^^^ M'^ ■A V^X;<;: * '^m^ B^i ^^ The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924029522137 Z589 .M44 """ ""'"""•> Ubrary ^'*«illflflllimiiiiiiwiA«^ '"erafy Propert olin 3 1924 029 522 137 A TREATISE LAWS OF LITERARY PROPERTY, ETC. ETC. ETC. A TREATISE LAWS OF LITERARY PROPERTY, COMFRISINO THE STATUTES AND CASES RELATING TO books, manuscripts, lectures ; dramatic and musical compositions; engravings, sculpture, maps, &c. INCLUDING THE PIRACY AND TRANSFER OF COPYRIGHT ; WITH A HISTORICAL VIEW, < AND DISQUISITIONS ON THE PRINCIPLES AND EFFECTS OF THE LAWS. By ROBERT MAUGHAM. SECRETARY TO THE LAW INSTITUTION, Author of the " Law of Attornies," ifc. " I have entered into a work touching Laws, in a middle term, between the specu- lative and reverend discourses of Pliilosopliers, and the writings of Lawyers." — Bacon. LONDON : PUBLISHED BY LONGMAN, EEES, ORME, BROWN, AND GREEN, PATERNOSTER ROW ; HENRY DIXON, 19, CAREY STREET, LINCOLN'S INN ; ADAM BLACK, EDINBURGH. 1828. J. EVUNS, PRINTEll, 91, BAJITHOLOMEW ClOSF., LONDON. TO THE RIGHT HONORABLE JOHN SINGLETON. LORD LYNDHURST. LORD HIGH CHANCELLOR OF GREAT BRITAIN, ETC. ETC. ETC. My Lord, Having composed a Treatise on the progress and present state of the Laws of Literary Property, with some Disquisitions on their Principles, and an examination of their effect on the interests of Literature, I was naturally desirous to dedicate my labors to the^istinguished Chief of that Court where those laws are the most appropriately administered — where they have ever received the most liberal construction — and where the most effectual remedy is afforded for the injuries of authors, and the proprietors of their copyright. A work thus devoted to the investigation of the rights and interests of the Scholar and the Artisi, it is no small privilege to be permitted to dignify with the name of a Nobleman, alike distinguished by his profound knowledge of the law, and his taste for the elegant arts, and the pursuits of literature. It was not long ago observed by your Lordship, during a debate in the Senate, " That it would be wise not to over- " whelm the Judges with business ; making them, in too " many instances, slaves to the technical part of their profession " — that they should have the opportunity of cultivating general VI DEDICATION. " literature, and be allowed the leisure to return to the pleasant " pursuits of early years, which, it was to be lamented, too " many of the Bar (greatly to the injury of the profession) " were obliged to suspend." Since the expression of these enlightened sentiments, your Lordship has been elevated to those seats of Legislation and Justi<;e,( where, the influence of such opinions will embellish Wisdom with the grace of Refinement. To the friends of literature it must be peculiarly gratifying that your Lordship has spared, from the weighty duties of your high office, some moments to the encouragement of genius, and bestowed your presiding sanction at assemblies convened for its stimulus and reward. Encouraged by the noble interest which your Lordship has thus evinced in the cause of letters, and grateful for the permission with which I have been distinguished, I beg to dedicate this work to one, who, by a rare combination of excellence, has attained the highest judicial station in this great Empire. I have the honor to be,, My Lokd, With the deepest respect. Your Lordship's Much obliged and very humble Servant, ROBERT MAUGHAM. Great James Street, October ^ith, 1828. LAWS OF LITERARY PROPERTY. )Entrolrurtot;& II9t00crtAtion. The promotion of learning seems, at the earliest periods of our history, to have been a favorite object, not only of our ancestors in their individual capacity, but of our system of jurisprudence. Thus schools and colleges were established and endowed in all parts of the kingdom, by the munificence even of private men. Scarcely a town existed, where an edifice of splendour or utility (now too often crumbling to ruins) was not devoted, like the halls of classic instruction, to the purposes of intellectual improvement. It was not beneath the dignity of the law to co-operate, in a noble spirit of pro- tection, with this general feeling towards the cultivation of letters. It was not deemed inconsistent with the fpolicy of our legal system (however objectionable it may now appear to the legislative philosopher) to grant to the scholar a partial immunity in the administration of its criminal code, which was denied to the uneducated offender. Justice relaxed its severity in favor of Learning; and, in veneration for those rare attainments of the mind by which the world has bedfci human- ized, Mercy interposed its hand, and saved the " learned clerk" from an ignominious fate. Still further, — the prorinpt and efficacious remedy with which the lords of the soil had armed themselves, in the form of distress for rent, for suit, or services, was superseded, not only in favor of the 'need- ful implements of husbandry and trade, but the hooks of a viii INTEODTJCTORY DISSERTATION. scholar were alsQ respected as sacred property, devoted to the service of mankind. The contrast is singular between the favor which was thus shown to literature in times comparatively savage, and the discouragement it encountered during the refinement of the last century. In the ages of semi-barbarism we perceive every inducement presented to the ingenious student for the improvement of his faculties, and the cultivation of letters. In the era of boasted enlightenment, we witness the curtail- ment of rights, and the imposition of burthens ! The dawning of a better day seems, however, of late to have appeared in our system of jurisprudence. The legisla- ture, moved by the enlightened spirit of some of its members, has indicated a liberality of feeling, on many recent occa- sions, towards the interests of science, literature, and art, which may reasonably encourage the expectation, that the claims of justice will, in future, be more favorably consi- dered than on former occasions, and the injury diminished, if not entirely removed. The principles which now prevail on the Law of Copy- right, it is well known, are totally at variance with the opinions of many distinguished judges, and especially of Lord Mansfield and Mr. Justice Blackstone. It has, there- fore, been remarked by Professor Christian, that every person may still be permitted to indulge his own opinion upon the propriety of the law, without incurring the impu- tation of arrogance. We shall accordingly avail ourselves of the privilege thus concedeci, and discuss the several statutes by which the in- terests of literature are affected, trace their successive stages, and examine the principles on which they are founded. In this preliminary part of the Treatise, the disquisition will be brief and general ; but we deem it necessary to advert to some of the leading points in this great literary contro- versy, before we enter on the details of the subject ; the INTRODUCTOUY DI SS EUTATION. ix more especially as some of them must necessarily be of a technical nature, and we are desirous of engaging the atten- tion, not of the professional student alone, but of every one who is interested in the progress of learning and science. Although the view which we must take of this subject will be unpalatable to many, there are, happily, several encouragements to the undertaking, which in no slight degree lead us to expect a favorable reception, as well with the public in general, as the liberal of all classes, and the learned in particular. " Indeed, all arguments in support of the rights of learned rflen in their works must ever be heard, said Lord Kenyon, with great favor, by men of liberal minds, to whom they are addressed(')." The en^ligliteiied spirit in which this feeling was expressed, was entertained in an equal degree by Lord Hardwicke. The Attorney-General of his time had argued that the Copy- right Act, being a monopoly, ought to receive a strict con- struction. " I am quite of a different opinion," said his lordship ; " it ought to receive a liberal construction. It is very far from being a monopoly. It is intended to secure the property of books in the authors themselves, or the pur- chasers of the copy, as some recompense for their pains and labor in composing works useful to the learned worldC)." Fortified by these high authorities, we may venture to arraign the present code, under which we think that literary property is oppressed with severer restrictions and greater burthens than any other production of human industry. Not only is its duration limited to the short period of twenty-eight years, but it is taxed for the benefit of wealthy corporations, to an amount always burthensome, and fre- quently destructive of all the remuneration it would other- wise afford. Indeed, the impolicy, as well as the injustice, (1) 7 T. E. 62r. (2) 2 Atk. 143. X INTEOnuCTOEY DISSERTATION. of the existing laws, must be admitted by every one who is in the least degree acquainted with the subject, and possessed of the smallest share of impartiality. Even the Universities acknowledge (as well they may) that the limitation of the term is grossly unjust ; and all classes must pronounce the imposition of eleven copies of all kinds 'of publications, to be contrary to every principle of equity. That it may not be supposed we enter on this critical part of our task with a feeling drawn only from the complaints of disappointed authors, or that we are disposed to put a forced and unmerited construction on the acts of the legis- lature, it may be remarked, that Sir John Dalrymple, one of the counsel (in the cause of Donaldson v. Beckett) who opposed the perpetuity of copyright, expressly urges that "this Act of Queen Anne, which was ushered in under the idea of encouraging literature, was very far from having such a tendency. What (he demanded) did the authors and book- sellers gain ? Why, a perpetuity was changed to a term of fourteen years only. A price was fixed, and a clause inserted, to force them to send copies to public libraries. What encouragements are these ? They, on the contrary, were discouragements." The history of these statutes regarding literary property, and the construction which they have received, present a striking proof of the injustice of their nature. Nothing, in the first place, could be worse than their origin; and they have consistently continued in a state of undeviating oppression and severity. They were established in the most despotic periods of our political annals, and were designed for the express purpose of suppressing all free inquiry, and the diffusion of all kind of knowledge, in any way relating to the affairs of the church and state. But although no book of any kind whatever could then be published without the license of the constituted autho- rities, and though (compared with the present laws) the moderate number of three copies were required to be delivered to INTBODUCTOllY DISSERTATION. XI the King's librarian and the Vice-Chancellors of the two Universities, still there was no restraint on the duration of an author's rights. So long as the press could be held in sufficient subjection, it was not the intention, even during the most arbitrary administration of the aflPairs of Government, to curtail the property of inoffensive writers, or burthen them with exactions unknoW|i to other classes of the community. Barring the saicred ground of theology and politics, the learned and| ingenious of those times were allowed to exercise their talents, and reap the fruits of their intellectual labor, like every other subject of the realm, liable only to the tax, which, .although obnoxious enough in principle, was compa- ratively mild in amount. " When," to use the language of Milton, " books were; as freely admitted into the world as any other birth ; when the issue of the brain was no more stifled than the issue of the womb ; when no envious junto sat cross-legged over the nativity of any man's intellectual oiTspring," — when the licensing system ceased, and men were permitted to publish their works on their own responsibility, — this exaction of three copies soon ceased altogether. It was reserved for the " Augustan age of English lite- rature," — for the days of Pope, Swift, and Addison, — to revive this odious impost, and to increase it in a threefold degree ! To the same enlightened era we are indebted for the reduction of the perpetual right, which the justice of the ancient law of the land had previously protected, down to a space, often briefer than that which was occupied in the composition of the work ! Still, it seems that a remnant continued of the juster feeling of the olden time ; for though the language of the statute limited the administration of justice to fourteen years, (as modern ingenuity construed it) its spirit was understood to apply only to the penal enactments against piracy, — leaving untouched the ancient remedy for the recovery of actual damages. This, it seems, was an honest blunder, into which Xll INTRODUCTORY DISSERTATION. even the marauders on literary property had fallen ; and in future they were enlightened by the expounders of the law, aild permitted to rove at large over the legalized spoil. We reserve to another part of the Treatise the investi- gation of the reasoning or sophistry by which it was thus established, to the satisfa^ction of Jive out of eight judges, that the Act of Anne, — in its preamble expressly professing " to prevent injury to authors, and to encourage learned men to write useful books," — really reduced the perpetuity in copy- right (which existed, according to a majority of the judges, at common law) to fourteen years ! yet, such had been the plain interpretation by the common sense of all parties, that not one of the graduates or students of any of the Universities, nor even the lower order of publishers, however piratically inclined, — no one, from the 8th of Anne, in 1710, until 1774, ever dreamt of such a construction. After no less, however, than sixty-four years, some one, with more technical ingenuity than love of literature, enjoyed "the bad eminence" of over- throwing the evident spirit and intention of the act, by the supposed ambiguity of its language. We have seen thus far, that whenever the rights of authors were brought before Parliament, they were generally abridged, or their burthens increased. Even the favorable construction which the legislature itself put upon the statute of Anne, with regard to those books which (requiring not the aid of penalties to protect them) were not registered, their interpretation was so inefficiently expressed, that it was held by the judges not to control the literal meaning of the previous statute. Hence, in the year 1812, it was decided that the eleven copies of every book, whether it sought the protection of the statute or not, must be delivered according- to its provisions. It was soon after the infliction of this last blow to the interests of literature, that the injuries of authors were again introduced to Parliament. Some mitigation of the library tax was requested. The Committee to which the subject was referred, recommended that one copy should be delivered INTUODUCTORY DISSERTATION. Xlll to the British Museum onlif, or at all events that the number should be restricted to five copies. The House, however, was inexorable. The whole eleven copies were persisted in, and the only advantage which the proprietors of copyright obtained-r-wrung, it seems, with a " slow consent," but which for very shame could not be refused,r^was the extension of the term to twenty-eight years certaihj which had previously depended on the life of the' author, and a further term in case he lingered beyond that!time,iuntil the cl6se of his existence, leaving his family to be provided! for by precarious benevo- lence, or the stinted relief of parochial charity. Although the advocates of the Universities were thus inflexible in exacting the full penalty of their " bond;" it must be allowed they liberally and - strongly enforced the rights of authors in some other important respects. Professor Christian stated, with iconsiderable ability, the hardship and absurdity of the law a'sit then existed. " If an author., when he is advanced in age offer a valuable work for sale, as the production of the. labor of a long life, he will have the mortification to be told, that the price of his work must necessarily be much lower, than if he had com- pleted it twenty or thirty years sooner at an earlier period of life. Thus, (said he) when the work is more valuable to the rest of the world, it becomes less profitable to the author and his family." Whilst the learned Professor thus does justice, with good feeling and eloquence to the cause of letters, on a topic in virhich his alma mater was unprejudiced, it may be useful to notice what has been done on this important part of the subject by the legislature, in reference to the same kind of -rights, when in the harids of a powerful corporate body, instead of a helpless individual. The decision which the House of Lords, in its judicial capacity, pronounced in the year 1774, upon the construction of the statute of Anne, equally affected the Universities as xiv INTEODUCTOKY DISSERTATION. the public in general; and as there was no exception in the statute in favor of copyrights held by the Universities, their duration was brought down, like those of individuals, to twenty-eight years; and the clause in favor of surviving authors could not apply to a corporate body. The Universities^ therefore applied to Parliament to restore, in their collec- tive case, the right which had been taken from individual authors, and they succeeded in their application. A legal, anomaly, somewhat curious, must follow this enactment;— The copyrights held by the Universities consist of works, which of course are not composed by a body of men appointed by the Universities, or paid out of their funds. They have been either purchased of individual authors (which we may conjecture is not often the case), or bequeathed by them. Now the author can coiivey or bequeath that only which by law he possesses, namely, a short lease in the property ;fyet the corporate purchasers or legatees receive, as it were, the freehold inheritance to themselves and their successors for ever! Such is the measure of equal justice, and legal consistency, which is manifested on the face of these statutes. The state of the law in other countries affords not only a strong and additional argument in favor of the policy of extending the rights of authors, and diminishing the burthens of literature ; but indicates the sentence of other nations on the injustice of our regulations. In the Netheklands, three copies only are required to be deposited in the public libraries. — In Austria, two. — In France, before the revolution, four copies, but since that event, two only are required for the national library. In America, Prussia, Saxony, and Bavaria, only one copy can be demanded. It is remarkable, also, that in all these instances the copies are not required unless the exclusive copyright is reserved. And whilst such is the state of the law over all Christendom, (except in this part of it) in regard to the imposition of the library copies, it is observable that there. INTKODUCTORY DISSERTATION, XV too, the duration of the right is either perpetual, or considerably more extensive than the term allowed in this country. . Thus, in Trance, the term of copyright is twenty years after the decease of , the author. In most, if not all, of the German states, it is perpetuaL If the comparative superiority of the practice on the continent were not well ; authenticated, we should have anticipated the contrary to be the case. We have been too much accustomed, amidst the conflicts with our neighbours, to laud our own laws and institutions, and utterly to condemn every thing belonging to those by whom we were opposed. We suspect,, that besides the evident improvement which might be effected by -imitating this better code of literary jurisprudence, there may yet be made other discoveries, by which it will appear that we have not altogether monopolized the maxims of wisdom and justice. There can indeed be no subject which ought to engage the attention , of the friends of literature, and the reading public, in a higher degree than the rights of authors and publishers, and the means by which the literature of Great Britain may be enabled to compete with, if it cannot surpass, the excellence and cheapness of the continental press.: It may* fairly be asked, what is the consequence to literature in general, and the community at large, of this juster system of literary protection, which thus prevails amongst the other nations of Europe 1 Following the objec- tions which have been raised by the adversaries of improve- ment, it maybe demanded. Do the continental writers and their publishers abuse the power which the laws afford them? Do they (as it has been idly imagined would be the case here) , suppress valuable works, or limit their diffusion and usefulness hy exorbitant. prices'? No ! In France, as Dr. Johnson observed, they have a book on, every subject. In Germany, the abundance of literary XVI INTRODUCTORY DISSERTATION. works is still more extensive. In both countries, the price of books i§ beyond all proportion lower than in Great Britain. Compare, also, the literature of France and Germany, where the one is limited (though not to the contracted period of twenty-eight years), and the other is free. Does the perpetuity of German copyright render the writers of that country less original or profound than those of France ? Does it tend to a superficial manner of wtiting? No! we believe there are of late years more great and original works of enduring excellence published by the German press, than by that of any other country. Let it be recollected, also, that the limited and stinted protection which is here allowed to intellectual labor, was not declared to be the law of the land until the year 1774. Ante- rior to tfcat time, a more liberal rule was understood, if not expressed ; and it seems not that the wider latitude of literary rights which then prevailed, was productive of the mischiefs that have been anticipated. Many of tiie great and lasting works, which constitute the glory of English literature, and shed a bright lustre upon the age in which they arose, were composed before this exposition of the law was announced. True it is, that, in spite of that interpretation, numerous accessions of a standard nature have been made to the treasures of national learning ; but these have been encouraged by other means than Acts of Parliament — they have been produced, in spite of them, by the irrepressible energy of a few of our distin- guish-ed eountiymen. It cannot be urged that we have no experience to guide us in the melioration of the law. It was not, as we have seen, until about fifty-three years ago, that the construc- tion now put upon the old statutes was attempted ; so that in all time, since the first book was published in this country, until the reign of Queen Anne, did a perpetuity in copyright exist, — not only without prejudice, but with benefit to the public; and since the passing of the statute in question INTROLIUCTORY DISSERTATION. XVII until the year 1774, no evil was imagined to arise by extend- ing, to literary property the common protection afforded to all other. Nay more, to show that the chain of experience has been unbroken, — before the lapse of a single year, the Uni- versities obtained the restoration of their rights, and have enjoyed them to the present time. No disadvantage has arisen to the interests of literature, or the public, by allowing to the Universities that privilege which has been denied to the authors of the very works they possess. If an expe- riment were necessary before justice could be done to literary men, it has therefore been sufficiently made ; and the time, we should presume, has now arrived, when this deep stain on our statute-book may be for ever erased, and even-handed justice dealt alike to all. It cannot be denied that private interest should yield to the public good ; but in this instance, the community, so far from being benefited by the united evils of unequal restraint and anomalous taxation, evidently sustains an injury. If, however, there be a reasonable doubt on the policy of administering just and equal laws, srirely those who devote their lives lio the interests of literature and philosophy, are entitled to tlie " benefit of the doubt." Surely no man of honorable spirit, — not to say of a liberal one, — can hesitate on the propriety of giving unlimited copyright, at least, a fair trial. If, contrary to all reason, as well as all experience, mischief should arise, then, but not till then, let the fetters be new riveted, and let the yoke and the burthen be replaced on the shoulders of the ingenious and the intelligient. We have thus given a brief sketch of the condition in which literary property is situated, and the circumstances which have attended it. We trust that the wrongs at which we have taken a hasty glance, are calculated to excite some degree of attention, even in the minds of those whom they do not personally affect, and that a full examination of the sub- ject will be patiently encountered. The public have an equally b XViii INTRODUCTORY DISSERTATION. stWHg intei'est, and a positive du't^, in prom'oting the genfei*Sil ad'o^tion o^just pfitt'Ciples— 'each man beiBg itiditidtolly 6=ott- cerned in enforcing and upholding that which is tight aWd jnst ; since the mischief that is doile to his neighbour to-day, may be peirpetrated on himself to-tti'ori'bw. In arran^ng the plan and general divisions gp the wobk, it has teenthought most desirable in the first book — after defining the nature oHte'rary property, and considering its claims to ptotection under the cotep'rrfiensive provisions of the coBnmon law-^to 'tali-e a historical view of the or Jgin and progress of the legislative regulatioBS-^ subdivided under the general heads, of the duration of copyri^t, and the tax imposed upon the publication of books. We shall thus be enabled fully to trace thesubject from the memorable invention of printing, through tlie inteireSting periods in out bistdrjf Which imme- diately succeeded. And we shall also have ah oppoiTtfMty of shewing the interest which many celebrated works hive attained in tlie annals of the law, as well as of literature. This coiirse indeed appeared necessary as well as interesting ; for although the last Act of Parliament on the copyright of books' has indonporated the provisions of the former staitutfes, the past require to be referred to for the purpose of as&isting the construction of the present. The old statutes, however, will be printed in the smallest type, and appended to their analysis by way of notes. The various classes who are irfterested in literary undertakings ^-in securing them from invasion, cir avoiding the consequences of violating the law — in the mode of transferring copjTight and the contingent interests of authors — must naturally be desirous to ascertain the decisions which have occurred in the courts of justice regarding these subjects. And although in some respects the law remains imperfectly defined, still it appeSS's highly important to collect, and appropriately arrange, the legal doctrines Which have laeen pronounced, and the facts and principles on which they are grounded. In the second book, therefore, besides treating of the duration and extent of copyright, of the library tai, and the registry at Stationers' Hall, it has been deemed necessary to devote a considerable portion of the treatise to the details of pirating copyright, its transfer, &c. These it is presumed, will be found of great practical utility, both to authors and publishers. The third book, and the notes which follow it, contain the disquisitions on the principles of the laws and their effect on literature. ANALYTICAL TABLE OF CONTENTS. Introductory Dissertation. HisToiucAL View. Dfifinition and Nature of Literary Property. Its perpetuity by the Common Law. Its Recognition ) '" ^"'^ °' \ Parliament, t by ancient Customs. Duration Origin of the Statute 8 Anne. " "^ Intention of tlie Legislature. Copyright. Construction of the Act prior to 1775, J , 12 Qeg. II. Equity, Law. The Statutes, f 121 ^e;u ANALYSIS. Transfer- ring Copyright &c. The present State of the Law, cmtinued. 