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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
the common 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 (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 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 (5) Epigr. i. 67. iv. 72. xiii. 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 v.
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 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 (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, 3 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.
extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statutes 8Geo. II.c. 13,
the publication is such that no damages v. Aikin, 17 Ves. 424): for, although could be recovered in respect thereof an abstract or fair abridgment of a pubat law, equity will refuse to interpose. lication is allowable, (Dodsley v. Kin(Lawrence v. Smith, Jacob's Rep. 472. nersley, Ambl. 403. Gyles v. Wilcox, Walcot v. Walker, 7 Ves. 2. Southey v. Barnard. Cha. Rep. 368. Bell v. WalSherwood, 2 Meriv. 440. Lord and ker k Debrett, 1 Br. 451. Whittingham Lady Percival v. Phipps, 2 Ves. & Bea. v. Wooler, 2 Swanst. 431), yet a colour26. Gee v. Pritchard, 2 Swanst. 415). able abstract will be restrained. (ButThe plaintiff must also, in order to en- terworth v. Robinson, 5 Ves. 709. Cartitle him to an injunction, shew the nan v. Bowles, 1 Cox, 285. Macklin v. property in the pirated work to be Richardson, Ambl. 696. Gyles v.Wilcor, clearly vested in himself; either as the 2 Atk. 142). author, or as an assignee, for his own No property can be acquired in any benefit, or in trust for others : and this article copied, in the same language, interest must be distinctly stated in the from a prior work; (Barfield v. Nicholbill; for, the injunction ought to be son, 2 Sim. & Stu. 1); but a translation warranted by what appears in the bill, is as much entitled to protection as an not by what is brought forward merely original production. (Wyatt v. Bernard, by affidavit. (Nicol v. Stockdale, 3 3 Ves. & Bea. 78). Swanst. 689).
Forms of indictments, it has been de-. The llection of materials may es- cided, cannot be the subjects of copytablish a claim to copyright in a work, right, nor can a statement of the evinotwithstanding the subject may be ob- dence necessary to support indictments, vious to all mankind; and an injunc- and subjoined thereto, be so approprition will issue to stop the publication of ated. And, further, though an author, a work which is a servile copy of a pre- after the publication of one or more ediceding one, with merely colorable alter- tions of his work, sells the copyright, ations. (Matthewson v. Stockdale, 12 with an undertaking to prepare and Ves. 273, 276. Butterworth v. Robinson, edit the subsequent editions of the 5 Ves, 709. Tonson v. Walker, 3 Swanst. work, at a fixed price, he may publish 679). The case would be different if any new matter on the same general the new work contained, not only alter- subject, in a separate publication on his ations, but corrections and improve- own account; notwithstanding the inments of the original work; (Cary v. sertion of such new matter in the subFaden, 5 Ves. 26); and such additions sequent editions of the work of which and corrections may properly be made he has sold the copyright may be abthe subject of copyright. (Cary v. Long- solutely necessary to their proper comman & Rees, 1 East, 380). But, it will pletion. (Sweet v. Archbold, so held by not be permitted that one man should, the Vice-Chancellor, in Hil. T. 1828, under pretence of quotation, in fact and by the Lord Chancellor during the publish another's work, and defraud sittings after that Term). him of the fruit of his labors : (Wilkins No one who chooses to copy and
and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 574. All which
publish a specification of patents, can haps, to give the assignee the privileges thereby acquire a right to restrain an- conferred by the Legislature upon the other from copying the same; for these author. (Power v. Walker, 3 Mau. & are common property. (Wyatt v. Bar- Sel. 9). But, when a publisher has nard, 3 Ves. & Bea. 78).
been induced by such assignment, to When a plaintiff has permitted re- employ his capital and attention upon peated infringements of his copyright, a work, withdrawing them from other for a length of time, equity will not matters in which they might possibly interfere (by injunction, at any rate, have been more profitably employed; whether it may be proper to direct an and when the author has acquiesced in account to be kept or not,) before the seeing his parol assignment acted upon right is determined at law. (Platt v. for a length of time, a court of equity, Button, 19 Ves. 448. Rundell v. Mur- even if it acknowledged the author's ray, Jacob's Rep. 316).
strict right, would probably think his · Whether the act of publication abroad conduct entitled him to no summary makes a work, at once, publici juris, relief by injunction, and would leave may be very questionable; but there him to such remedy as he might have can be no doubt that, where an author at common law. (Rundell v. Murray, prints and publishes abroad only, or Jacob's Rep. 316). where he does not take prompt mea- The proprietor of a copyright must sures to publish here, he cannot, after file a separate bill against each booka reasonable time for his publishing seller taking copies of a spurious edihere has elapsed, and after some other tion for sale; for, there is no privity person, in the regular and fair course between such parties, and the defendof trade, bas published the work in this ants may justify their several acts upon country, sustain an injunction against totally dissimilar grounds. (Dilly v. such person. (Clementi v. Walker, 2 Doig, 2 Ves. jun. 487. Berke v. HarBarn. & Cress. 866, 870).
ris, Hardr. 337). A parol assignment of the copyright In cases of alleged piracy of literary of a work may not be sufficient, per- property, a reference is usually directed
+ Mr. Christian observes, that “ the the design or make a print from anoprincipal differences in these three sta- ther's design or picture; and those tutes concerning prints, seem to be who copy such prints within that time, these : the 8 Geo. II. gives an exclu- forfeit all their copies, to be destroyed, sive privilege of publishing to those and five shillings for each copy; the who invent or design any print, for 17 Geo. III. gives the proprietor an fourteen years only; the 7 Geo. III. action to recover damages and double extends the term to twenty-eight years costs for the injury he has sustained by absolutely, to all who either invent the violation of his right.”