charts, shall recover such damages as the jury (Blackwell v. Harper, Barnard. Cha. on the trial of such action, or on the Rep. 120. Wilkins v. Aikin, 17 Ves. execution of a writ of enquiry thereon, 425. Harrison v. Hogg, 2 Ves. Jun. shall give or assess, together with dou- 323. Longman v. Winchester, 16 Ves. ble costs of suit : and every such of- 271. Newton v. Cowie, 4 Bingh. 245), fender shall also forfeit such book or a court of equity will grant an injuncbooks, and shall deliver the same to tion, to restrain a fraud on the author's the author or other proprietor of the property : but, where the character of VOL. II,