5 . Transferring Copyright generally. % Contracts of Authors aai Booksellers. 3. Bequeathing Copyright. Seizure of Copyright. {'"^^X^-Jy Creditors. Principles cf the Laws, and their CoNSEQi>£NbEs. _ . J 1 . The Objections to a Perpetuity considered. \ S. The Injustice and impolicy of the Umitjitiop. Tax. 1. The Grounds of the Library Claim examined. ?. Effect of the Tax on { ^f^^^re. Notes, comprising Authorities on the Injustice and Impolicy of the Law. Table of litigated Works, apd Nsme^ qf C^^es. Index. BOOK I. HISTORICAL VIEW OF THE LAW. LAWS OF LITERAEY PROPERTY. ■» BOOK I. FIRST PART. OF THE DURATION OF COPYRIGHT. CHAP. I. FKOM THE INVENTION OF PRINTING, TO THE STATUTE 8 ANNE, 1710. SECT. 1. Of the definition and nature of Literary Property. Literary Property, or Copyright, may be defined to be the ownership or rightful possession to which an author, or the person to whom he assigns it, is entitled in the copyQ) or original manuscript of his literary works ; and it comprises the exclusive right of printing and publishing copies of any literary performance, including engravings, musical compo- sitions, maps, &c.(°) I/ord Mansfield adopted the word " copy" in the technical sense in which, he said, that name or term had been used for ages, to signify an incorporeal right to the sole printing and publishing of something intellectual, communicated by letters(^). Mr. Justice Aston also observed, that " the copy of a book seemed to have been not familiarly only, but legally, used as a technical ex- pression of the author's sole right to print and publish: and that these expressions in a variety of instrmnents were not to be considered as the creators or origin of that right or property, but as speaking the language of a known and acknowledged right 3 and, as far as they were active, operating in its protection (■*). The right of an author to the exclusive use and publi- (f ) " Copy," the autograph, the original, the archetype ; that frooL which any thing is copied. Johnson. " The first of them I have forgotten, and cannot easily retrieve, because the copy is at the press. Dryden. (2) Tomlin'S' Law Diet. Articles " Literary Property" and " Copyright." (3J 4 Burr. 2396. (4) lb. 2346. " Copy of a book," was likewise described by Mr. Justice Wilks as. the term which had been used for ages to signify the sole right of printing, publishing, and selling copies thereof. 4 Burr. 2311. » B Z HISTORICAL VIEW. cation of his own literary compositions, is classed by Sir W. Blackstone amongst the species of property acquired by occupancy, being grounded on labor and invention('). When a man, says the learned Commentator, by the exertion of his rational powers has produced an original work, he seems to have clearly a 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 the right. Now the identity, says he, of a literary composition^ consists entirely in the sentiment and the language. The same conceptions, clothed iii 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 j and no other man, it hath been thought, can have a right to exhibit it, espe- cially for profit, without the author's consentQ. It will not be. necessary to enter into any elaborate con- sideration of the arguments on the origin of property. There seems no rational ground for creating a distinction between literary and any other species of property. The rights of each are equally entitled to protection. Such a distinction cannot be founded upon the degree of labor bestowed in the acquisition of other objects of property. Even the right to the possession of land has been acquired as often by good fortune as by merit, and is frequently retained without the bestowment of labor. The property in a literary work may be acquired in the same way. The first thought may have been accidental, which labor has enlarged and improved. The descenda^ts of those who have produced intellectual treasures, are as well entitled to inherit them, as the posterity of the accumulators of land or money. To say, that the definition of property in the old legal authorities does not include the property in question, can be nothing to the purposes of justice. If it does not include it, the definition is a bad one, because it is not sufficiently comprehensive. Besides, if literary works possess none of the usual charac- teristics of property, according to its present technical de- (1) 2 Blac. Com. 406. (2) lb. 406. The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials; meaning thereby the mec/io»icar operation of writing, for which it directed the scri6e^to receive satisfaction; for, in works of genius and invention, as in panting on another man's canvas, the same law gave the canvas to the painter. As to any other property in the works «f the understanding, the law is silent; though the sale of lilerarv copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence (a), Martial(6), and Statius(c). (a) Prol. in Eunuch, SQ. (6) Epigr. i. 67, iv. 72, xiii. 3, xiv. 194 (c) Juv. vii. 83. NATURE OF LITERARY PROPERTY. 3 scriptioDi let them form a class of themselves. Injustice should not be done for the sake of preserying consistency in verbal or metaphysical distinctions, which have nothing but their antiquity to support them. It is held by all the law authorities, that an author pos- sesses a strictly legal property in his literary labors, whilst they remain in manuscript. There can be no real distinction in the nature of the property, in the sentiments or ideas and lan- guage, before and after publication. The law which prohibits the publication of his manuscript without his consent, should also protect the printed copy, and prevent the appropriation of the profit of publication by any other person than the author. The definitions adduced by those who argue that there is a want of " property" in literary works, are evidently very inadequate to the objects of property in the present advanced state of society. They are adapted to things in a primitive, not to say imaginary, state ; when all things were in common ; when that common right was to be divested by some act to render the thing privately and exclusively a man's own, which, before it was so separated and distinguished, was as much the property of another. These definitions also, it has been justly observed('), will be found prineipally to ap^y to the necessaries of life, and the grosser objects of dominion, which the immediate natural occasions of men called for 5 and therefore the property so acquired by occupancy, was required to be an object useful to men, and capable of being fastened on. Enough was to be left for others. As much as any one could use to the advantage of life before it spoiled, in so much he could fix a property. Whatever was beyond this, was more than his Share, and belonged to others. These definitions give a sort of property little superior to the legal idea of a beast-common ; the bit of mouth snatched, or taken for necessary consumption to support life. Thus ruminating bac^ to the origin of things, men lose sight of the present state of the world, and end their enquiries at that point where they should begin their improvements. But distinct properties, says Pufendorf ('), were not settled at the same time, nor by one single act, but by successive degrees, nor in all places alike ; but property was gradually introduced, according as either the condition of things, the number and genius of men re- quired, or as it appeared requisite to the common peace. Since those supposed times of universal communion, the objects of property have been much enlarged by discovery, invention, and arts. The mode of obtaining property by occupancy has been abridged ; and the precept of abstaining (1) ffiUar V, Taylor, 4 Burrow, 2339. (2) B. 4, c. 4, sec. 6. B 2 4 HISTORICAL VIEW. from what is another's, enforced by laws. The rules attending property must therefore keep pace with its increase and improvement, and must be adapted to every case. A DISTINGUISHABLE EXISTENCE in the thing claimed as property, an actual value in that thing to the true owners, are its essentials ; and these are not less evident in the case of literary property, than in the immediate objects of those definitions which relate to the primitive condition of things. There is a material difference greatly in favor of this sort of property, from that gained by occupancy, which before its occupation was common to every one ; because a literary work is originally the author's; and therefore unless clearly rendered common by his own act, and full consent('), it ought still to remain his property. The utility of the thing to man required by the definition in PufendorfO to make it an object of property, has been long exploded, as appears from Barbeyrac's note on this very passage, where it is held an unnecessary and superfluous condition('). The best rule both of reason and justice seems to be, to assign to every thing capable of ownership a legal and deter- minate owner. For the capacity to " fasten on," as a thing of corporeal nature, being requisite in every kind of property, plainly partakes of the narrow and confined sense in which property has been defined by authors in the original state of things.- A capacity to be distinguished^ answers every end of reason and certainty, which is the great favorite of the law, and is all that wisdom requires to secure their possessions and profits to men, and to preserve the peace(*). " Nothing," says Professor Christian, " is more erroneous than the practice of referring the origin of moral rights, and the system of natural equity, to that savage state which is supposed to have preceded civilized establishments, in which literary composition, and of conse- quence the right to it, could have no existence. But the true mode' of ascertaining a moral right, is to inquire whether it is such as the reason, the cultivated reason, of mankind must necessarily assent to. No proposition seems more conformable to that criterion, than that every one should enjoy the reward of his labor, the harvest where he has sown, or the fruit of the tree which he has planted." Whether lite- rary property is sui generis, or under whatever denomination of rights (1) The constructive consent, deduced from the act of publication to the world, will be discussed in the next section. (2) Lib. 4, caj(. 5. (3) Things of fancy, pleasure, or convenience are objects of property, and so con- sidered by the common law : even so insignificant a thing as a popinjay, a monkey, a parrot, or the like; in short, any thing merchandizable and valuable. 12 H. s,. 3. a. b. &c. ; Bro. Abr. Tit. " Property," pi. 44 ; 1 Comyn's Digest. 602. (4) 4 Burr. 2340. COPYRIGHT BY THE COMMON LAW. 5 it may be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations. Thus considered, an author's copyright ought to be esteemed an invaluable right, established in sound reason and abstract morality^). The consideration of the objections advanced against these definitions of the nature of literaiy property, we defer to that part of the work in which the justice of the laws are discussed. The Legislature has thought proper to deal with literary works as "property," and we have deemed it sufficient for the E resent purpose to state, from the authorities to which we ave referred, the general principles by which the question ought to be regulated. We proceed, in the next place, to consider the subject as it stood at the common law, prior to the existence of any statute, and independent of any recog- nition of the exclusive rights of literary property, either by the State or the Parliament. SECTION II. Of the perpetuity of Copyright by the Common Law. It is a leading principle in the English Law, and forms a just ground of its praise, that it provides redress for every wrong and grievance which the subject may suffer from the invasion of his rights ; and the remedy, says Coke, varies and is adapted according to the variety of the right(0. From the benefit of this general rule of extensive justice, literary men ought not to be excluded. The exertions of the mind deserve as much encouragement as those of the body. Whatever may be suggested by the subtilty of legal reasoning, drawn from the origin of property, it is clearly the interest of society to afford that protection to literary labor, which is readily extended to every other species. The reasoning which demonstrates the expediency of guarding the fruits of manual industry, must equally establish the adoption of the same protection to those of intellectual acquirement. Pro- perty will not be acquired if ft be not protected. The very existence of society, and its best interests, depend on the encouragement of industry ; and as national wealth depends on labor, so does knowledge depend on mental exertion. Yet neither the corporeal nor the intellectual powers will be freely and fully exerted, unless they are permitted to enjoy their productions unshackled by restraint, and unencumbered (1)2 Comm. 407, note. (2) 3 Coke 48, a. 6 HISTORICAIi VIEW. by burthens, from which other classes of the community are exempt. It being intended in this section to review the subject of literary property as it anciently stood, according to the common law, it will be necessary to notice the compre- hensive character of this part of our system of jurisprudence : and without following the exact phraseology of the ordinary definitions, we may describe the common law to be The law of this kingdom, as it was generally holden before any statute was enacted in Parliament to alter it. It includes the laws of God and nature. It is grounded upon the general customs of the kingdom, and comprises the principles and maxims of the laws, which are founded upon reason, observation, and experience, acquired by long study, refined by learned men in all ages, and it is thus said to be the " perfection of reason." Its end and object is justice, in the most comprehensive sense. It is the common birth-right of the subjects of the reialm, for the safeguard and defence, not only of their goods, lands, and revenues, but of their families, fame, property, and lives ('). The common law is described by Bracton(') as univer- salis/ comprehensive. There seems no reason for excluding from its protection any kind of property, however insignificant in its nature, or trifling in its value. The rules in regard to property, like the principles of the underwritten law, are of the highest antiquity, and must ever have been the same ; but the objects to which they are applicable, were not a,ll at once known, and many things have been disputed which were afterwards established as objects of property('). The claims of justice do not depend on antiquity. There are many things, the uses of which were unknown in ignorant times, that have now become valuable ; and it seems as unjust to shut out from legal protection the intel- lectual labors of ingenious men, as it would be to declare that the mariner's compass and gunpowder, which were inven- tions within the period of legal memory, cannot be included in the laws of property(''). The absence of judicial authority can form no objection (1) Co. Lit. 97, 142. Treatise 6f Laws, p. 2. (2) Lib. 1, c. 3. (3) There is a case reported in the Year Book of a blood-hound, where it was argued, that when out of possession, the property in it ceased — that felony could not be com- mitted of it— that it was not titheable, would not pass by a grant of omnia bona, &c. Yet it was held, " that where any wrong or damage is done to a man, the law gives him a remedy." 12 H. S, f. 3, a. b. So of a grey-hound. SI Elis. Owen 93, Cro. Ela. 125, (4) It was held by Mr. Justice Willes, that the principles of private justice, moral fitness, and public convenience, when applied to anew subject, made common law without a precedent — much more when received and approved by usage. 4 Burr, 2312. For the usage, see the next sectimi. COPYHIGHT BY THE COMMON LAW. 7 to the claim. It was not decided until within a century of the present time that a title to literary property could be maintained, even prior to publication ; atid that according to the principles of the common law, no distance of time, howeiver great, could authorize a publication vyithout the consent of the author : as in the cases of Jjord Clarendon's History and the Letters of Pope. Many other points of law have also been decided in recent tiines, fdr which there is no precedent. For instance, it is not many years since, for the first time, it was held actionable at cominon law to give, knowingly, a false character, on the faith of which credit had been given, and loss sustained — a decision which was evi- dently founded on the general maxim, that " there is no injury without a remedy." Having thus shewn the state of the question upon the general and comprehensive principles of the cpmiuon law, prior to any legislative enactmeijt or recognition, and inde- pendently of any judicial ^authority, we come now to the consideration of the reasonings which have been adduced, and the judgments pronounced by many learned judges on the question of perpetuity, the substance and principal points of which we shall select, and endeavour to present in the most condensed form. Of all the judges before whom this question has been discussed, the majority have always decided that, by the common law, an author was entitled to the exclusive enjoy- ment of his copyright in perpetuity. It is remarkable also, that amidst the many controversies which have taken place on this important subject, it was never in the slightest degree denied that the manuscript of an author was protected by the common law, and that it was illegal to take his manuscript, or in any way to use or publish it, without the clear and express consent of the author. On the contrary, in the several cases which have been argued on the extent of the right since the several Acts of Pariiament on copyright were passed, it has been all along,, even by the advocates whose business and duty it was to contend that under those statutes the term of exclusive copyright was limited to fourteen years, expressly admitted, That by the common law, an author is entitled to the copy of his own work until it has been once printed and published by his authority ; and it has been also conceded, that the several cases in Chancery in which injunctions were granted to restrain the printing and publishing of the copy, were agreeable to the common law, and that the relief afforded in those cases was properly given in consequence oi the legal right{') . y) 4 Burr. 2396. 8 HISTORICAL VIEW. Now it seems impossible to shew that there is any sound distinction by the common law, between the exclusive right to the copy after publication, and the right prior to it. For; as Lord Mansfield observed('), the common law as to the copy before publication, could not be founded in custom. Prior to 1732, the case of a piracy before publication never existed — it was never put or supposed. There is not a syllable about it to be met with any where. The regulations, the ordinances, the Acts of Parliament, the cases in Westminster Hall, all relate to the copy of books after publication Ijy the authors. From what source then, demands his Lordship, is the common law drawn, whifch is admitted to be so clear in respect of the copy before publication ? From this argument, — because it is just that an author should reap ihe pecuniary profits of his own ingenuity and labor, it is just that another should not use his name without his consent. It iaft that he should judge when to publish, or whether he ever will pubUsh. 'It is fit he should not only choose the time, but the manner of publication, how many,' what kind of volumes, what print. It is fit he should choose to whose care he will trust the accuracy and correctness of the impressions— in whose honesty he will confide not to foist in additions. These, and other reasonings of the same effect, are suf- ficient to sliew that it is agreeable to the principles of right, the fitness of things, convenience and policy, and therefore to the common law, to protect the copy before publication. But the same reasons, said the learned judge, hold after the author has published his work. He can reap no pecu- niary profit, if the next moment after it comes out it may be pirated upon worse paper, and in a worse print, and in a cheaper volume(')- The author may not only be deprived of any profit, but lose the expence he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He cannot prevent additions. He cannot retract errors. He cannot amend or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace, and against the will, of the author ; may propagate sentiments under his name which he dis- (!)■ 4 Burr. 2397". (2) It is admitted, that if the literary compositions of an autlior be taken from him icfore publication, he may maintdn an action of trover or trespass. But how are the damages to be estimated ? Should the jury confine their consideration to the value of the ink and paper? Certainly not : it would be most reasonable to consider the known character and ability of the author, and the value which his work would produce by the publication and sale. And yet what could that value be, if it was true that the instant an author published his works, they were to be considered by the law as given to the public, and that his private property in them no longer existed ? Per Mr. Justice Aston, 4 Burr. 2341. COPYRIGHT BY THE COMMON LAW. 9 approves, repents, and is ashamed of. He can exercise no discretion as to the manner in which, or the persons by whom, his work shali be published ! Such are the monstrous conclusions which would follow the admission of the doctrine, that an author loses by the act of publication his exclusive right to the productions of bis literary labor. The claim of the author to the exclusive right of printing and publishing his own work, is founded, says Mr. Justice Aston('), upon the original right to this work, as being: the mental labor of the author, and that the effect and produce of the labor is his. It is a personal incorporeal property, saleable and profitable ; it has indicia certa, for though the sentiments and doctrine may be called ideal, yet when the same are communicated to the sight and understanding of every man, by the medium of printing, the work becomes a distinguishable subject of property, and not destitute of corporeal qualities^). But it is said that the copy is necessarily made common after the book is once published. Now without publication, it is useless to the owner, because without profit ; and property without the power of use and disposal, is an empty sound. In that state, it is lost to society in point of improvement, as well as to the author in point of interest. Publi- cation, therefore, is the necessary act, and the oply means to render this confessed property useful to mankind, and profitable to the owner — in this, they are jointly concerned. Now to construe this only and necessary act to make the work useful and profitable, to be destructive at once of the author's confessed original property, against his express will, seems to be quite harsh and unreasonable ; nor is it at all warranted by the arguments derived from those writers who advance, that by the law of nature property ends when corporal possession ceases ('). (1) 4 Burr. 2341. (2) All the metaphysical subtilties from the nature of the thing may be equally objected to the property before publication. It is incorporeal — it relates to ideas detached ftom any physical existence. There are no indicia — another may have had the same thpughts, upon the same subject, and expressed them in the same language verbatim. At what time, and by vfhat act, does the property commence ? The same string of questions may be asked upon the copy before publication : — Is it real or personal ? Does it go to the heir or to the executor ? Being a right, which can only be defeated by action, is it as a chose in action assignable or not ? Can it be forfeited ? Can it be taken in execution ? Can it be vested in the assignees under a Commission of Bankruptcy ? Per Lord Mansfield, 4 Burr. 2397. (3) Barbeyrac clearly observes, that the right acquired ii'om taking possession, does not cease where there is no possession ; that perpetual possession is impossible ; that the above hypothesis would reduce property to nothing ; that the consent of the proprietor to the renunciation of the right, ought to appear, for as possession is nothing else but an indisputable mark of the will to retain what a man has seized, so to authorize us to look upon a thing as abandoned by him to whom it belonged, because he is not in possession, we ought to have some other reasons to believe he has renounced his personal right to it. 10 HISTORICAL VIEW. Bakbeyeac, in his notes on Pufendoef, says, that though we may presume an abandonment in respect to those things which remain such as nature has produced them, yet as for other things which are the fruits of human industry, and which are done with great labor and contrivance, it cannot be doubted but every one would preserve his right to them till he makes an open benunciation. Now there is no open renunciation of literary property, but a constructive one only, deduced barely from the act of publication. Whether there be a " renunciation" or not, is a fact which ought not to be presumed ; wherever it exists, it should be distinctly proved. It is always capable of proof, where the abandonment has really takein place, and when it cannot be proved, the legal inference, as in all other kinds of property, ought to be in favor of the original owner. But then it is contended, " if a man buys a book, it becomes his own." What ! is there no difference (exclaimed Mr. justice Aston) betwixt selling the property in the work, and only one of the copies ? To say, " selling the book conveys all the right," begs the question. For if the law protects the book, the sale does not convey away the right from the nature of the thing, any more than the sale conveys it where the statute protects the book. The proprietor's consent is not to be carried beyond his manifest intent. Would not such a construction extend the partial disposition of the true owner beyond his plain intent and meaning ? Can it be conceived that in purchasing a literary composition at a shop, the purchaser ever thought he bought the right to be the printer and seller of that specific work ? The improvement, knowledge, or amusement which he can derive from the performance, is all his own ; but the right to the work, the copyright, remains in him whose industry composed it. The buyer might as truly claim the merit of the com- position by his purchase, as to the right of multiplying the copies and reaping the profits. The invasion of this sort of property is as much against every man's sense of it, as it is against natural reason and moral rectitude. It is against the conviction of every man's own breast who attempts it. He kiiows it not to be his own —he knows he injures another, and he does not do it io\ the sake of the public, but mala fide et animo lucrandi.{') (1) 4 Burr. 2343. ANCIENT RECOGNITION OF COPYEIGHT. 11 SECTION III. Of the recognition by the State and Parliament of Copyright in perpetuity, and the evidence of Ancient Customs. It is only since the invention of printing, that any question of the extent or duration of copyright could be expected to occur in the courts of justice. To take an author's manuscript without his consent, was, of course, either actionable for the trespass or trover, or indictable in proportion to the amount of the offence, according as the circumstances might consti- tute a fraud or theft. A single copy was then of much more value than after printing had multiplied the number of copies. The great manual labor necessarily bestotVed on each copy, and the few readers at that time, rendered the publication of insignificant importance, compared with what it has since become. From the time of this splendid discovery, down to the year 1556, a period exceeding a century, we have no evidence of the recognition, in any public forni, of the copyright of authors, or of the remedies by which its infraction might be redressed. This silence, however, may be very rationally explained. The exact period of its introduction to England has been the subject of much discussion. According to some authorities, it was introduced at Oxford in the year 1468; the sounder opinion assigns the period of 1471 or 1472. But whatever was the precise time, it is obvious that several years would naturally elapse, after its first establish- ment, before the invention could become generally adoptedC). Its process was impeded by many difficulties and re- straints. It was imported during one of the most stormy periods of our history, amidst contests for the crown and domestic war. The revival of letters was then in its com- mencement. Books were comparatively few in number, and but little sought for. The establishment of printing presses therefore took place by slow degrees ; and it was not until the signal advantages of the art became kuown, and lite- rature extended itself, that the property, or copyright, in books became an object of importance. No sooner, however, did the press display the great purposes to which it might be applied, than the works which issued from it naturally became the immediate subject of state regulation. (1) The art of printing was first discovered at Mentz in 1438. It was introduced into England in 1,471 j into Scotland in 1508 ; into Ireland in 1531. ]2 HISTORICAL VIEW. The earliest evidence which occurs on the subject is to be found in the charter of the Stationers' Company, and the decrees of the Star Chamber. The evidence thus to be adduced, appears the more satisfactory, and the less liable to suspicion, inasmuch as it was indifferent to the views of the Government whether the copy of an innocent book, when licenced, was open or private property. It was certainly against the power of the crown to allow it as a private right, without being protected by any royal privilege. It could be done only on principles of private justice, moral fitness, and public convenience ; which, when applied to a new subject, make common law without a precedent ; much more when received and approved of by usage('). Recognition of the Right by Acts of the State. 1656. — The original charter of the Stationers' Company was granted by Philip and Mary, in the year 1556. It was the declared object of the Sovereign at that time to prevent the propagation of the Protestant Reformation ; and it seems to have been thought, that the most effectual means to do so, was to impose the severest restrictions on the press. The charter recites, that several seditious and heretical books, both in rhymes and tracts, were daily printed, renewing and spreading great and detestable heresies against the catholic doctrine of the Holy Mother Church. For the suppression of this evil, it constitutes ninety-seven persons (whom it names) an incorporated society of the art of a stationer ; and it orders that no person in England shall practise the art of printing unless he be one of this society. And the master and wardens of this society were authorized to search, seize, and burn all prohibited books, and to imprison any one that should exercise the art of printing contrary to this direction C). From this charter we proceed to the decrees of the Star Chamber, the authority of which we are quite willing should be estimated as low as possible ; but in adducing- the authorities which support the right in question, we are justified in pointing out, that even that arbitrary tribunal respected the rights of authors, and prohibited the printing of works without the consent of their owners. In 1556, by a decree of the Star Chamber, it was forbidden to print against the force and meaning of any ordinance, &c. in any of the statutes or laws of the realm . By another decree in 1585, every book, &c. is to be licenced: (1) 4 Burr. 2312. (2) This charter was confirmed by Elizabeth. ANCIENT RECOGNITION OF COPYRIGHT. 13 *' nor shall any one print any book, &c. against the forifi or meaning of any restraint contained in any statute or laws of the realm * * *, or contrary to any allowed ordinance set down for the good govern- ment of the Stationers' Company." In 1623, by a proclamation reciting the above decree, and that the same had been evaded ■" hj printing beyond sea such allowed books, &c. as have been imprinted within the realm by such to whom the sole printing thereof, by letters patent, or lawful ordinance or authority, doth appertain :" and then the proclanftation enforces the decree. Again in 1637, by another decree, no person is to print or import any book or copy which the Company of Stationers, or any other person, hath or shall by any letters patent, order or entrance in their register book, or otherwise, have the right, privilege, authority, or allowance solely to print. This decree evidently supposes a copyright to exist, " otherwise" than by patent, &c. which could be clearly by no other authority than the common law. These appear to be all the acts of state relative to the matter. Most of the judicial proceedings of the Star Chamber being lost or destroyed, no case of prosecution for printing without licence, or pirating another man's copy, has been found. But it is certain that down to the year 1640, copies were protected and secured from piracy by a much speedier, and more effectual, remedy than actions at law, or bills in equity. No licence -could be obtained *' to print another man's copy." Not from any prohibition, but because the thing was immoral, dishonest, and unjust ; and he who printed without a licence, was liable to great penalties(')- Recognition of the Right in Acts of Parliament. 1641.— After the abolition of the Star Chamber, all regulations of the press, by proclamation or decrees, were deemed illegal. The alleged licentiousness of the press, however, induced the two Houses to make an ordinance^), which prohibited printing, unless the book was first licenced, and entered in the register of the Stationers' Company. Copyrights, in their opinionj then, could only, stand upon the common law — both Houses took it for granted. The ordinance, therefore, prohibits printing without consent of the owner, or importing (if printed abroad), upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c. This provision necessarily supposes the property to exist — it is nugatory if there was no owner, and an owner could not at that time exist, but by the common law. (1) 4 Burr. 2313. (2) 29th of Jnne, 1641. 14 HISTORICAL VIEW. According to the authority of Carte, the historian('), if ever there was a danger of the invasion of copyright, it was in 1641, when the licentiousness of the press was carried to the greatest height. It appears, however, that several divines who were the favorites of the prevailing party, signed a declaration strongly in favor of authors, and on the justice of allowing them solely to print their copies; alleging that otherwise, scholars would be utterly deprived of any recompence for their studies or labor, and urging that if books were imported to the prejudice of those who bore the charge of impressions, the authors and buyers would be abused by vicious impressions, to the great discouragement of learned men, and extreme damage of all kinds of good learning. 1643. — These and other reasons had so much weight, that it appears both Houses of Parliament, on June 14, 1643, joined in an okdinance, declaring, " That no book, pamphlet, nor paper, nor part of such book, pamphlet, or paper, shall from henceforth be printed, bound, stitched, or put to sale by any person or persons whatsoever, unless the same be entered in the Register Book of the Company of Stationers, according to ancient custom ; and that no person or persons shall hereafter print, or cause to be reprinted, any book or books, or part of book or books, eqtered in the register of the said Company for any particular member thereof, without the licence and consent of the owner and owners thereof; nor yet import any such book or books, or part of book or books, formerly printed here, from beyond the seas, upon pain of forfeiting the same to the respective owner or owners of the said copies, and such further punishment as shall be thought fit^)." 1647. — There was also an ordinance of Parliament made the 28th of September, 1647('), relating tounlicenced printing. 1649. — And by another ordinance in September, 1649, cap. 60, it was enacted, that No person whatever should compose, write, print, publish, sell, or utter, or cause to be made, written, printed, or uttered, any book or pamphlet, treatise, sheet or sheets of news, whatsoever, unless licenced, as thereafter mentioned. And the same ordinance prohibited the use of any printing or rolling press, except in London and the two Universities, and also York and Finsbury. It then enacts, that no person or persons whatsoever in this (1) Carte's Letters, published 1735. Sir E. Brydges' « Reasons for further Amendment." (2) In 1644, Milton published his famous speech for the liberty of unlicenced prmting, against this ordinance ; and among the glosses which he says were used to color this ordinance, and make it pass, he mentions " the just retaining of each man his several copy; which," said he, " God forbid should be gain-said." (3) Scobel's Collection of Acts and Ordinances, p. 134. ANCIENT EECOGNITION OF COPYRIGHT. 15 Cottimonwealth shftll hereafter print or reprint any book or books, or . part of any book or books, legally granted to the said Company of Stationers for their maintenance of their poor, without the licence and consent of the Master, Wardens, and Assistants of the said Company ; nor any book or book«, or part lof book, or books, now entered in the register book for any particular member of the said Company, without the like consent of the owner or owners thereof ; nor counterfeit the name, mark, or title of any book or books belonging to the said Company or particular persons ; nor shall any person bind, stitch, or put to sale any such book or books, iipon pain of forfeiting six shillings and eight pence for every book. 1662. — The Licencing Act of 13 and 14 Charles II. cap. 33, was framed chiefly to control the liberty of the press. But its object was disguised by blending it with a renewal of the general ordinances for the regulation of printing. It enacts, that no person shall, within this kingdom or elsewhere, imprint, nor shall import from or out of any other of His Majesty's dominions, nor from any other parts beyond the seas, any copies or books printed beyond the seas, or elsewhere, which any person by force or virtue of any entry thereof duly made, or to be made in the Register Book of the Company of Stationers, have or shall have the right, privilege, authority, or allowance, solely to print, without the consent of the owner or owners of such book or books, copy or copies — nor shall bind, stitch, or put to sale, any such book or books, or part of any book or books, without the like consent, upon pain of loss or forfeiture of the same, and of being proceedied against as an offender against this present act," — (the penalty whereof was, for the first offence, a disability for three years, and for the second offeree a disability for ever, to exercise the art of printing, besides bodily punishment at the Judges' pleasure,) " and upon the further penalty and forfeiture of six shillings and eight pence for every such book or books, or part of such book or books, copy or copies, so imprinted, imported, bound, stitched, or put to sale," &c. The act, therefore, supposes an ownership at cominon law ; and the right itself is particularly recognized in the latter part of the third section of the act, where the Univer- sities are forbid to meddle with " any book or books, the right appointing whereof doth solely and pr&perly belong to any particular person or persons." The sole property of the owner is here acknowledged in express words, as a common law right ; and the legislature who passed that act could never have entertained the most distant idea " that the productions of the brain were not a subject matter of property." To support an action on this statute, ownership must be proved, or the plaintiff could not recover, because the action is to be brought by the " owner," who is to have a moiety of the penalty. 16 HISTORICAL VIEW. The various provisions of this act effectually prevented piracies, without the necessity of actions at law, or bills in equity, by owners. The Licencing Act of Charles II. was continued by several Acts of Parliament, but expired in 1679. It was revived by 1 James II. c. 7 ; and continued by 4 William and Mary, c. 24 ; and finally expired in 1694. Such is the state of the evidence as deduced from the Acts of Government and the Legislature in the most despotic and unsettled times ; and the inference is obviously strong, that if at those periods the rights of literature were respected when (if ever) they were liable to abuse, how much more ought those rights to be regarded and protected in an age like the present, which owes its improvement to the diffusion of knowledge. We have next to turn to the only other source from which any public testimonials can be derived of the ancient usages and regulations which bear on the question, viz. the charters and registry books of the Stationers' Company. Evidence of Ancient Customs. It appears that it was usual from th6 earliest times for authors to sell their copyright in perpetuity, and that the copies were made the subject of family settlements for the provision of wives and children. In the case of Millar v. Taylor, tried in 1769, this ancient custom was proved to the satisfaction of the jury, and by their special verdict they found as follows : "That before the reign of her late Majesty, Queen Anne, it was usual to purchase from authors the perpetual, copyright of their books, and to assign them from hand to hand for valuable consider- ations, and to make the same the subject of family settlements for the provision of wives and children." The historian Cakte, after speaking of the exclusive property which ever existed in all books printed in England, observes, "That for the making of it known, the better to prevent all invasion thereof, when the Stationers were incorporated('), all authors, and the proprietors to whom they sold their copies, constantly entered them in the register of that Company, as their property. The like method was taken with regard to foreign books, to which no subject of England could pretend an original right. To prevent the inconveniences of different persons engaging (perhaps unknown to one another) in printing of the same work (which might prove the ruin of both), the person who first resolved on it, and entered his (1) In 1556. EVIDENCE OF ANCIENT CUSTOMS. 17 design in that register, became therebythe Ifegal proprietor of such work, and liad tlie sole right of printing it : so'that there.has scarce ever been a book published in England, but it belonged to some author or proprietor, exclusive of all. other persons. This is evident to every one that hath ever viewed the Stationers' Register, from the erection of that company, down to the year 1710, when the Act 8 Ann yirithqut tli^ like ^consent ; such offender shall be liable to an action, to be brought in any Court of Record, for damages, and to double the costs of suit. The forfeiture of the:fcook, to'be -damasked or made waste, is also enacted ; and to this is added a penalty of three pence for every sheet printed, published, or exposed to sale, contrary to the act : oiie moiety to the^King, and the other to the mtt^i^mer. ^ I, In,S.c;9J;J^n(j!,'the ^^ci'i^.i^ .may be bronght in the Court of ^^s^ioBs.;, aj9id ,,T?here ^ainages ,.are awar^^ed^ double cbsts or expencggar^,filsqto.pe;?:llow^^. , ^ ... ' \,_, Wei insert the »remaijnder oj^ the fojurtli .section, tp shew the precise language of the act,and thep/aces to whjtch it extends. And that if any.bool^seller or printer, or ptjier person whali^pey^r,, in any part of the United. Kingdom of Great Britain and Ireland, in the Isles^^of Man, Jersey, or Ouemsey,- or in any other part of the British domimonSi shall, from and after the passing of this act, within the terms and times granted and limited by this act as aforesaid, print, rqprinti'Or import, or<3hall cause to be printed, reprinted, ptimported, any such book or; books, without the consent of the author or authors, or other {H-oprietor or pi!pprieJ;flr&,of the.qopyng^t<)f and in fuch bop}^ and books, .first had and obtained in,Tyritingj ^9(r^ knowing the :S.a,nie to be SO printed, reprinted, or imported, without such consent of such author- or au);hors, or other proprigtorpr proprietors, shall seU^ publish, or expose to sale, or cause to be sold, published, or exposed to sale, or shall have in his or their possession for sale, any such book or books, without such, consent first .h94P'n4 obtained as afpresaid, then such offender or offenders shall be liable to a special action on the case, at the suit of the author or authors, or other proprietor or prpprigtors of the copyright of such.book or bppk§ so unlawfully pfii;ite4;, reprjpted, or, imported,, or pjubUsh^d pr expps^ to, sale, pr being in the posfi^sipii o£ such .offender, or offenders for sale as .aforesaid, contrary to the true, intent and. meaning of this act : and every, such ajithor or .authors, pr, other proprietor, or proprijetors, shall and i](ia,y,,]l»y;andjfl such special action upon the case, to be so, brought against such offejgd^r,pr,offen4ers, in any Court of Record in that part of the United £^ingdom, or of the British Dominions, in which the pfenqe.shall he, cppimijited, rp^cover sueh damages as the j ury on the trial of such action, or on the exeqution F 3 68 DURATION OF COPYKIGHT IN BOOKS. of a writ of enquiry thereon, shall give or assess, together with double costs of suit; in which action no wager of law, essoine, privilege, or protection, nor more than one imparlance, shall be allowed ; and all and every such offender and oifenders shall also forfeit such book or books, and all and every sheet being part of such book or books, and shall deliver the same to the author or authors, or other proprietor or proprietors of the copyright of such book or books, upon order of any Court of Record in which any action or suit in law or equity shall he commenced or prosecuted by such author or authors, or other proprietor or proprietors, to be made on motion or petition to the sard court ;■ and the said author or authors, or other proprietor or proprietors^ shall' forthwith damask or make waste paper of the said book or books and' sheet or sheets ; and all and every such offender and offenders shall' also forfeit the sum of three pence for every sheet thereof,' either- printed or printing, or published or exposed to sale, contrary to the true intent and meaning of this act; the one moiety thereof to the, King's most excellent Majesty, his heirs and successors, and the. other moiety thereof to any person or persons who shall sue for the same, in any such Court of Record, by action of debt, bill, plaint, or information, in which no wager of law, essoine, privilege. Or protection, nor more than one imparlance, shall be allowed : provided always, that in Scotland such offender or offenders shall be liable to an action of damages in the Court of Session in Scotland, which' shall and may be -brought and prosiecuted in the same manner in which any other action of damages to the like amount maybe brought; and prosecuted there ; and in any such action where damages shall be awarded, double costs of suit or expences of process shall be allowed. 4f A. Of the Copyright of Authors living at the passing of the Act, but dying'before the expiration of the first fourteen years. ■ The eighth section enacts, that the representatives, ofautltors of books published before the parsing of the act, shall have. the benefit of the extension of the term, if such authors be. living at the passing of the act, and die before the expiration of the first fourteen years. But such provision is not to affect the right of the assigns of authors, or any contracts between them. The following is the section in full : — VIII. And whereas it is reasonable that authors of books already published, and who are now living, should also have the benefit of the extension of copyright, be it further enacted, that if the author of any book or books which shall not have been published fourteen years at the time of passing this act shall be living at the said time, and if such author shall afterwards die before the expiration of the said fourteen years, then : this personal representative of the said author, 'and the assignee or assigns of such personal representative, ' shall have the sole right of printing and publishing the said book or books for the further term of fourteen years after the expira- tion of the first fourteen years : provided that nothing in this act contained shall affect the right of the assignee or assigns of such ANALYSIS OF THE STATUTE.— DIGEST OF CASES, 65 aathor to sell any copies of the said book or books which shall have been printed by such assignee or assigns within the first fourteen years, or the terms of any contract between such author and such assignee or assigns. 6th. Of the Copyrightof Authors living at the end of twenty-eight years, in Books pvblished before the Act. By the ninth section, if the authors of books then already published, be Iming at the end of twenty-dght years after the first publication, they shall have the sole right of printing and publishing the same for the remainder of their lives. But without prejudice to the right of the assigns of authors, or any contract between them. The wording of the act is as follows : — IX. And be it also further enacted, that if the author of any book or books which have been already published shall be living at the end of twenty-eight years after the first publication of the said book or books, he or she shall for the remainder of his or her life have the sole right of printing and publishing the same : provided that this shall not affect the right of the assignee or assigns of such author to sell any copies of the said book or books which shall have been printed by such assignee or assigns withip the said twenty-eight years, or the terms of any contract between §uch author and such assignee or assigns. 6th. Limitation of Proeeedings under the Act. The last clause limits the commencement of legal pro- ceedings under the act to twelve months after the offence committed, and is as follows : X. Provided nevertheless, and be it further enacted, that all actions, suits,- bills, indictments, or informations for any offence that shall be committed against this act, shall be brought, sued, and commenced within twelve months next after such offence committed, or else the same shall be void and of no effect.. SECTION II. Digest of Cases relating to the' Duration of Copyright. A question has arisen on the construction of the statute 54th Geo. III. cap. 166, Whether an author whose work had been published more than twenty-eight years before the passing of the act, was entitled to the copyright for the remainder of his life. This question was decided against the author in the case of Brooke v. Clarke('). In that case, (which was determined (1) 1 Barn, and Aid, 396. We subjoin a full report of the argument in this import- tant case. Mr. Denman, for the plantiSF.— The question depends on the statute 54th Geo. III. 70 DtJRATlON OF COPYKIGHT IN BOOKS. in 1818) ikff. Hargr(ii>6; the author of Notes or Annotations 'On Lord Coke's First Institute or Commentary upon Littleton, had assigned in the year 1784, to the defendants, his co-pyright therein, and such further property as he might thereafter become entitled to by virtue of the Act of 8th Anne, ox any other law or usage. In 1817,he executed another assignment cap. 156, which; as aifpears from the preamble, was passed for the express purpose of extending the rights df authors. It recites the 8th Anne, cap. 19, (which first gave to ^utljprs a copyright, for fourteen y^^O artd the 41st Geo. XII. cap. 107, which gave the auth,ors living at the end of the first fourteen years, a further right for a like term ; and then it proceeds to state, " that it will afibrd further encouragement to literature, if the duration of such Copyright were extended," Tlie object of the legislature, therefore, was to extend the duration of the copyright ; and, if in the subsequent clauses any words of doubtful import occur, they should be construed with reference to the geiieraj purpose, thus expressly avowed by the legislature. The ninth section of the act' {which is applica- ble to tliis case) is free firom any such ambiguity. It provides, " that if the anthor, who might under the farmer act have acquired "a right for twenty-eight years, shall be living at the end of such twenty-eight years, after such first publication, he shall then have the copyright for his life;" ' The author in this case is living, and the twenty-eight years have expired : he is, therefore, within the very words of the act, and thereby becomes eiititleS to the copyright for his life, and the assignment to the plaintiffs is consequenllly ; valid. It may be argued, however, that the legislature coiiteinplated the term then to .expire, and not already expired; and the author's' terna having 'actually been exhausted ivhen this act passed, that this case is' not within its meaning'. Btit it mtist theh be made out that the. words, " at the end of tweilty-eight years," arie expressive of the very moment of time at which, they, shoyld. expire. That VonU, Jioweyei:, be a very narrow, construc- tion of these words, and not warranted by the meaning generally given to them in com- mon usage. The words, " at the end of any term," mean after that term is expired'. In stating, that at the end of a King's reign such things were dorie, it would not signify that they were done at the moment he ceased to reign, but only after he had ceased to reign. So if a right of way were granted fdr a numhfer of years, over certain closes, and at the end of those.years the right is to cease, it leould mean, that after these years are expired the right was to cease. It, therefore, appears that these words are used in the ^common intercourse of mankind, and not toexpress a precise point of time, but t'he expiration of a period as a thing passed. Then if the words are capable of this sense (although they may admit also of the other construction), they should be construed in this case, so as to effect the generil purpose of the le^slaturi , viz., the extension of the duration of the copyright of authors. By, this cbnstructigri, the right of the author living at the end of twenty-eight years (expired at the time 6f" passing this acf) , will be extended : by the other construction, his right will not be extended or enlarged, and the object of the legis- lature will therefore be defeated. By construing these words so as to g^ve the author the copyright for his life, the court will ^ve full, effect to the words of tlie ninth section, and will further the general intention of the legislature, viz., the encouragement of litera- ture, by extending the rights of authors. , Mr. Richardson, contra. This Act of Parliament does not re-vest in an author a copy- right, which, under the then existing laws, was spent aiid terminated; itonly eattenrfs, but does not create a right. The language and meaning of the statute is wholly prospective. The fourth section provides, that from and after the passing of the act, the author of any book, composed and not printed and published, or which shall hereafter be composed and be printed and published, shall have the copyright for twenty-eight years ; and if he be living at the end of that period, for the term of his life. This section, therefore, makes an alteration in the then law, by extending the author's copyright, first for twenty-eight years, and if he be living at the end of twenty-eight years, for his life. It, however, provides only as to future publications, for the work rriay be written either before or after the act, but unless it be published after the act, this clause does not attach, and it goes on to inflict very severe penalties upon persons printing the works of any authors without their consent. So far the statute had provided for the cases of authors who pub- lished after the printing of the act. It occurred, however, to the legislature, that some provisions should be made for existing authors, whose rights under former acts had not DIGEST OF CASES. 71 to the plaintiff of all his copyright (as far as he lawjfuUy could) in the Notes or Annotations in<]uestion,/or the remain- der of his (Mr. Hargrave's) life. ■ This case depended upon the eighth and ninth sections ; the former of which recites, that it is reasonable that authors of books already published, and who where then living, should have the benefit of the extension of copyright. then expiredj but were concurrent ; and (he eighth and ninth sections provide for these cases : the eighth secti6n recites, " that whereas it is reasonable that authors of books already published, and who are now living, should have the benefit of the eiterision of copyright." This word extension is a term properly used for the purpose of enlar^ng or giving furthet duration to any existing right, but does not import the re-vesting of any expired right ; that would not be an extemim, but a re-creation. The object, therefore, of the eighth section is to extend to living writers the benefit of their unexpired, rights, and therefore it oidy applies to cases where the first fourteen 'years had not .expired- The x>bject of this act is to ^ve authors an absolute right for twenty-eight years ; and in pursuance of that intention, it gjves a continuing interest for fourteen years to those who should be Ihnng, and whose- copyr^ht under former acts had not expired ; the words following the recital in that section are^i "'be it fiirther enacted, that if the author of any book, which shall not have been published fourteen years at the time of passing this act, shall be then Imng, and if such author shall afterwards die before the expiration of the fourteen years, then the personal representative shall have the copyright for the further term «f fourteen years, provided that nothing in the act shall affect any right of the assignee to sell any of the books of the author, printed within the first fourteen years ;" the eighth and ninth sections both contemplate the case of living authors ; the eighth, where the first fourteen years have not yet expired, and the ninth where they have ; the ninth section applies to the case where the author is living at the end of the first fourteen years, but before the expiration of the second fourteen years ; these are the only two cases in which, before the passing of this act, an author could have any right capable of extension, and this statute does' not create a new right not edready existing, but only extends an existing right ; the ninth section goes on, " and be it also further (i. e. upon the same recital as that which precedes the eighth section) enacted, that if the author of any book already published, shsdl be living at the end. of twenty-eight years.aiter such publica- tion, he shall have the copyright for his life ;" the words "$haU be living," are prospective. The legislature does not suppose the time to have been already expired, but it contem- plates a further extension of time then unexpired ; the language is prospective in its terms, and the sense requires that it should be so. For taldng the two sections together, it appears clearly that the legislature intended only to extend the already existing right of authors, and not to create a right then expired. This is perfectiy consistent with the meaning of the word ahall, and also with the meaning' of the words, at the end of twenty-eight years. The words, at the expiration of a term, mean immediately after. . Thus, if speaking tif a reversioner who is to come into possession at the expiration of the term, that could not be sEud to mean after the expiration of the term, and at any future period, for the reversion attaches at the expiration of the term. But admitting that the words are capable of either sense, they must be construed so as to give effect to the other words used in these two sections, and particularly with reference to "the word ' " shall," which is prospective in its meaning, and the word " extension," which imports the enlargement of an existing thing, and not a creation. The contrary construction would, indeed, produce an inconvenience and an injustice which could not be intended by the legislature ; for at the time of passing this Act of Parliament, the author's right having become extinguished, it was competent to any person to publish the work in question, and such publications may have actually taken place at a great expence to the individual ; yet according to the construction contended for, if the author's right were re-vested, the innocent publisher might have his work taken from him, and would be subject to the penalties imposed by this act : so that an individual would be guilty of an offence, and subject to a penalty for exercising his legal right. The legislature could not have intended to produce so much public inconvenience, to benefit a Small, though highly 72 DURATION OF COPYEIGHT IN BOOKS. Lord Ellenboeough, C. J., said the word extension im- pbrts the continuance : of an existing thing, and must have its full eflPect given to it \vhere it occurs; It is expressly used in the recital of the eighth section, which is connected with, the ninth, by the subject matter, as well as by theWords "■be it also further enacted;" and it seems to me, that predicating the purpose to be to benefit the author by the extension of his rights, is adopting a very different idea from re-creating an expired right. The word 'extension, , is too strong for me to grapple with ; and, if the court were to get rid of its opera- tion, a great public injury would be effected, by calling back ' a right, that by lapse of time had become extinct. Abbott, J., further observed, it is admitted, that if the public had exercised their rights, by publishing the work before the act passed, that the author could not interfere with the parties who had so exercised the right: and there are no words in the Act of Parliament which admit of one construc- tion where the public have exercised the. privileges which have devolved upon them by the lapse of twenty- eight years, and another construction where they have not exercised that meritoiious, class of individuals ; and that cannot be the true construction of the Act of Parliament from which such a consequence would follow. Looking, therefore, to the language of the section itself, and the general intention to be collected from the several clauses, as well as the great inconvenience that would follow if the opposite construction were to prevail, it does clearly seem that the intention of the act will be best effected by confining its operation to those authors who at the time of passing the Act of Parliament had existing rights j or in other words, to those whose twenty-eight years had not then elapsed. Mr. Denman, in reply. — The word " extension" does occur in the eiighth section, but not in the ninth : it is there studiously left out ; and the benefit conferred by that section need not, therefore, come within the meaning of the term extension, and there is no expression that connects the two clauses so as to inake that word applicable to the ninth. Abbott, Justice. — Will you mention any words in the English language more appropriate or apposite to connect one section with another than the words " Be it also further enacted?" Mr. Denman. They are separate clauses, and are not necessarily connected ; and the ninth section does not say that the author's right shall be extended, but generally; that, if living, he shall have the cojpyright for his life : an extension of a right is given by one clause, and a right generally conferred by the other. With respect to the inconvenience which, it is said, y[ill result from this construction of the act, it is not true that an innocent publisher would be subjected to the penalties inflicted by the fourth section, for those penalties only attach on offences comprised in that section. Bayley, J. — Is not a man penally affected who has legally vested his money in a printed book, and is afterwards prevented from selling it ? Mr. Denman. The act could not be meant to operate as an ex post facto law in a case where aparty had exercised rights vested in the public. Certainly no right actually vested in and exercised by the public, was intended to be divested. If such rights had indeed been exercised, the case might have been very different as to the parties so exercising them ; but the fact is otherwise, and therefore that question is immaterial. And that being so, then the case comes within the very words of the ninUi section, and is embraced within the general object the legislature had in view in passing the Act of Parliament, viz., the extension of the copyright of authors. DIGEST OF CASES. 73 privilege. The act makes no distinction between these two cases'. _ ., The Court afterwards certified their opinion, that the pMntiff, by virtiie of the last mentioned assignment, took no interest in the Notes or Arinotations. i In the case of Carnan v. Bowles(') it was also decided, that an author who sells his work iii general terms, without making any limitations, has no resulting right against his own assignee after the first term has expired, formerly of fourteeii, but now of twenty-eight years(*). Although a general assignment of a copyright in writing endures pnly for fourteen years, yet where an author by parole gave a compilation to a publisher unconditionally, it was holden that such gift was not impliedly limited to the term of fourteen years(°). The distinction between the point decided in the case of Carnan v. Bowles, and the eighth section of the 54th Geo. III. cap. 156, appears to be this : If an author who has assigned his right, outlive the first fourteen years, (or twenty-eight years now allowed) his as»ignee, by the general assignment, will have the benefit of the result- ing term, fourteen years, or the remainder of the author's life. But if an author die after the enactment, but within that (1) Carnan v. Bowles, 3 Brown's Chancery Rep. 80. (2) The eleventh section of 8 Anne provides, tiiat after the expiration of the term of fourteen years, the sole right of printing or disposing of copies of books shall return to the authors thereof, if they are then living, for a further term of fourteen years. In the case cited in the text, the author, Captain Faterson, having sold ." all his right" in a Book of Roads to the plaintiff,' which was printed' in letter-press, after the expiration of the first fourteen years, sold it to the defendant, who published the high roads upon copper-plates, and the cross roads in letter-press. Mr. Mansfield, on the part of the plaintiff,^ contended, that the expression in the act meant to secure something to authors even against their own acts. It gives the right to authors and their assigns during the first fourteen years, and no longer; and then, by the'proviso, the right shall return to the authors (not their assigns), if living. So that it is a personal bounty to the authors only. ; In selling the right, the author sells all that is in him, not the contingent right that may return to him. The Solicitor-General, oii the other side', argued, that the author has an absolute and a contingent right ; they are both capable of being disposed of. There is nothing in the act to make a difference between them. The return is only between the puMic and the author, not between him and his assignee. There are no negative words in the act to prevent his assigning that, as well as his other rights. In many cases, if he could not assign it, the disability would be productive of great inconvenience. Lord Chancellor. — The contingent interest must pass by the word " interest" in the grant. The author conveys all his interest in the copyright. The assignment must have been made upon the idea of a perpetuity. It is probable not a syllatile was ssud. or thought of .respecting the contingent right. They merely followed the old precedents of such conveyances. It must, I think, be considered as conveying his whole right. If he had meant to convey his first term only, he.shpuld have said so. An injunction was therefore granted as to the letter-press. (3) Rudell V. Murray,! Jacob, 311. SPetersdorff's Ab*. 564. 74 EXTENT OF COPYRIGHT — MSS. term, then his assignee will enjoy the copyright for the first fourteen years only, and the personal representatives ot the deceased will hare the benefit of a further term of fourteen years, without prejudice to the sale of the books printed by the assignee within the first term(')- SECTION HI. Digest of Cases relating to the extent of Copyright— works comprised in the Statute, or protected by the Common Law. 1st. Of Manuscripts. Although the common law, on the subject of copyright in prinied books, has been superseded by the statutes, the ancient protection afforded to all kinds of property still re- mains in full force in favor of literary manuscripts. With the single exception of Mr. Baron Eyre, all the judges decided in the case of Donaldson y. Befcket(°);'that ah Author has complete control over his worts, so long as they remain in manuscript. Of these there are several kinds, consisting of 1. Unpublished works in gieneral. 2. Dramatic works, whether they have been represented or not. 3. Epistolary writings. These several descriptipns of literary works are protected from invasion, and the' Courts of Equity, at the instance of the aiithbr or proprietor, will stay the publication of them: and an action at law can be maintained in trover, detinue, or trespass('). - , 2nd. Of Printed Books, The statute, according to its construction by the courts, is not limited to publications usually termed " books," but in- cludes every original work, however insignificant it may be in extent. There is a property even in a single page. There is nothing (said Mr. Erskine) in the word book to require that it should consist of several sheets, bound in leather, or stitched in a marble cover. Book is evidently the Saxon 2B0C, and the latter term is from heech tree, the rind of which supplied the place of paper to our German ancestors. The latin word liber is of a similar etymo- logy, meaning originally only the bark of a tree. Book may therefore (1) Godson on Patents and Copyright, 311. (2) 4 Burr. S408. (3) For the details on firating the copyright of these works, vide Part III. ORIGINAL WOKKS, TfeANSLATIONS, ABRIDGMENTS, 8CC. 75 be applied to any writing, and it has often been so used in the English language^' ■ ' If a different construction were put upon the act, many produc- tions of the greatest genius, both in prose and verse, would be excluded from its benefits. But might the papers of the Spectator, or Gray's Elegy in a Country Church-yard, have been pirated as soon as they were published, because they were given to the world on single sheets? The voluminous extent of a production cannot in an enlightened country be the sole title to the guardianship the author receives from the law. Every man knows that the mathematical and astronomical calculations which will inclose the student during a long life in his cabinet, are frequently reduced to the compass of a few lines ; and is all this profundity of mental abstraction, on which the security and iiappiness of tlie species, in every part of the globe depend, to, be excluded from the protection of British jurisprudence]' The 'point' was riot further argued*. The rule was made absolute('). In a subsequent case this decision was referred to, and Lord Ellen BOROUGH said('), I do not at present see why a composition, printed on a single sheet, should not be entitled to the privileges of the statute. We say, "sit liber index," without referring to a volume either printed or written, I was at first startled at a single sheet of paper being called a book ; but I was afterwards disposed to think that it might be so considered, within the meaning-of- this Act of Parliament j and when the matter came before the court,' the other judges inclined to the same ppinion(*J, This point was afterwards settled and confirmed by the whole court(') The statute comprises not only original works, but Translations, both from the ancient and modern languagesC). (1) Sometimes the most humble and familiar illustration is the most fortunate. The Horn Book, so formidable to infant years, consists of one small page, protected by an animal preparation, and in this state it has universally received the appellation of a boolc ' So in legal proceecBngs, the copy bf the pleadingsaHier issue joined, whether it be long or short, is called the Paper Book, or the Demnrrer Book, In the Court of Exchequer, a roll was anciently denominated a book, and continues in some instances to the present day. An oath as old as the time of Edward I. runs in this form : " And you shall deUver into the Court of Exchequer a book fairly written." But the book delivered into court in fulfilment of this oath, has always been a roll of parchment 2 Camp, 29, (2) Hine V. Dale, 2 Camp. SB, note, ' (S) Clementi v. Golding, S Canip. SO. (4) Mr. Scarlett, in his argument for the plaintiiFs, ably contended, that the legislature by the word book, could not be considered as meaning only a number of printed sheets bound up together, since they talked in section 3 of a literary composition, as a book before it was printed at all. According to its ori^nal meaning, it signifies any wridng, without reference to size or form, and it is so used by the most celebrated authors. Thus in Shakespeare, Henry IV., book stands for the indenture or instrument by which Mortimer, Glendower, and Hotspur, agreed to divide England between them (a), and the commentators upon that passage point out various other instances in which the word is employed in the same sense. (o) Mart, By that time will our book I think be drawn. Hen. IV. Part I. Act S, Scene 1. The instrument is a little before called on indenture tripartite. (5) 11 East, 244. (6) 3 Ves. and B. 77". 76 DURATION OF COPVEIGHT IN ENGRA VIN GS, &C. , It also includes Abridgments and Compilations, provided they are bona fide, and not fraudulently or. colourably, made('). ' And after the time limited by the statute has expired, if the author, or any other writer, should reprint the book with original IVbte or additions, the latter are entitled to the, same degree of protection as any other original composition, for the whole time allowed by the statute(°). 3rd: Of Musical Compositions. The statute has further received a liberal interpretation in favor of musical compositions, which have also been held, as a branch of science, to be comprehended within the mean- ing of the act. The work thus printed and published^ con- tains a representation (so to speak) of original musical ideas, and therefore receives the same protection^ both in extent and duration, as publications which convey ideas more purely intellectual. Lord Mansfield said, the words of the Act of Parliament are very la.rge--f books and other writings. It is not confined to language or letters. Music is a science: it may be written; and the mode; of ; conveying ideas is by signs and marks. If the narrow interpretation contended for in the argument were to hold, it would equally apply to algeibra, mathematics, arithmetic, hieroglyphics. All these are conveyed by signs and figures. There is no colour for saying that music is not within the actO. CHAP. II. OP COPYRIGHT IN ENGRAVINGS, ETCHINGS, PRINTS, MAPS, AND CHARTS. In the. historical view of the law of copyright in general, we have not adverted to the statutes regarding engravings, etchings, and prints, inasmuch as they have not been recently consolidated, like those which relate to printed books. In treating of the present state of the law on this branch of the fine arts, which is so intimately connected with literature; we may properly consider, under one view, the three Acts of Parliament which have been passed for " the encouragement of the arts of designing, engraving, and etching." (1) Amb. 403, Lofft. Rep. 775. Vide Part III. for the details regarding piracy in these compositions. (2) 1 East, 358. (3) Bach v. Longman, Cowp. 623. ANALYSIS OF THE STATUTES. 77 SECTION I. Analysis of the Statutes. The 8th Geo. II. cap. 13, is entitled. An act for the en- couragement of the arts of designing, engraving,, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers during the time therein men- tioned. , It recites, that divers persons have, by their own genius, in- dustry, pains and expence, invented and engraved, or worked in mezzotinto or chiaro oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labors ; and that print- sellers and other persons have of late, without the consent of the in- ventors, designers, and proprietors of such prints, frequently taken the liberty of copying, engraving, and publishing, or causing to be copied, engraved, and published, base copies of such works, designs, and prints, to the very great prejudice and detriment of the inventors, designers, and proprietors thereof. For remedy thereof, and for preventing such practiees for the future, the act vests the sole right and liberty of printing and reprinting the same for fourteen years, to coinmence frbm the day of first publishing thereof. The date to be engraved, with the name of the proprietor, on each plate, and printed on every print. The penalties for pirating, or selling, or exposing to sale, either the whole or a part of any print, without the consent of the proprietor in writing, signed in the presence of two witnesses, are a. forfeiture of the prints, and a Jim of five shillings each. : . The act does not extend to purchasers of plates from the original proprietors. And there is a clause in favor of certain engravings then designed, relating to the Spanish invasion. Actions under the statute must be brought within three months. The general issue may be pleaded. We consider it essential, as a part of the present law, to set forth the remainder of the act in full. The following is the enacting part, together with the subsequent clauses. That from and after the 24th of June, which will be in the year of our Lord, 1735, every person who shall invent and design, engrave, etch, or ' work in mezzotinto, or chiaro oscuro, or from his own works -and inventions, shall cause to be designed and engraved, \etched, or worked in inezzotinto or chiaro oscuro, any historical or other print or prints,;shall have the sole right and liberty of printing andreprint- ingthe same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with 78 axiUATlON OF COPYRIGHT IN ENGRAVINGS, &C. the name of the proprietor on each plate, and printed on every such print or prints j and that if any printseUer or other person whatsoever, from and after the said 24th day of June, 1735, within the time limited by this act, shall engrave, etch, or work as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched, or copied and sold, in the whole, or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause to be printed, reprinted, or imported for sale, any such print or prints, or any part thereof, without the cpnsent of the proprietor or proprietors thereof first had and obtained in writing, signed by him or them respectively, in the presence of two or more credible witnesses, or knowing the same to be so printed or reprinted without the consent of the proprietor or proprietors, shall publish, sellj or ex- pose to sale, or otherwise or in any other manner dispose of, or cause to be published, sold, or exposed to sale, or otherwise or in any other manner disposed of, any such print or prints, without such consent first had and obtained as aforesaid,, then such offender or offenders shall forfeit the plate or plat«s on which ^uch print or prints are or shall be copied, and all and every sheet or sheets (being part of or whereon such print or prints are or shall be so copied and printed), to thei pror prietor or proprietors of such original print or prints, who shall forth- with destroy and damask the same; and further, that every such offender or offenders shall forfeit five shillings for every print which shall be found in his, her, or their custody, either printed or published and exposed to sale, or otherwise disposed of, coptrary to the true in- tent and meaning of this act : the one moiety thereof to the King s most excellent Majesty, his heirs and successors, and the other moiety thereof ,to any person or persons that shall sue for the same; to be recovered in ^ny oif His Majesty's Courts of Record at Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoine, privilege, or protection, nor more than one imparlance, shall be allowed. II. Provided nevertheless, that it shall and may be lawful for any person -or persons who shall hereafter purchase, any plate or plates for printing from the original proprietors thereof, to print and reprint from the sji^d plates, yyithout incurring any pf the penalties in this act mentioned. III. And be it further enacted ty the authority, aiforesaid, that if any action, or suit shall be commenced or brought against any person or persons whatsoever for doing, or causing to be done, any thing in pursuance of this act, the same shall be brought within the space of three months after so doing, and the defendant and defendants in such action or suit shall or may plead the general issue, and; give the special matter. in, evidence 5, and if upon such action or.. suit a verdict, shall , he. given, for the defendant or defendants, or if thei, plaintiff or, plaintiffs become nonsuited, or discontinue his or their action or actions, then the defendant or defendants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or. have by law. IV. Provided always, and be it further enacted by the authority ANALYSIS OF THE STATUTES. 79 aforesaid, that if any action or suit shall be commenced or brought against any person or persons for any offence committed against this act, the same shall be brought within the space of three months after the discovery of every such offence, and not afterwards j any thing in this act contained to the contrary notwithstanding. V. And whereas John Pine, of London, Engraver, doth propose to engrave and publish a set of prints copied - from several pieces of tapestry in the House of Lords and His Majesty's wardrobe, and other drawings relating to the Spanish invasion in the year of our Lord 1588, be it further enacted by the authority aforesaid, that the said John JPine shall be entitled to the benefit of this act to all intents and purposes whatsoever, in the same manner as if the said John Pine had been the inventor and designer of the said prints. VI . And be it further enacted by the authority aforesaid, that this act shall be deemed, adjudged, and taken to be a public act, and be judicially taken notice of as such by all judges, justices, and other persons whatsoever, without specially pleading the same. The next act is the 7th Geo. III. c. 38, and is entitled. An act to amend and render more effectual an act iuade in the eighth year of the reign of King George 11. for encou- ragement of the arts of designing, engraving, and etching historical and other prints, and for vesting in and securing to Jane Hogarth, widow, the property in, certain prints, , , , ^ By this act, the term of cppyrigM is exterided to tw^nty- ,eight years. 1. ;. V .,,; ■ s...-. ,. .- . . And it includes " the prints of any portxait,.conversation, landscape, or architecture, map, cAa/-^, or plan, or any other print." By the 2nd section, engravings, etchings, or works taken from " any pjcture, drawing, model, or sculpture, either ancient or modern," are entitled to the protection of the act. The remedies provided by this statute must be sued for within sjxJwon^As after the offence committed. It is observable that this act does not expressly require the name of the pupprietor and tlie date ,of publication, )to be engraved on the print j . but it seems probable that the pro- vision of the previous statute, 8 Geo. II. in that respect should be considered as included(')j and the insertion is necessary for the recovery of the penalties, though not for the purpose of maintaining an action for damages('). The following is an accurate statement. of the act : It recites — That an Act of Parliament passed in the eighth year pf the reigu of His late Majesty King. George II, intituled. An act, for encou- ragement of the arts of designing, .engra,ying, a.nd etching historical (1) 2 Evans's Stati 637, note. i(2) 1 Camp. 98 ;, but see the next section. - 80 DURATION OF COPYRIGHT IN ENGRAVINGS, 8tC. and other prints, by vesting tlie properties thereof in the inventors and engravers during the time therein mentioned, had been found ineffec- tual for the purposes thereby intended. And it is then enacted. That from and after the first day of January, 1767, all and every person and persons vpho shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro, any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints what- soever, shall have, and are hereby declared to have, the benefit and protection of the said act, and this act, under the restrictions and limitations hereinafter mentioned. II. And be it further enacted by the authority aforesaid; that from and after the said first day of January, one thousand^ seven hundred and sixty seven, all and every person and persons who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or, cause to be engraved, etched, or worked, any print taken from any picture, drawing, model, sculpture, either ancient or modern, shall have, and are hereby declared to have, the benefit and protection of the said act, and this act, for the term hereinafter mentioned, in like manner as if such print had been graved or drawn from the original design of siich graver, etcheir, or draughtsman ; and if any person shall engra,ve, print, and publish; or import for sale, any copy of any- such print,' contrary to the true intent and meaning of this and the said former act,' every such person shall be liable to the penalties contained in the said act, to be recovered as therein and hereinafter is mentioned. III. The sole right of printing and reprinting the late W. Hogarth's prints, vested in his widow and executrix for twenty years. IV. Penalty of copying, &c. any of them before, expiration of the term ; sucli, copies excepted as were made and exposed to sale after the term of fourteen years, for which the said works were first licenced, &c. V. And be it further enacted tj* the authority aforesaid, that all and every the penalties and penalty inflicted by the said act, and extended and meant to be extended to the severed, cases comprised' in this act, shiill and may be sued for and recovered in like manner, and Tinder the' like restrictions and limitations, as in and by the said act is declared and appointed ; and the plaintiff or common informer, in every such action (in case such plaintiff or common informer shall recover any of the penalties incurred . by this or the said former act) shall recover the same, together with his full costs of suit. VI. Provided alsoj that the party prosecuting shall commence his prosecution vvithin the space of six calendar months after the offence committed. ■ VII. And be it further enacted by the authority aforesaid,'that the sole right and liberty of printing and reprinting intended to be secured and protected by the said former act, and this act, shall be extended, continued, and be vested in the respective proprietors for ANALYSIS OF THE STATUTES. ^1 the space of twenty-eight years, to commence from the day of the first publishing of^any of the works respectively herein before, and in the said former act, mentioned. VIII. And be it further enacted by the authority aforesaid, that if any action or suit shall be commenced or brought against any person or persons whatsoever for doing, or causing to be done, any thing in pursuance of this act, the same shall be brought within the space of six calendar months after the fact committed ; , and the defendant or defendants in any such action or suit^shall or may plead the general issue, and give the special matter in evidence ; and if upon such action or suit a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become nonsuited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs ; for the remedy whereof, he shall have tiie same remedy as any other defendant or defendants in any other case hath or have by law. The last act on this subject is the I7th Geo. III. c. 57, and is entitled. An act for more effectually securing the property of prints to inventors and engravers, by enabling them to sue for and recover penalties in certain cases. By this statute an action for damages and double costs is given for engraving, etching, or printing any historical print, or any portrait, &c. without the consent of the proprietor, within the time limited by the former acts. The remedies provided by the former statutes were by fine and forfeiture. The act recites — That an act of Parliament passed in the eighth year of his late Majesty, King Geo. II. intituled. An act for the encouragement of the arts of designing, engraving, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers during the time therein mentioned ; and tSat by an Act of Parliament passed in the seventh year of the reign of his present Majesty, for amending and rendering more effectual the aforesaid act, and for purposes therein mentioned, it was (among other ' things) enacted, that from and after the first da,y of January, 1767, all and every person or persons who should engrave, etch, or work in mezzotinto or chjaro oscuro, or cause to be engraved, etched, or worked, any print taken from any picture, drawing, model, or sculpture, either ancient or- modem, should have, and were thereby declared to have, the benefit and protection of the'said former .act, and that act, for the term thereinafter mentioned, in like manner as if such print had been graved ordrawn from theoriginal designof such graver, etcher, ordraughtsman : and that the said acts have not effectually answered the purposes for which they were intended ; and it is necessary, for the encouragement of artists, and for securing td them the property of and in their works,. and for the advancement and improvement of the aforesaid' arts, that such further provisions should be made as are hereinafter mentioned and contained. G 82 DURATION OF COPYRIGHT IN ENGRAVINGS, &C. It is therefore enacted, That from and after the 24th day of June, 1777, if any engraver, etcher, print-seller, or any other person, shall within the time limited by the aforesaid acts, or either of them, engrave, etch, or work, or cause or procure to be engraved, etched, or worked, in mezzotinto or chiaro oscuro, or otherwise, or in any manner copy in the whole or in part by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause or procure to be printed, reprinted, or imprinted or imported for sale, or shall publish, sell, or otherwise dispose of, or cause or procure to be published, sold, or otherwise disposed of, any copy or copies of any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints what- soever which hath or have been, or shall be, engraved, etched, drawn, or designed in any part of Great Britain, without the express consent of the proprietor or proprietors thereof first had and obtained in writing, signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of, and attested by, two or more credible witnesses, then every such proprietor or proprietors shall and may, by and in a special action upon the case to be brought against the person or persons so oifending, recover such damages as a jury on the trial of such action, or on the execution of a Writ of Enquiry thereon, shall give or assess, together with double costs of suit. SECTION II. Digest of Cases, The acts are not confined in their protection to inventions, strictly speaking, but comprise the designing or engraving any thing that is already in nature('). The decree of originality which entitles the inventor to the protection of the statute, has been well defined by Lord Ellenborough, who states the question thus: Whether the defendant has copied the main design ? Whether there be such a similitude and conformity between the prints, that the per- son who executed the one set, must have used the others as a model? In that case, he is a copyist of the main design. But if the similitude can be supposed to have arisen from acci- dent, or necessarily from the nature of the subject, or from the artist having sketched his design merely from reading the letter-press of the plaintiff, the defendant is not answerablef). A question has arisen, whether it be absolutely necessary to support an action at law, or a bill in equity, that the date of publication, and the name of the proprietor, be engraved on each plate and print. (1) 2 Atkins, 293. (2) 1 Camp. 94, Rowortli v. Wilkes. DIGEST OF CASES. 83 It is said(') that there is a contrariety of opinion in the authorities as to the true construction of the act. Lord Hardwiche and Lord EUenborough being on one side, and Lord Alvanley, Lord Kenyan, and Judge Butter, on the other. The case referred to, however, was not decided on the point in question, and Lord Kenyan himself does not appear very decided in his opinion. He says, had the question turned entirely on the point on yphich it has been argued, I should have thought it involved in considerable difficulty : upon that head my opinion has floated during the course of the argument. It should seem, that the reason for requiring the name and the date to appear on the print was, that they might convey some useful intelligence to the public. The date is of im- portance, that the public may know the period of the mono- poly. The name of the proprietor should appear, in order that those who wish to copy it, might know to whdm to apply for consent. It seems, therefore, necessary, that the date should remain, but that the name of the proprietor should be altered as often as the property is changed('). This decision was in the year 1792. At a subsequent period, namely, in 1807, Lord Ellenbokough said, although the plaintiflfs name is not engraved upon the prints, if there has been a piracy, I think the plaintiff is entitled to a verdict. The interest being vested, the common law gives the remedy. I have always acted on the case of Beckford v. Hood('), in which the Court of King's Bench held , that an author whose work is pirated, may maintain an action on the case for damages, although the work was not entered at Stationers' Hall, and although it was first published without the name of the author affixed(*). We have stated the preceding case, which arose more directly out of the construction of the Acts of Parliament ; and for the decisions relating to the invasion of copyright in engravings and prints, we refer to the third part qjF this book, in which the whole subject of " piracy" will he considered. CHAP. III. OP THE RtGHT IN ORIGINAI, SCULPTURE, MODELS, AND CASTS. There are two statutes on the subject of original sculp- ture, models, and casts, which may not inappropriately be introduced in this place as a branch of the fine arts. (1) Godson on- Patents and Copyright, S90. (2) 5 T. B. 45, Thompson v. Symonds. (3) 7 T. R. 620. (4) 1 Camp. 98. See also 2 Vesey, 32T, and Law Journal, May, 1827. In Newton v. Cowie, the Common Fleas held tioth date and name to be essentiiil. g2 84 OF ORIGINAL SCULPTURE, &C. The first of these acts was passed in the year 1798 ; and the last, a short time preriously to the general Copyright Act in 1814. SECTION I. Analysis of the Statutes. The 38th Geo. III. chap. 71, is entitled, " An act for encouraging the art of making new models and casts of busts, and other things therein mentioned." It vests in the proprietor the sole right and property of making new models, or copies or casts from such models, of any bust, figure, or any statue, &c. during the term of fourteen years, provided the name of the maker and the date of publication be put thereon. Persons making copies, without the written consent of the proprietor, may be sued for damages in a special action on the case. The act recites — That divers persons have by their own genius, industry, pains, and expence, improved and brought the art of making new models and casts of busts, and of statues of human figures and of animals, to great perfection, in hopes to have reaped the sole benefit of their labors ; but, that divers persons have (without the consent of the proprietors thereof) copied and made moulds from the said models and casts, to the great prejudice and detriment of the original proprietors, and to the discouragement of the art of making such new models and casts as aforesaid ; for remedy whekeop, and fob preventing SUCH PRACTICES FOR THE FUTURE, IT IS ENACTED, that frOm and after the passing of this act, every person who shall make, or cause to be made, any new model or copy or cast made from such new model of any bust, or any part of the human figure, or any statue of the human figure, or the head of any animal, or any part of any animal, or the statue of any animal, or shall' make or cause to be made any new model, copy, or cast from such new model, in alto or basso relievo, or any work in which the representation of any human figure or figures, or the representation of any animal or animalsi shall he introduced, or shall make, or cause to be made, any new cast from nature of any part or parts of the human figure, or of any part or parts of any animal, shall have the sole right and property in every such new model, copy, or cast, and also in every such new model, copy, or cast in alto or basso relievo, or any work as aforesaid, and also in any such new cast from nature as aforesaid, for and during the term of fourteen years from the time of first publishing the same ; provided always that every person who shall make, or cause to be made, any such new model, copy, or cast, or any such new model, copy, or cast in alto or basso relievo, or any work as aforesaid, or any new cast from nature as aforesaid, shall cause his or her name to be put thereon, with the date of the publication, before the same shall be published and exposed to sale. ANALYSIS OF THE STATUTES. 85 II. .And be it further enactedj that if any person shall, within the said term of fourteen years, make, or cause to be made, arty copy or cast of any such new model, copy, or cast, or any such model, copy, or cast in alto or basso relievo, or any such work as aforesaid, or any such new cast from nature as aforesaid, either by adding to, or diminishing irom, any such new model, copy or cast, or adding to or diminishing from any such new model, copy or cast in alto or basso relievo, or any such work as aforesaid, or adding to or diminish- ing from any such new cast from nature, or shall cause or procure the same to be done, or shall import any copy or cast of such new model, copy, or cast in alto or basso relievo, or any such work as aforesa.id, or any copy or cast of any such new cast from nature as aforesaid for sale, or shall sell or otherwise dispose of, or cause or procure to be sold or exposed to sale, or otherwise disposed of, any copy or cast of such new model, copy, or cast in alto or basso relievo, or any such work as aforesaid, or any copy or cast of any such new cast from nature as aforesaid, without the express consent of the proprietor or proprietors thereof first had and obtained in writing, sigrted by him, her, or them respectively, with his, her, or- their hand or hands,. in the presence of, and attested by, two or more credible witnesses, then, and in all or any of the cases aforesaid, every proprietor or proprietors of any such original model, copy, or cast, and every proprietor or pro- prietors of any such original model or copy or cast in alto or basso relievo, or any such work as aforesaid, or the proprietor or proprietors of any such new cast from nature as aforesaid, respectively, shall and may, by and in a special action upon the case, to be brought against the person or persons so offending, recover such damages as a jury on the trial of such action, or on the execution of a writ of enquiry thereon, shall give or assess, together with costs of «uit. III. Provided nevertheless that no person who shall hereafter purchase the right either in any such models, copy, or cast, or in any such model, copy, or cast in alto or basso relievo, or any such work as aforesaid, or any such new cast from nature of the original pro- prietor or proprietors thereof, shall be subject to any action for vending or selling any cast or copy from the same j any thing, contained in this act to the contrary thereof notwithitanding. IV. Provided also, that aU actions to be brought as aforesaid against any person or persons for any offence committed against this act, shall be commenced within six calendar months next after the discovery of every such offence, and not afterwards. These provisions were rendered more effectual by the 54th Geo. III. c. 56, by which double costs were given, and an additional term of fourteen years in case the maker of original sculpture, models, Sfc. should be living, except he should have divested himself of the right previous to the passing of the act. Before proceeding to the construction which has been put on these acts, we deem it pecessary to insert the several clauses of the last act. 86 OF ORIGINAL SCULPTURE, &C. It is intituled. An act to amend and render more effectual an act of his present majesty for encouraging the art of making new models and casts of busts, and other things therein mentioned, and for giving further encouragement to such arts. It recites — That by an act passed in the 38th year of the reign of his pre- sent majesty, intituled An act for encouraging the art of making new models and casts of busts, and other things therein mentioned, the sole right and property thereof were vested in the original proprietors for a time therein specified — that the provisions of the said act having been found ineffectual for the purposes thereby intended, it is expedient to amend the same, and make other provisions and regulations for the encouragement of artists, and to secure to them the profits of and in their works, and for the advancement of the said arts. It is therefore enacted — That from and after the passing of this act, every person or persons who shall make, or cause to be made, any new and original sculpture or model, or copy or cast of the human figure or human figures, or of any bust or busts, or of any part or parts of the human figure, clothed in drapery or otherwise, or of any animal or animals, or of any part or parts of any animal combined with the human figure or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso relievo, representing any of the matters or things herein before mentioned, or any cast from nature of the human figure, or of any part or parts of the human figure, or of any cast from nature of any animal, or of any part or parts of any animal, or of any such subject containing or representing any of the matters and things hereinbefore mentioned, whether separate or combined, shall have the sole right and property of all and in every such new and original sculpture, model, copy and cast of the human figure and human figures, and of all and in every such bust or busts, and of aU and in every such part or parts of the human figure, clothed in drapery or otherwise, and of all and in every such new and original sculpture, model, copy and cast representing any animal or animals, and of all and in every such work representing any part or parts of any animal, combined with the human figure or otherwise, and of all and in every such new and original sculpture, model, copy and cast of any subject, being matter of invention in sculpture, and of all and in every such new and original sculpture, model, copy and cast in alto or basso relievo, representing any of the matters or things hereinbefore mentioned, and of every such cast from nature, for the term of fourteen years, from first putting forth or publishing the same, provided in all and every case the proprietor or proprietors do cause his, her, or their name or names, with the date, to be put on all and every such new and original sculpture, model, copy or cast, and oii every such cast from nature, before the same shall be put forth or published. 11. And be it further enacted, that the sole right and property of ANALYSIS OF THE STATUTES. 87 all works which have been put forth or published under the protection of the said recited act, shall be extended^ continued tOj and vested into the respective proprietors thereof, for the term of fourteen years, to commence from the date when such last mentioned works respectively were put forth or published. III. And be it further enacted, that if any person or persons shall, within such term of fourteen years, make or import, or cause to be made or imported, or exposed to sale, or otherwise disposed of, any pirated copy or pirated cast of any such new and original sculp- ture or model, or copy or cast of the human figure or human figures, or of any such bust or busts or of any such part or parts of the human figure, clothed in drapery or otherwise, or of any such work of any animal or animals, or of any such part or parts of any animal or animals, combined with the human figure or otherwise, or of any such subject being matter of invention in sculpture, or of any such alto or basso relievo, representing any of the matters or things hereinbefore mentioned, or of any such cast from nature as aforesaid, whether such pirated copy or pirated cast be produced by moulding or copying from, or imitating in any way, any of the matters or things put forth or published under the protection of this act, or of any works which have been put forth or published under the protection of the said recited act, the right and property whereof is and are secured, extended, and protected by this act in any of the cases aforesaid, to the detriment, damage, or loss of the original or respective proprietor or proprietors of any such works so pirated, then and in all such cases the said proprietor or proprietors, or their assignee or assignees, shall and may, by and in a special action upon the case to be brought against the person or persons so offending, receive such damages as a jury on a trial of such action shall give or assess, together with double costs of suit. IV. Provided nevertheless, that no person or persons who shall or may hereafter purchase the right or property of any new and original sculpture or model, or copy or cast, or of any cast from nature, or of any of the matters and tilings published under or protected by virtue of this act, of the proprietor or proprietors, expressed in a deed in writing signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of, and attested by, two or more credible witnesses, shall be subject to any action for copying, or casting, or vending the same, any thing contained in this act to the contrary notwithstanding. V. Provided always, and be it further enacted, that all actions to be brought as aforesaid against any person or persons for any offence committed against this act, shall be commenced within six calendar months next after the discovery of every such offence, and not afterwards. VI. Provided always, and be it further enacted, that from and immediately after the expiration of the said term of fourteen years, the sole right of making and disposing of such new and original sculpture, or model, or copy, or cast of any of the matters or things herein before mentioned, shall return to the person or persons who 88 OF SCULPTVEE. — CONSTRUCTION OF THE ACTS. originally made, or cause to be made, the same, if he or they shall be then living, for the further term of fourteen years, excepting in the case or cases where such person or persons shall, by sale or otherwise, have divested himself, herself, or themselves, of such right of making or disposing of any new and original sculpture, or model, or copy, or cast of any of the matters or things herein before mentioned, previous to the passing of this act. SECTION II. Construction of the Acts. The first act on this subject (38 Geo. III. c. 71) was found to be so defective, that it was held to be no offence to make a cast of a bust, provided it was a perfect fac-simile of the original('). It was also held, in the case of Gahagan v. Cooper, to be no offence under that act to sell a pirated cast of a bust, if the piracy had any addition to, or diminution from, the originalC"). The declaration, however, confined the case to the selling exact copies. But in West v. Francis (which has been referred to by Mr. Godson on this subject), there was a count for selling copies in part by small variations from the main design, and therefore the point did not arise('). The second act remedied these defects ; but no case has been decided under that act as to the insertion of the name and day of publication ; yet it seems clear that the con- struction of the statutes relating to engravings and prints will equally apply to sculpture, models, &c. It appears also that the reasoning on the statutes regarding patterns for linen, are applicable to the present subject(*). CHAP. IV. OF WORKS EXCLUDED FROM LEGAL PROTECTION. The consideration of works excluded from legal pro- tection, on the ground of their unlawful and immoral nature, has been reserved for this part of the treatise ; inasmuch as the same principle which excludes a book, will equally apply to an engraving and to sculpture. The cases, iJtierefore, of this kind, whether referring to books, prints, or sculpture, will be arranged according to the nature of their injurious or illegal character. (1) Godson on Patents, &c. 305. (2) 3 Camp. 111. (3) S Barn, and Aid. 737. (4) Godson on Patents, Sec. 306. WORKS INJURIOUS TO MORALS — RELIGION. 89 SECTION I. Of Works injurious to public morals. The courts of justice endeavour to protect society from the publication of works which tend to degrade the morals of the people; and so strong is the objection to an immoral work, that Lord Ellenborough held an apprehension of a prose- cution for the immorality or illegality of a work (if proved to be well founded by the production of the part printed), would justify a person for refusing to supply a bookseller with the remainder of the manuscript agreeable to a contract. The author might say, I now feel convinced that this work cannot be committed to the press with safety, that it is not a proper one for me to publish, or for you (the bookseller) to print j here I will pause, and will proceed no further in that which will place both of us in peril ('). It has also been held, that a Court of Equity has a superintendency over all books, and may in a summary way restrain the printing or publishing every thing that contains reflections on religion or morality. Protection has been denied to a translation of an immoral work. In the case of Burnett v. Chetwood, in the year 1720, the Lord Chancellor said, Though a translation might not be the same with the reprinting the original, on account that the translator had bestowed his care and pains upon it, yet this being a book which to his knowledge contained strange notions, intended by the author to be concealed from the vulgar in the Latin language, in which language.it could not do much hurt, the learned being better able to judge of.it, he thought it proper to grant an injunction to the printing and publishing it in EnglishC). And an action cannot be maintained to recover the value of obscene or libellous prints or caricatures. Mr. Justice Lawrence observed, that "For prints whose objects are general satire, or ridicule of pre- vailing fashions or manners, he thought a plaintiff might recover ; but he could not permit him to do so for such whose tendency was immoral or obscene ('). SECTION II. Of Publications injurious to Religion. Works which deny the truth of, or vilify, the sacred scriptures, or which tend to -bring them into disrepute, or (1) Gale V. Leckie, 2 Stark. 109-10. (2) 2 Meriv. 441, n. (.S) Fores v. Jones, 4 Esp. N. P. C. 97. 90 WORKS EXCLUDED FROM LEGAL PROTECTION. which lead to a dishelief in revelation, are strictly excluded from legal protection in the Courts of Justice in this country, all of which acknowledge Christianity as part of the law of the land. Thus in the case of Murray v. Benbow, in which an injunction was applied for to restrain a pirated edition of Lord Byron's Cain, Lord Eldon said. The jurisdiction of this court in protecting literary property is founded on this, that where an action will lie for pirating a work, then the court, attending to the imperfection of that remedy, grants its injunction, because there may be publication after publication which you may never be able to hunt down by proceeding in the other courts. But where such an action does not lie, I do not apprehend that it is according to the course of the court to grant an injunction to protect the copyright. Now this publication, if it is one intended to vilify and bring into discredit that portion of scripture history to which it relates, is a publication, with reference to which, if the principles on which that case at Warwick (Dr. Priestley's case) was decided by just principles of law, the party could not recover any damages in respect of a piracy of it. This court has no criminal jurisdiction ; It cannot look on any thing as an offence ; hut in those cases it only administers justice for the protection of the civil rights of those who possess them, in consequence of being able to maintain an action. You have alluded to Milton's immortal work ; it did happen in the course of last long vacation, I read that work from beginning to end; it is therefore quite fresh in my memory, and it appears to me that the great object of its author was to promote the cause of Christianity ; there are, undoubtedly, a great many passages in it, of which, if that were not its object, it would be very improper by law to vindicate the publication ; hut, taking it aitog-etfter, it is clear that the object and effect were not to bring into disrepute, but to promote, the reverence of our religion. Now the real question is, looking at the work before me, its preface, the poem, its manner of treating the subject, particu- larly with reference to the fall and the atonement — whether its intent be as innocent as that of the other with which you have compared it; whether it be to traduce and bring into discredit that portion of sacred history. This question I have no right to try, because it.has been settled, after great difference of opinion among the learned, that it is for a jury to determine that point ; and where, therefore, a rea- sonable doubt is entertained as to the character of the work (and it is impossible for me to say I have not a doubt — I hope it is a reason- able one), another course must be taken for determining what is its true nature and character. There is a great difficulty in these cases, because it appears a strange thing to permit the multiplication of copies, by way of preventing the circulation of a mischievous work (which I do not presume to determine that this is) ; but that I cannot help ; and the singularity of the case, in this instance, is more obvious^ because here is a defendant who has multiplied his work by piracy, and does not PUBLICATIONS INJURIOUS TO RELIGION. 91 think proper to appear. If the work be of that character which a Court of Common Law would consider criminal, it is pretty clear why he does not appear, because he would come confitens reus, and for the same reason the question may, perhaps, not be tried by an action at law ; and if it turns out to be the case, I shall be bound to give my own opinion. That opinion I express no further now than to say, that after having read the work, I cannot grant the injunction until you shew me that you can maintain an action for it. If you cannot maintain an action, there is no pretence for granting an injunction ; if you should not be able to try the question at law with the defendant, I cannot be charged with impropriety if I then give my opinion upon it. It is true that this mode of dealing with the work, if it be calcu- lated to produce mischievous effects, opens a door for its wide disse- mination 5 but the duty of stopping the work does not belong to a Court of Equity, which has no criminal jurisdiction, and cannot punish or check the offence. If the character of the work is such, that the publication of it amounts to a temporal offence, there is another way of proceeding, and the publication of it should be proceeded against directly as an offence ; but whether this or any other work should be so dealt with, it would be very improper for me to form or intimate an opinion('). In the same year (1822) occurred another case, which may be classed in the same order, namely, that of Lawrence V. Smith; and considering the importance of the principle established by these decisions, we deem it proper to set forth the judgment of the court at large. It appeared that Mr. Lawrence published his Lectures on Physiology, in which, mixed with a great collection of valu- able and appropriate facts, were some episodical theories on the nature of the soul, and the origin of mankind, which were supposed to lead to a disbelief in revelation. The lec- tures were soon pirated. An application was made by the piratical publisher to dissolve the injunction. It was moved on the ground that the ■' the evil tendency of the work was as clear as the sun at noonC)." The defendant was heard by his counsel to maintain that " his publication denied Christianity and revelation, and was contrary to public policy and morality ; that it was more dangerous from the author's scholar-like command of the language, and his scien- tific mode of treating the subject, which, acting upon undis- ciplined minds, was calculated to bring them under its control, and thereby work the greater mischief: aiid that (1) 6 PetersdorfF Abr. 558-9. (2) Was this " coming into court with clean hands'!" Was it consistent with the principle which msuntains that a man shall not avail himself of his own wrong ? 92 WORKS EXCLUDED FEOM LEGAL PEOTECTJON. therefore the restraint which the injunction imposed on its dissemination must be removed !" The LoKD Chancellor said, that this case had been argued at the bar with great ability. He would explain in a few words. the principles on which his decision would be founded. On the obser- vations which had been made on the College of Surgeons, as the place in which these lectures had been read, he would not touch j he would only treat the plaintiff as the author of the work. This case had been introduced by a bill filed by Mr. Lawrence, in which he stated that he was the author of this book, which the defendant had also, published^ and that he was entitled to the protection of this court, in preser- vation of the profits resulting from its publication. Undoubtedly the jurisdiction of this court was founded on this principle, that where the law will not afford a complete remedy to literary property when invaded, this court will lend its assistance ; because, where every publication is a distinct cause of action, and where several parties might publish the book, if a man were obliged to bring an action on each occasion, the remedy would be worse than the disease. But then this court will only interfere where he can by law sustain an action for damages, equal to the injury he has sustained. He might then come here to make his legal remedy more effectual. But if the case be one which it is not clear will sustain an action at law, then this court will not give him the relief he seeks. The present case had been opened as an ordinary case of piracyj and he took it that nothing was then said as to the general tenoy of the work, or of particular passages in it. He, the Lord Chancellor, was bound to look, not only to the tenor, but also to partiailar passages unconnected with its general tenor{^) ; for if there were any parts of it which denied the truth of scripture, or which furnished a doubt as to whether a court of law would not decide that they had denied the truth of scripture, he was bound to look at theni and decide accordingly. There was a peculiar circumstance attending this case, which was, that the defendant possessed no right to the work, but said to the plaintiff, " this book is so original in its nature, as to deprive you of aU protection, at law against others and myself, and I will therefore publish it." Now his Lordship knew it to be said that in cases where the work contained criminal matter, the court, by refusing the injunction, allowed the greater latitude for its dissemination. But his answer to that was, that this court possessed no criminal jurisdiction. It could only look at the civil rights of the parties, and therefore whether a different proceeding were hereafter instituted against the defendant or the plaintiff, or both, was a circumstance with which he had nothing to do. The only question for him to determine was, whether it was so clear that the plaintiff possessed a civil right in this publication, as (1) But see the preceding case, in which it is laid down that the true criterion is to *-'ie the publication altogether, and thus to judge of the general intent. WORKS INJUHIOUS TO PEACE AND JUSTICE. 93' to have no iloubt upon his mind that it would support an action in a Court of Law. He had read the whole of this book with attention, and it; certainly did raise such a doubt in his mind. It might probably be expected, that after the able and learned argument which had gone forth to the world upon a subject so materially affecting the happiness of mankind, he should state his answer to that argument ; but if he left these parties to a Court of Law (and he should leave them to a Court of Law)j his opinion might have the effect of prejudicing the question to be there determined j all he would say, therefore, was, that enter- taining a rational doubt upon some parts of the work as to their being directed against the truth of scripture, he would not continue this injunction, but the plaintiff might apply for another after he had cleared away that doubt in a Court of Law. Further than this, his ' Lordship would not interfere('). SECTION III. Of Works injurious to Public Peace and Justice. Publications which are calculated to disturb the public peace, or to be injurious to the good government of the state, or which tend to bring into contempt the administration of justice, are all shut out of the pale of the law. There can be no right of property in such compositions. The first case in which this doctrine was judicially pronounced was that of Dr. Priestley, who brought an action against the hundred for damages for the injuries sustained by him in consequence of the riotous proceedings of the mob at Birmingham ; and among other property alleged to have been destroyed, claimed compensation for the loss of certain unpublished MSS. offering to produce booksellers as witnesses to prove that they would have given considerable sums for them. On behalf of the hundred it was alleged,, that the plaintiff was in the habit of publishing works injurious to the government of the state; upon which. Lord Chief Justice Eyke said, if any such evidence had been produced, he should have held it fit to be received as against the claim made by the plaintiff(0. In another case, that of Hime v. Dale('), which was an (1) PetersdorfPs Abr. 659-60. (2) 2 Meriv. 437. (3) The mischievous tendency of the production would sufficiently appear (it was contended) from the following stanza : The world is inclined To think justice blind ; Yet what of all that » She will blink like a bat At the sight of friend Abraham Newland, Oh ! Alrraham Newland ! magical Abraham Newland I Tho' justice 'tis known Can see thro' a mill stone, She can't See thro' Abraham Newland. 94 WOKKS EXCLUDED FPOM LEGAL PROTECTION. action for pirating the words of a song called " Abraham Newland," Mr. Garrow contended that the song was of such a description that it could not receive the protection of the law. It professedj he said, to be a panegyric on money, but was in reality a gross and nefarious libel on the solemn administration of British justice. The object of this compositiois was not to satirize folly, or to raise the smile of innocent mirth, but being sung in the streets of the capital to excite the indignation of the people against the sacred ministers of the law, and the , awful duties they were appointed to perform('). Lord Ellenborouoh. If the composition appeared on the face of it to be a libel, so gross as to affect the public morals, I should advise the jury to give no damages. I know the Court of Chancery on such an occasion would grant no injunction. But I think the present case is not to be considered one of that kind. Lawrence, J. The argument used by Mr. Garkow on this fugitive piece as being a libel, would as forcibly apply to the Beggar's Opera, where the language and allusions are sufficiently derogatory to the administration of justice. The last case of this kind was that of Southey v. Sherwood, which was decided in the year 1822. The author had written a seditious poem, called " Wat Tyler," which, having come into the defendant's possession, he published it without Mr. Southey's consent, and^the latter applied to the Court of Chancery for an injunction. The work was composed in the year 1794, when the author was under twenty-one. In that year there was an intention to publish it. It was sent by the plaintiff to Mr. Ridgway. The latter gave no account how it passed out of his hands. The Lord Chancellor said, if a man leaves a book of this description in the hands of a publisher, without assigning any satisfactory reason for doing so, and has not enquired about it during twenty-three years, he can have no right to complain of its being published at the end of that period. But his lordship, in another part of his judgment, said, there is a difference between the case of an actual publica- tion by the author, which all the world may pirate, and that of a man, who having composed a work, of which he after- wards repents, and wishes to withhold it from the public. I will not say that a principle might not be found which would apply to such a case as that ; but then it is necessary to take all the circumstances of the case into consideration^). The Lord Chancellor subsequently delivered the following judgment. (1) 2 Camp. 29. (2) Meriv. 438. WOEKS INJURIOUS TO PEACE AND JUSTICE. 95 " I have looked into all the affidavits, and have read the book itself. The bill goes the length of stating, that the work was composed by Mr. Southey in 1794, that it is his own production, and that it has been pub- lished by the defendant, without his sanction or authority; and therefore seeking an account of the profits which have arisen from, and an injunction to restrain, the publication. 1 have examined the cases that I have been able to meet with, containing precedent for injunctions of this nature, and I find that they all proceed upon the ground of a title to the property in the plaintiff. On this head a dis- tinction has been taken, to which a considerable weight of authority attaches, supported, as it is, by the opinion of Lord C. J. Eyre, who has expressly laid it down that a person cannot recover in damages for a work which is in its nature to do injury to the public. Upon the same principle this court refused an injunction in the case of Walcot ». Walker, inasmuch as he could not have recovered damages in an action. After the fullest consideration, I remain of the same opinion as that which I entertained in deciding the case referred to. It is very true, that in some cases it may operate so as to multiply copies of mischievous publications, by the refusal of the court to interfere by restraining them ; but to this my answer is, that sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties, except it relates to their civil interests ; and if the publication be mischievous, either on the part of the author or the publisher, it is not my business to interfere with it. In the case now before the court, the application made by the plaintiff is pn the ground only of his civil interest, and this is the proper place for such an application. I shaU say nothing as to the nature of the book itself, because the grounds upon which I am about to declare my opinion, render it unnecessary that I should do so." His Lordship then recapitulated the circumstances of the original intention to publish, the subsequent abandonment of the intention, the length of time during which the plaintiff had suffered the work to remain out of his possession, without inquiry, and its recent publica- tion by the defendant. " Taking," said his Lordship, " all these circumstances into my consideration, and having consulted all the cases which I could find at all regarding the question, entertaining also the same opinion with C. J. Eyre as to the point above noticed, it appears to me that I can- not grant this injunction, until after Mr. Southey shall have established his right to the property by an action('). (1) 2 Meriv. 438. The question of the protection claimed for illegal works is one of general importance, and has been productive of much litigation. It has been ably discussed by Mr. Peters- DORFP, in his comprehensive abridgment, and we subjoin the mbstance of his observa- tions thereon. From the decisions of Lord Eldon, it will appear that that learned judge was well aware of the ground he was treading on, in refiising those injunctions which he felt himself hound to do from acknowledged law and precedent; but he shows that the rule, with all its practical evils and absurdities, is now part of the law of the land ; and that it is only by an alteration of the law that it can be got rid of. Two arguments are urged in>defence of this system. 96 WORKS EXCLUDED FROM LEGAL PROTECTION. There is this distinction in Southey's case from that of Byron and Lawrence, that the former required the suppression of a work which had been published without his consent, which he had never previously published himself, and desired to be suppressed. In the latter instances, the object of the suit was to preserve the profit of exclusively printing and publishing the work. It would seem that Mr. Southey might have put his case on the footing of those of Pope and Swift, in which the exclusive right to the manuscript was decided. Mr. Southey did not complain that he was deprived of the profits which he might derive from publishing the work himself, but he objected to the publication altogether. During the lapse of a quarter of a century, his views had undergone a change. He came within the reasoning advanced by Lord Mansfield(') 1st. Admitting the incidental advantage tliat would arise by the protection from piracy of a work, however libellous, si)ch protection cannot be aSfbrded without violating the established principle of law, that there can be no property in what is injurious. Waiving the answer afforded by the equally established principle that a man shali not profit by his own wrong ; and that a defendantjcannot plead that his own act is criminal, to support a maxim, established only because it is generally useful, in the cases in which it is hurtful, is a puerile preference of the means to the end. Sndly. It is said, that by destroying the profit, it prevents the publication of injurious works. Now, if it were true that it destroys the profit, it does not follow that it will prevent the publication. The desire of obtaining notoriety, and of producing an effect, are (often) much stronger motives to authors, than the mere contingency of profit Besides, the profit will not be destroyed j it will not necessarily be diminished when the piracy has been foreseen. The publisher must protect himself from being undersold, by redudng both the cost and the price of the work; and trust to a small profit on a wide scale, instead of a profit greater in each individual instance, but not so often repeated. If Don Juan, and such like publications, had been the subject of copyright, and had been confined by its price to a class of readers with whom its faults might have been somewhat compensated by its merits, with whom, in fact, the ridiculfe which it endeavours to throw upon virtue, might have been partially balanced by that with which it- over- whelms vice, no evil, comparatively speaking, . would have accrued to the public. The proprietor's price was intended to confine the circulation amongst those to whom each side of the question was familiar; that of the pirate's, to diffuse it among readers with whom its impieties have all the face of novelty, and to whom the answers are unknown (o). As a remedy for these evils, the Quarterly Review(6) suggests, that it would he sufficient if a short Act of Parliament were passed, declaring that the libellous character of the work shall never be resorted to in bar of any proceeding at law or in equity for the infiingement of copyright. The efifect of such an act wonld be to subject the piratiial publisher, whatever may be the tendency of the work, to those restraints which the law has imposed upon piracy, namely, an injunction, with an account of the profits, and an action at law for damages. We at first thought (say the reviewers^ of excluding the two latter remedies, and merely proposing an injunction. This would be a slighter alteration of the law, and spare the prejudices of those whom no advantage can reconcile to the enabling a plaintiff to demand damages, and an account of " the unhallowed profits of a libellous publication ;" biit it would leave these unhallowed profits where they ought Hill less to be — ^in the hands of a libellous pirate. (0) 6. Petersdorff Abr. 560-1. (6) April, 1822. (1) Vide pages 8, 9, 'ante. — In Macklin v. Richardson, it was also decided, that the author has a property in an unpublished work, independent of the statute of Anne, which is capable of being protected by injunction. Amh. 694. PUBLICATIONS INJURIOUS TO INDIVIDUALS. 97 — he had repented, and become ashanjsed of .his former senti- ments; he wished to suppress their publication; and ought t6 have been allowed the exclusive dominion over his own manuscript. SECTION IV. Of Publications injurious to private Individuals. The Courts of Equity will not a,ssist an author, w;hose work contains a libel on private character. The criterion of excliasion may be stated to be the liability of the writer to an action for damages, or a prosecution for the libel. A case in illustration of this principle was that of Dr. Walcot, who filed a bill against booksellers of the name of Walker for an injunction to restrain them from publishing two editions of his works, upon a dispute as to the construction of the agreement between the parties. The defendants by their answer admitted that' they had published in one of the editions some of the plaintiff's works, which they were not authorized to publish. As to that edition, therefore, they submitted. ' The Lord Chancellor, in his judgment, observed, " If the doc- trine of Lord C. J. Eyre is right, (and I thinkjt is) that publications may be of such a nature that an author can maintain no action at law, it VS( not the business of this court, even upon the submission in the answer, to decree either an injunction, or an account of the profits of works of such a nature that the author can maintain no action at law for the invasion of thali which he calls his property, but which the policy of the law will notpermit him to consider his prpperty. It is no answer that the defendants are as criminal. ItBs the .duty of' the^courtto know whether an action at. law would lie| for jf not^ the court ought not to give an account of the unhallowed profits, of Zi6eZZoiWi publica- tions. At .present, .1 am in total ignorance of the nature of tjhe.work, and whether the plaintiff can have any property in it or not. But I wiU see these publications, and determine upon the nature of theni, whether there is question enough to send to law, as to the property in these copies ; for if not, I will act upon that submission in the answer. If upon inspection the work appears innocent, 1 wiU act upon that submission ; if criminal, I will not act at all ; and if doubtful, I will send that question tothelaw('). It seems doubtful whether an action could be maintained for destrtiying a picture containiag a scandalous libtel upon individuals, and^ which had been publicly exhibited ; but it (1) r Vesey, 1. 6 Petersdorff Abe 5$r. 'H 98 WORKS EXCLUDED FROM PROTECTION -PIRACY. has been decided that the owner of such a libellous picture so destroyed, is, atmbst^ only entitled to recover the value of the materials. Thus, in the case of Du Bost v. Beresford, it appeai'ed;, that the picture in question, entitled La Belle et la Mte, or "Beauty and the Beast," was a scandalous libel upon a gentleman of fashion and his lady, who was the sister of the defendant. It was exhibited in a house in Pall Mall, for money, and great crowds went daily to see it, till the defendant one morning cut it ,in pieces. Lord Ellenborouoh. The only plea on the record being the genieral issue of not guilty, it is unnecessary to conisider whether the deStriiction of this picture might or might not have been justified. The material qnestioti is, as to the value to be set upon the article destroyed. If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a picture. Upon an application to the Lord Chancellor, he would have granted an injunction against its exhibi- tion, and the plaintiif was both civilly and criminally liable for having exhibited it. The jury, therefore, in assessing the damages, must not consider this as a work of art, but rnust award the plaintiff the value of the canvas and paint which formed its component parts(')i , SECTION V. Of Piratical Works. As the law will not protect works which are immoral and unlawful, because there can be no right of property ip such productions, so also it refuses . its aid in preserving the exclusive use of books which: have been piratpd from previous publications. The law will not assisi. the robber in multiplying his spoil. We reserve to the third part of this book the full con- sideration of the subject of literary piracy^ It will be suffi- cient, in this place, to state, generally, that the law not only withholds its protection from books which are wholly pirated, but from those which are, in substance, merely .copies and imitations; or which, although in some parts diiferent, yet are in general the same. Thus in a book of chronology^), though the same facts must be rel?ited, yet if the new work transcribes literally page after page, although other parts of it are original, the former author will be entitled to recover damages, and consequently the pirate would be excluded from proceeding against any one who had subsequently copied the passages thus illegally taken. So also in the publication of original poems, together with (1) 2 Camp. 511. (2) Trusler v. Murray, 1 East, 363, note. SPECIAL QB PEEBOGATIVE COPy EIGHT. 99 Others which had been before published, a Court of Equity will grant an injunction to restrain the publiQation('), and it follows that the pirated part of the work will receive no protection. A similar decision was made with respect to an abridg- ment of Cook's Voyage round the World(=). A bona Jide abridgment or compilation is considered in the nature of an original work ; but nithole passages must not be transcribed to the injury of the original author, nor the work abridged in e|. merely colorable mannerf). It seems clear, that where these rules are yiolated, the law will not interfere between the first and subsequent pirates, or lend itsfilf to the protection pf property thus fraudulently obtained. CHAP. V. OF THE SPECIAL COPYRIGHT OF THE CllOWN ANDTHE UNIVERSI'I'IES, AND OF PUBLISHING JPAIlillAMENTAUY AND JUDICIAL PROCEEDINGS,' Sect. i. Of the former prerogative Copyright in I^aw Books, Almanacs, and the Latin Grammar, In the review, which we have taken of the progressive stages of the law in relation to copyright in' general, we passed over th*' peculiar and special nature of prerogative copyright. Before entering on the present state of the law in this respect, we may advert briefly to its past condition, and set forth the instances in which the Universities and the Stationers' Com- pany, as well a* the Crown, claimed an exclusive right of printing ; but which claimshave been exploded by the learning and independence of the distinguished judges in recent times. We avail ourselves of the language of Mr. Erskine in describing the moiiopoly of printing, which formerly was exercised by the Grown. "On the first introduction of printing (says this distin- guished- advocate), it was considered, as well in Ei^land as in other countries, to be a matter of state. The quick and exteur siv'e circulation of sentiments and opinions which. . that invaluable art introduced, could not ibiit fell under th« gripe of Governments, whose principal strength was built upon the ignorance of the people who were to submit to them. The press was therefore wholly under the coercion of the Crown; and {1) Case of Mason's Poems, per Lard Bathurst. (2) 1 East, 363, noie. (3) Vide p. 76 ante, a]t)4 Part III. pQSt. H 2 100 SPECIAL OR PREROGATIVE COPYRIGHT. ail printing, not only o{ public books containing ordinances, religious, or civil, but every species of publication whatsoever, was regulated by the - King's proclamations, prohibitions, charters of privilege, and, finally, by the decrees of the Star Chamber. ' ' "After the demolition of that odious jurisdiction, the Long Parliament, on its rupture with Charles the First, assumed the same power which had before been in the crown ; and aftier the Restoration, the same srestrictions were re-enacted, and re-annexed to the, prerogative by the statute of the 13th and 14th Charles II., and continued down by subsequent acts till aftei: the revolution." " The expiration of these disgraceful statutes (in 1694), by the refusal of Parliament to continue them any longer, formed the great ara of the liberty of the press in this country, and stripped the crown of every prerogative over it, except that which, upon just and rational principles of Government, must ever belong to the executive magistrate, namely, the exclusive right to publish religious or civil constitutions ; in a word, to promulgate every Ordinance which contains the rules of action by which the subject is to live and to be governed(')." Amongst the works formerly claimed as exclusively belonging to the crown, or its patentees, were law books, almanacs, and the Latin grammar. From the time of 26th Henry VIII. down to the 12th Anne, various patents were granted to different, persons, giving them full power to print and re-print prerogative copies, in exclusion of all other persons. The King's printer in England enjoys the benefit to be derived from printing the Acts of Parliament, and other docu- ments of the state ; and the King's printers for Scotland and Ireland possess similar patents. The Universities of Oxford and Cambridge, in common with the King's printer, claim a right to print all Bibles to be circulated in England ; and the Company of Stationers formerly exercised, in conjunction with the Universities, an exclusive power of printing almanacs. We shall proceed to .consider in their order the several works which were thus anciently monopolized under the charters and patents granted by the crown. 1st. Of Law Books. The following were the reasons on which the monopoly (1) Ridgway's Coll. 1st. vol. LAW BOOKS. ^ 101 in law books was attempted to be upheld, namely — that this privilege had been always allowed, which was a strong argu- ment in its favor ; although it could not be said to amount to a prescription, as printing was introduced within time of memory ; — that it concerned the state, and was matter of public care ; — that it was in nature of a proclamation, which none but the King could make ; — that the King had the making of judges, Serjeants, and officers of the law 5 — that though it could not be extended to a book containing a quotation of law, it applied to those in which the principal design was to treat on that subject('). The King's prerogative in law publications is now, however, treated as perfectly ridiculousC). Nothing, indeed, could be more preposterous than the argument, that because the King appointed the judges, he had a monopoly in the publication of their decisions ! It was urged, also, that as he paid for the composition of the year books, he was entitled to them on the ground of purchase. Mr. Justice Yat5s, however, in the cause of Millar v. Taylor(') observed, that the expence of printing prerogative books was, " in fact, no private disbursement of the King, but done at the public charge, and formed part of the expences of Government." It could hardly, he said, be contended, that the produce of expences of a public sort, were the private property of the King, when purchased with the public money. He could not sell or dispose of one of those compositions. How, then, could they be his private property, like private property claimed by an author in his own compositions ? Besides, the purchase by the King could only comprise the right of an individual author. He did not compose the works personally, 'and could only acquire such right as a subjectwas able to dispose of. It has never been contended that the mere act of purchasing a work, conferred on the purchaser of the manuscript a copyright beyond the interest (1) Roper and Streoter, 4 Bac. Ab. Ait. " Prerogative." — In this case. Roper bouglit of the executors of Justice Croke, the 3rd part of his, Reports, which he printed. Colonel Streater had a grant for years from the crown for printing all law books, and printed upon Roper, on which Roper brought an action on the statute 13th and 14th Car. II. c. 33. Streater pleaded the King's grant. On demurrer, it was adjudged, in B. R. for the plaintiff, against the validity of the patent j on these reasons, that this patent tended to a monopoly — that it was of a large . extent— that printing was a handicraft trade, and no more to be restrained than other . trades — that it was difficult to ascertain what should be called a law book— that the words in the patent, touching cr concerning the common or statute law, were loose and uncertain-:- that if this viexe to be considered as an office, the grant for years could not be good, as it would go to executors and administrators, ' and that there was no adequate remedy in the way of redress in case of abuses by unskilfulness, selling dear, printing ill, &c. But this judgment was reversed on a writ of ei'ror in Parliament. (2) 4 Burr. 2315. 3 Pere Williams, 255. (3) 4 Burr. 2384,, 102 SPECIAL OR PREROGATIVE COPYRIGHT — ALMANACS. possessed by the author. The duration or extent of the right can in no degree depend on the purchaser: if it did so, it would follow, that under the present Acts of Paliament the copyright in a book would continue for the life of the assignee, and not for the life time of the author ; and a copy- right might thus easily be perpetuated, by the author selling his interest to two or more persons, and on the death of one of them, the survivors might transfer the copy to others, and so on for ever. 2nd.' Of Almanacs. A patent was granted by James I. for the exclusive printing of almanacs, and the right continued to be insisted upon by the Universities and Stationers' Company as matter of prerogative, after the final decision of the general question of literary property in 1774. The origin of the prerogative claim in these publications, is put upon the following curious reasons : — 1st. Because derelict. 2nd. Because almanacs regulate the feasts of the church('). In the year 1778, Mr. Carnan having made several improvements in the nature of the work, and published it on his own account, the Universities and the Stationers' Company filed a bill in Chancery to restrain the publication. The court having doubted the legality of the patent, directed a case to the Common Pleas ; the judges of which court, after two arguments, decided that the patent was void^). A bill was then brought in " to revest the monopoly in almanacs, which had fallen to the ground by the above- mentioned judgments in the King's Courts." Mr. Erskine was heard against the bill at the bar of the House of Commons, and it was rejected by a majority of forty-five votes('). (1) Mod. 256. (2) 2 Blac, Rep. 1004. (3) Vol. 37, Journak, 388. It is from the Splendid speech on this occasion that we have made the extract at the commencement of this section. In contrast to the title of tlie bill given to it by its proposer, Mr. Erskine face- tiously adduced the following, as more truly, characterizing its nature :^- " Whereas the "Stationers' Company and the two Universities, for above a century last past, contrary to law, usurped the right of printing almanacs, in exclusion of the rest of His Majesty's faithful people, and have from time to time harassed and vexed divers good subjects of our Lord the King for printing the same, till checked by a late decision of the Courts of Law : Be it therefore enacted, that this usurpation be made legal, and be confined to them in future." " This would have been a curiosity indeed, and would have made some noise in the House, yet it is nothing but the plain and simple truth j the bill could not pass without making a sort of bolus of the preamble to' swallow it in." LATIN GRAMMAR— AjCTS OF STATE* lp3 3rd. Of the Latin Grammar, The claim to a prerogative copyright in the old Latin grammar, was grounded on the allegation that the work had been originally written and conippsed at the King's expienoeC); But this pretension, like that in favour of law hookp, is now considered as wholly untenable^). The late Sir W. D. Evans, in discussing the prerogative of the crown, well observes, that although it may be rather a matter of curiosity than one of practical utility, the examina- tion of the nature and foundation of the right will certainly lead to the conclusion, that such right Could have had no legitimate origin upon any principles of the common law at present acknowledged. It seems, indeed, that the only occa- sion on which the validity of any of these patents was fully considered in a court of law as between the public and the crown, it was decided against them. SECTION II. Of the Prerogative-Copyright in Acts of State. ' The wo^ks in which a prerogative copyright is still retained, (though with regard to some of them most incdnr sistently) are l£e following,: — 1st. Acts relating to thei stefe, namely, the statutes, the Kingfs proclamations, the orders of Cpuijcil. 2nd. ,A.cts relating to the church, namely, the liturgical and other divine service, and the JEngUsh translation of the Bible. ' ., In some of these the crown maiiltains, by its own printer, a soZe copyright; and in others it is exercised corijointly with the Universities, under their respective charters. Xst. Of the Statutes. • • On grounds of political and public convenience, it is said, that the King, as executive magistrate, has the right of pro- mulgating to the people all acts of state and government('). Mr. Justice Yates. "The right of the, cro\yn to the sole and exclusive .printing of what is called prerogative copies, is .founded on reasons of religion or state. The only' consequences to which they lead are of a natural and public concern, respecting 'the established religion or government of the kingdom'. (1) i Burr. 2329, 2401. (2)'ll). 23l5. 3 Pare Williams, 255. (3) 2 Blac. Com. 410. 104 SPECIAL OR PREROGATIVE COPYRIGHT. Lord Mansfield considered the existence of prerogative copies as merely a modification of the general and common right of literary property. He discussed at length the position that crown copies were founded solely on property, and said, that in Basket's case(') they had no notion of the prerogative of the crown over the press, or of any power to restrain it by exclusive privileges, or of any power to control the sub- ject matter upon which a man might write, or the manner in which he might treat of it. They rested -upon property from the King's right of original publication. The copy of the Hebrew Bible, the Greek Testa- ment, or the Septuagint, does not belong to the King — it is common ; but the English translation he bought, and therefore it has been con- cluded to be his property. His power rests in property. His sole right rests on the foundation of property in the copy by the Common Law. What other ground (said he) can there be for the King's having a pro- perty in the Latin grammar, (which is one of his most ancient copies) than that it was originally composed at his expence ? The exclusive right of printing Acts of Parliament and other matters of state, has been looked upon more favorably than the other branches of the prerogative in question. Lord Clare, in the case of Grierson v. Jackson ('), said he could very well conceive that the King should have a power to grant a patent to print the Statute Bpoks, because it was necessary that there should be a responsibility for correct printing, and because copy can only be had from the Rolls of Parliament, which' are within the authority of the crown. Sir William D. Evans observes, that the legal right in this monopoly of the statutes, considered with relation to its origin, rests upon no juster principles than the exploded irights respecting the Eatin grammar and alma- nacs. ' Previous to the invention of printing, the usual course was to send the statutes to be proclaimed by the Sheriffs. Then, as now, every subject was bound to have taken notice of the contents of them at his peril ; and there is not the slightest trace of authority- for a re- striction of the employment of making manuscript copies, which, to the lawyers and judges of that day, must have been essentially necessary, although in case of any question arising judicially with respect to the contents of a statute, the original record, or some duly authenticated copy, would of course be resorted to ; and the learned Annotator adds, that be cannot discern any legal principle upon which a discovery, that had the effect of facilitating the multiplication of copies, could limit and restrain that common right of producing such copies which previously existed. In fact (says he), this authority, originally claimed by the crown, had no particular (1) 1 Bl. 105. 2 Burr. 661. (2) Ridgway's Reports, 304, ACTS OF STATE. ' 105 relation to the benefit of affprding to the public more accurate information upon the ordinances of Parliament, than could otherwise have been obtained ; but was merely one amongst many other instances of the application of that general overwhelming system of monopoly, which is now reduced to very circumscribed limits, and supported only upon grounds and principles that in former times were never thought of. We conclude this part of the subject by referring to the case of Baskett v. The University of Cambridge, which is always quoted in support of the prerogative copyright ; but it is observable that the parties in this litigation were equally interested in upholding the general prerogative, though they had quarreled about its exercise in that particular instance. In that case the plaintiffs, who were the King's printers, brought a bill into the Court of Chancery to restrain the defendants from printing or selling a book entitled, "An exact Abridgment of all the Acts of Parliament relating to the Excise on Beer, &,c." It was sent into the King's Bench for the opinion of the court upon the Acts of Parliament and Patents. Several letters patent were insisted on by the plaintiffs, the last bore date in the 12th year of Queen Anne, by which the sole power of printing all, and all sorts of abridgments of all and singular statutes and Acts of Parliament, was given to the grantees, with a prohibition against all others. On the other hand, the defendants contended that by a patent granted in the 26th year of Henry Vill. they might lawfully print, within the University, all manner of books approved by the Chan- cellor and Vice-Chancellor, and three doctors, and might put them to sale wherever they pleased j and that by a patent dated 3 Car. I. the King confirmed that right to the University, notwithstanding any grant or prohibition contained in the subsequent letters patent, or any of them. The case was argued four times during the space of six years, and the following certificate Was made by Lord Mansfield and the other judges. " Havijig heard counsel on both sides, and considered of this case, we are of opinion that during the term granted by the letters patent, dated the 13th of October, in the I2th year of the reign of Queen Anne, the plaintiffs are entitled to the right of printing Acts of Parliament, exclusive of all other persons not authorized to print the same by prior grants from the crown . " But we think that by virtue of the letters patent, bearing date the 20th dayoi July, in the26th year of the reign of King Henry VIII., and the letters patent bearing date the 6th of February, in the 3rd year of the reign of King Charles I. the Chancellor, Masters, and scholars of 106 SPECIAL OR PKEROGATIVE COPYRIGHT. the University of Cambridge are entrusted with a concurrent authority to print Acts of Parliament, and abridgments of Acts of Parliament, within the said University, upon the terms in the said letters patent(*). 0/ the Statutes published with Notes and Selections of the Statutes. It seeibs to have been agreed that the privileged copies may be printed by others than those having the patent right, if accompanied by boria Jide notes. In the case of Baskett v. Cunningham^), the defendant, in Conjunction with several booksellers, was publishing in weekly numbers A Digest of the Statute Lavr methodized under alphabetical heads, with large notes frbm Lord Coke, and other writers on the law. He had contracted with Strahan and Woodfall, the proprietors Of the patent for printing law books, to print this work, and it was printed at their press. Baskett, the King's printer (Whose patent extended to all statutes), filed a; bill for an injunction. It was urged that the book was not within the meaning of the letters patent, being a work of labor .^nd industry, and the method entirely new. The Lord Chancellor, however, was of opinion, that the work was within the patent of the King's printer, and that the notes were merely coUusiye. . 3ut he would not infeifere between the tjYP con- tending patents in the summary method of .injunction, but left them to adjust their. respective j:ights in the course of law. He, therefore^ ordered an injunction to issue to restrain the proprietors from printing at any other than at a patent press; which, as Woodfall and Strahan were strictly in league with Baskett, and were at that time jointly concerned in a new, edition of the Statutes, was equivalent to a total injunction, the law printers finding means to elude theijTr contract with Cunningham. 'ind. Of Proclamations and Orders in Cdutldl. Though it was decided in the case of B^skeitt v. The University of Cambjidge('), that the University had, under letters patent, a concurrent authority with J^^ Crown to print Acts of Parliament, and abridgments of Acts of Par- liament, within the University, it seems this authority has not been extended to the King's Proclamations, Orders in Council, and other State Papers. These latter Acts of State would, therefore, appear vested in the king's printer solely. (1) Baskett v. 0t)iveftity of Cambridge, 1 Bla. Bep. 105. 2 Burr. 660. (2) 1 Bl. Rep. 370. 2 Eden, 137. 2 Evans's Stat. 622. (3) 2 Burr. 661. 1 Blac. Bep. 10.5, cited page 105 ante. TRANSLATION OF THE BIBLE;. ' 107 SECTION III. Of the Copyright of the Kinr as head of the Church. Is*. Of the English Translation of the Bible, The King's prerogative in the exclusive printing of the Bible, is confined to the English translation: which, it: is said, he bought, and, therefore, it has been concluded to be his property('). Mr. Justice Blackstone rests the claim of the King on the ground as w^U of his being the Head of the Church, as of original purchase. " On these two principles combined (he says), the exclusive right of printing the translation of the Bible is foundedO." The assumption of the private purchase, howeyer, being now altogether abandoned, aijd the claim depending entirely on the exercise of the prerogative,, during a period insuflficient to constitute a prescriptive right, it seems by no means clear that the patent could be sustained in a couit of law. There are conflicting authorities on the subject; and the only instances in which the prerogative has been apparently upheld, were on occasions of disputed title between rival patentees, neither of whom were competent to moot the general question upon the footing of the public interest. Upon an application for an injunction ag%inst printing an edition pf the Bible in numbers, with prints and notes. Lord Clare, the Chancellor of Ireland, aske4 if the validity of the patent had ever been established af law ? and said, he did not know that the Crown had a right to grant a monopoly of that kind. In the course of the discussion he made the, following observations. " 1 can conceive that the King, as the Head of the Church, may say- that there'shall be but one man who shall print Bibles and Books of Common Prayerforthe use of churches and other particular purposes j but I cannot conceive that the King has any prerogative to grant a monopoly as to Bibles for the instruction of mankind in the revealed religipn ; if he had, it. would he in the power of the patentee to put what price he pleased upon the book, and thus prevent the instruction of men in the Christian religion.'* " If ever there was a time which called aloud for the dissemination of religious knowledge, it is this j and, therefore,,! should with great reluctance, decide In favor of such a monopoly ais this, which must necessarily confine the circulation of the book." "As to Very particular purposes, I have no doubt that the patentee has an exclusive rightto priiit Bibles and Prayer Books; but unless I am bound down very strictly, I will not determine upon -''"■■'■ .. i- : y -(-1) 4 Burr. 2405. (2J 2 Coram. 410. 108 SPECIAL OR PREROGATIVE COPYRIGHT. motion that no man but the King's printer has a right to print such works as these." " In giving judgment he saidj that the case which had been mentioned seemed to intimate that it never had been solemnly decided how far the prerogative extends to give a sole and exclusive right of printing Bibles. Many of the old cases upon the subject were deter- mined upon the pririciple of the Licencing Act;" and the motion was refvtsed('). A contrary decision, however, was pronounced some years afterwards in the case of the Universities of Oxford and Cambridge v. Richardson('), in which an injunction against the King's printer in Scotland (who had a patent for the sale of Bibles) was granted, restraining him from printing or selling them in England. This took place on an interlocutory motion before the hearing of the cause, on the ground that possession, under color of title, was suiScient to warrant the injunction, until it was proved at law that there was no real title. In the course of the case it appeared that in the year 1718, Sir Joseph JekyU, as Master of the Rolls, had granted an injunction in a similar case, which was supported upon appeal before the Lord Chancellor ; and also that a decree of the Court of Session had, in the year 1717, been reversed by the House of Lords in favor of the King's printer in England, confining the right of the Scotch printer to Scotland. In this case, also, it is evident that the general principle could not be investigated between patentees who derived their title, if valid, from the same source. Of the Bible in the Original Languages, and portions of the English Translation. Neither the Hebrew Bible, the Greek Testament, nor the Septuagint, belong to the King. Lord Mansfield (as before referred to) pronounced them to be unquestionably in common ; and added, that if any man should turn the Psalms, or the writings of Solomon or Job, into verse, the King could not stop the printing or the sale of such a work. It would be the author's work. " The King has no power or control over the subject matter — his power rests in property." Neither has any attempt ever been made to prevent any person from publishing a translation of one book, or of a part of the Bible, from the original text, and enjoying a copyright in his production(')., (1) (^rierson v. Jackson, Ridgway's Rep. 304. S Evans's Stat. 6S0. (2) 6 Vesey, 689. (3) Godson on Copyright, 325. COMMON PEAYEES. 109 2nd. Of the Common Prayer Book, Sfc. Upon the same principle as Head of the Church, the King has a right to the exclusive publication of Liturgical and other books of divine service. In ^re and Strahan v. Carnan, which was decided in the Court of Exchequer, a bill was filed to restrain the defendant from publishing a foi-m of ■prayer, which had been ordered by His Majesty to be read in all churches. The plaintiffs were the Kiflg's printers. The grant which was read, imported to be a grant of the office of printer to His Majesty, jand his successors, o'f (amongst other things) all Bibles and Testaments in the English language ; and of all Books of Common Prayer, and Adminis- trations of the Sacraments, and other Rites and Ceremonies of the Church of England ; in all volumes whatsoever heretofore printed by the King's printer, or to be printed by his com- mand ; and of all other books which he, his heirs or successors, should order to be used for the service of God in the Church of England. The bill stated, that in December, 1779, a form of prayer was ordered by His Majesty to be used in all Churches and Chapels throughout England and Wales, upon the 4th of February, 1780 ; that .it was printed by the plaintiffs, and a sufficient number thereof circulated for sale at sixpence each, which was a reasonable price, and at which l^ey had been formerly sold; that the defendant had printed and sold a great number of them. The court -held that the grant was founded on public convenience, was supported by long usage, and the injunction was accordingly continued('). SECTION IV. Of ■publishing Proceedings in Parliament and Courts of Justice. \st. Of Parliamentary Proceedings. Both Houses of Parliament consider a publication of their proceedings as a breach of privilege. By sufferance, howeve^, the reports of the debates are allowed to appear in the diurnal and other periodical works. Not only the speeches of the members, but copies of documentis, printed at the direction of either House, are thus circulated for the information of the (1) E. T. 1781. 5 Bac. Ab. 597. 110 PUBLISHING PARLIAMENTARY PROCEEDINGS. public ; and it seems that the Courts of Justice will not inter- fere to restrain such publicationsj even when the matter com- prised in them is libellous, provided it be a true account of the proceedings(')- Thus the same reasons which justify the publication of judicial proceedings, were held to warrant those of the senate. It is, said Mr. Justice Lawrence, of advantage to the public, and even to the legislative bodies, that true accounts of their proceed- ings should be generally circulated ; and they would be deprived of that advantage if no person could publish the proceedings without being punished as a libeller. Though the defendant in the case before the court was not authorized by the House of Commons to publish this report in question,'yet as he only published a true copy of it, the rule for a criminal information was discharged ("). 2Hd. Of Judicial Proceedings. The House of Lords, in its judicial capacity, exercises an exclusive privilege in publishing its own proceedings as the supreme court of jiidicature. The course usually adopted by the House is to direct the Lord Chancellor to cause the pub- lication of the proceedings, and to prohibit all other persons. Lord Bathcrst, in a case of Bathurst v. Kearsley, ^ granted an injunction in favor of the printer under his authority, of the trial of the Duchess of Kingston('). ■ Lord Erskine, upon the precedent of the last decision, ordered an injunction, until the hearing in the case of Gurney v. Longman; with respect to the trial of Lord Melville j at the same Jiioie intimating, that unless he had a strong impression that at the hearing he should continue of the same opinion, and should grant a perpetiial injunction, he would not then grant an injunction('). But on the day of his quitting . office as, L^ord. Chancellor, he desired that he should be understood that he had not delivered any judgment, further than by granting the injunction until the hearing upon the precedent of the former case of Bathurst v. Kearsley, and should therefore consider the question as open in any future stage. A demurrer was afterwards put in, but was never argued, a compro- mise taking place. In the Court of Common Pleas, in the time of C. J. Eyre, an action was brought by Cwme agajnst fValter, the proprietor of "The Times," for publishing a supposed libel, which consisted in merely stating a speech made by a counsel on a motion for leave to file a criminal information. ' The Chief Justice, who tried the cause, ruled, that this was not a libel, nor the subject' of an action, it being a true account of what had passed in court ; and in this opinion the Court of Common Pleas (1) 8 T. R. 296-7. Godson, 253, 341. But see 7 East, 503. (2) 8 T. R. 298. (3)' Cited 13 Vesey, 493. (4) 13 Vesey, 493. JUDICIAL PROCEEDINGS, 111 afterwardkj on a motion for a new tristl, all concurred, thotlgh some of the judges doubtfed whether or nbt the defendant doMd avail himsfelf of t^at defence on the geneM issUe. . In a subsequent case in the Court of King's Bench, Mr. Justice Lawrence entered somewhat fully into the question, and said, the proceedings of courts of justice are daily published, some of which highly reflect on individuals. Many of these proceedings conta^in no point of laWi and are not published under the authc>rity or the sanc- tion of the courts, but they are printed for the infornjation of the public, . ' Though the publicatiqh of such proceedings (he bontmued) ihay be to the disadvantage of the pai-ticUlai* individual concerned, yet it is of vast importance to the public that the proceedings of Courts of Justice should be uhiVefsaUy kncJwn. The general advantage to the country in having these proceedings made public, more than coun- terbalances the inconveniences to the privatp^ persgns whose conduct may be the subject of such proceedingsf ')• In a later case. Lord Ellenbobovgh and Mr. Justice Grose observed, that it must not be taken for granted that the publication of every matter which passes in a Court of Justice, however truly represented, is, under all circumstances, and with whatever motive publi'shedj justifiable ; but that doctrine must be taken with ^raiiis of alioWEince. It often happens^ said Lprd Ellenborough, that circumstances necessary for the, sake of public justice to be disclosed by a witness in a judicial -inquiry, are yery distressiiig to the feelings of individuals on whom they reflect : and if such; circumstances, were afterwards wan- tonly published, I shoiild hesitate- to. say that such unnecessary publi- cation was not libellous, merely because the matter had been given, in evidence in a Court of Justice^), It seems at all events clear, that the several Courts of Justice possess the power of restraining the publication of. a trial during its progress. Thus in the case of The King against Cl he had nothing to do with Ebbes. He had only to shew that Sherwood was not entitled to the book. Ebbes might have learned all that it contained from Ms prac^ tice as a clerk. Sherwood's observations were not original. Three parts of the book consisted of rules and orders. There was also a book on the same subject by Mr. Ellis, in which he had no doubt he should find the source of most of Sherwood's observations. Sherwood had allowed twenty months to elapse before he applied for the injunction. Mr. HoRNE said, Stephens had published the book on condition that Ebbes should reeeive half the profits. The Lord CHANCEa^LoK. If that fact had been stated in the case where Stephens, Ebbes, and Butterworth were concerned, there would have been no ground for the injunction. When the motion for art injunction against Mr. Butterworth was made, it stated that Stephens gave Ebbes seventy pounds for the Copyright of the work, and he therefore thought that there could never be a clearer case in which an injunction might be granted. The fact, however, that Ebbes was to divide the profits with Stephens, introduced an entirely new feature into the case ; and although during the present motion he was strongly impressed with the idea, that by permitting twenty months to expire, the plaintiff had abandoned his right, yet he was so impressed under the supposition that the work had been purchased by Stephens. All objections, however, were removed by the proof of this compact respecting the work between Ebbes and Stephens. The injunction must be granted. (i) 2 Barn, and Aid, 298. 140 , PIRATING COPYEIGHT. SECTION II. Of the Manuscripts of Deceased Persons. The manuscripts -of the deceased seem in some respedti to be placed on a different footing from the manuscripts of the living. The distinction has been pointed out by Sir William D. Evans. During the life of a writer, the publication (he observes) maybe deemed a, personaliryury : but after his death, several material questions may arise with respect to the claim of his representatives. It is taken for granted in Millar v. Taylor, that the injunctions were founded upon clear property. Now an executor can only bring an action on the case for some damage which reduces the assets, and to the extent of which assets he is accountable. But the right to prevent any per- son having a manuscript of the deceased, from publishing it,, is no " property," which can constitute part of the assets, in respect of which alone he represents tlie deceased. The same observation will in some degree apply to the heir. Besides which, this kind of property is nowise analogous to any hereditament recognized by the law. The interpositions appear' to be on behalf of the family of the writer. But it seems a legal anomaly to take notice of the family of a deceased person in any other manner than as connected with the property which constitutes real or personal assets. The Court of Chancery, however, exercises its authority in restraining the publication of manuscripts of persons deceased. In the case of the Duke of Queensbury v. Shebbeare, before Lord Hardwicke('), an injunction was granted against printing the second part of Lord Clarendon's History. Lord Clarendon, it was stated, let Mr. Francis Gwynn have a copy of his history. His son and representative insisted he had a right to print and publish it. The court was of opinion that Mr. Francis Gwynn might have every use of itj except the. profit of multiplying in print. It was to be presumed (as Mr. Justice Willes observed) that Lord Clarendon never intended that extent of permission when he gave him the copy. The injunction was acquiesced under, and Dr. Sheb- beare recovered before Lord Mansfield a large sum against Mr. Gwynn for representing that he had a right to print. Mr. Justice Wii-les adduces this case as an argument for the general right of literary pro- perty, in which he is followed by Lord Mansfield, who observes, that Mr. Gwynn was entitled undoubtedly to the paper of the transcript of Lord Clarendon's History, which gave him the power to print and publish it after the fire at Petersham, which destroyed one original. That copy might have been the only manuscript of it in being. Mr. Gwynn (1) Cited in Millar v. Taylor, 4 Burr. 2330. MSS. OF DECEASED PERSONS — PEIVATE LETTERS. 141 might have thrown it jnto.the fire had he pleased. But at the distance of near a hundred years, the copy was adjudged the property of Lord Clarendon's representatives, and Mr. Gwynn's printing and publishing it without their consent, was adjudged an injury to that property, for which, in different shapes, he paid very dear('). SECTION I,IIi Of Private Letters, Literary and General. There is a material distinction between literary and general letters — the former being protected as the subject of copyright, whilst the publication of the latter is restrained on the ground only of breach of contract or confidence, or when they tend to the injury of private character, or are calculated to wound private feelings. The earliest case on this subject is that of Pope v. Curl (in 1741), in which a motion was made to dissolve an injunc- tion obtained by Mr. Pope against the bookseller, for vending a book called " Letters from Swift, Pope, and others." Lord Hakdwicke. I think itwould be extremely mischievous to make a distinction between a book of letters, which comes out into the world either by the permission of the' writer or receiver of them, and any other learned work. The same objection may hold against sermons^ which the author may never intend should be published, but are collected from loose papers, and brought out after his death. It has been objected, that where a man writes a letter, it is in the nature of a. gift to the receiver. r But I am of opinion it is only a special property in the receiver ; possibly the property in the paper may belong to, him ; but this does not give a licence to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer. It has also been insisted on, that this is a sort of work which does not come within the meaning of the Act of Parliament, because it contains only letters on familiar subjects, and inquiries after the health.of friends, and cannot properly be called a learned work. But it is certain that no works have done more service to man- kind, than those which have appeared in, this shape upon familiar subjects, and which perhaps were never intended to be published; and it is this makes them so valuable, for I must, confess for my own part, that letters which are very elaborately, written, and originaUy intended for the press, are generally the most , insignificant, and very little worth any person's reading. The injunction, however, was continued by the Lord (1) Millar v. Taylor, per Lord Mansfield. 142 PIRATING COPYRIGHT. Chancellor only as to those letters which are upder Mr. Pope s name in the book, and whicji are writteU hy Mm, and not as to those which are written tohiwC). In the case of I^d Ch^efjii^ld's tetters, m injunction was obtained till the hearing by his Lordship's executors against the widow of Mr.-Stanhope. Lord Apsley, according to the report, recommended it to the executors to permit'the pubTiiatioili in case they saw no objection to the work upon leading it, and having copies delivered to themC) . It is said, that by the register's hook it does not appear that an injunction was actually granted('). It i? well known that the publication did appear, but whettier upon the judgment of the executors, that they saw no objection to the work, or iipon what oth€y ground, we are not informed. In the case of the Earl of Granard y. Dunlein(0, the executors of Lady Tyrawley obtained an injunction in the first instance agaiijst the defendant publishing Letters to Lady Tyrawhy from different correspondents, and which he had got piossession of by being permitted to reside in her house, and continuing to do so after her death. Another case or private letters was heard by the Lord Chancellor in private, in which an injunction was granted, restraining the publication of Letters froyn an Old Lady, of a nature that made it very important to prevent the publication ; but the defendant in that case, as stated by the Fice Chan- cellor in his judgment, had received a sum of money not to publish the letters, and the attempt to publish them was therefore a violation of contrMcti^). In the case of the late Dr. Paky, who left certain manuseripts to be given to his ow^n parishioners only, a bookseller, haying obtained possession of thenj, was re- strained from publishing(*). But this principle does not extend to letters which are not of a literary kind- Thus in the case of Lord and Lady Percival v. Phipps land Mitford, it was seated by the biH, that Lady Percival had written to the dfifejodawt Mitford several letters of a privaite nature, upon the confi/dence that he would »ot part withjfchem, or communicate the contents to any person, nor publish, or permit>them to be published ; — ^that Mitford had communicated them to Phipps, who had published one, and announced an intention to publish others, and on these facts an injunction was prayed. On the other hand, Phipps by his answer stated, that Mitford was confidentially employed by (1) 2 Atk. 342. (2) Ambler, '737. (3) 2 Ves. and B. 21. (4) 1 Ball and B. 207. (5) V. Eaton, 13th April, 1813. 1 Ves. and B. 27. (6) Cited 2 Ves. and B. S3. PRIVATE LETTERS. 143 Lady Percival to publish authentic information relative to a subject vrhich very much engaged the public attention,— that Phijjps desired Mitford to offer his newspaper as 3, channel for communicating such information. This offer, it was alleged, was accepted, and the letter iji question delivered to the defendant for publication, and vaiious paragfaphs were also delivered from time to time for th« same purpose. Subsequently, a statement was inserted in the News, (which was the title of the paper) conveying intelligence as commu^ nicated by Lady Percival, which it appeared was false, and which was disavowed by her. The letters in q uestion were written to Mitford upon similar subjects, materially tending to shew that the intelligence did come from Lady Percival, and that as she had denied being privy to the former publi- cation, the character of Phipps, and the value of his paper, were in danger of falling into discredit with the public. The Vice Chancelloe. — An injunction, restraining the publication of private letters, must stand upon this foundation, that letters, whether of a private nature, or Uipon general subjects, may be considered as the subject of literary pro- perty; and it is difficult to conceive in the abstract, that they may not be so. A very instructive and useful work may be put into that shape, as an inviting mode of publication. Admitting, however, that private letters may have the character of literary composition, the application of that as an universal rule, extending to every letter which any person writes upon any subject, appears to me to go a great way ; including all mercantile letters, all letters passing between individuals, not only upon business, but on every subject that can ocpur in the intercourse of private life. If in every such instance the publication may upon this doctrine be restrained, as a violation of literary property, whatever may he the intention, the effect must frequently be to deprive an individual of his defence by proving agency, orders for goods, the truth of his assertion, or -any other fact, in the proof of which, letters may form the chief ingredient. *' This is the naked case of a bill to prevent the publication of private letters, not stating the nature, subjeet> or occasion of therh, or that they were intended to be sold as a literary work for profit, or are of any value to the plaintiff. Upon such a case, it is not necessary to determine the general question, how far a Court of Equity will inter- fere to protect the interest of the author of private letters. The interposition of the court in this instance is not a consequence fr0|m the cases that were cited ; upon which I shall merely observe, that though the form of familiar letters might not prevent their approaching the character of a literary work, every private letter upon any subject to any person, is not to be described as a literary work, to be protected upon the principle of copyright. The ordinary use of correspondence 144 PIRATING COPYRIGHT. by letters, is to carry on the intercourse of life between persons at a distance from each other, in the prosecution of commercial or other business, which it would be very extraordinary to describe as a literary work, in which the writers have a copyright. Another class is the correspondence between friends or relations upon their private concerns, and it is not necessary here to determine how far such letters, falling into the hands, of executors, assignees of bankrupts, &c. could be made public in a way that must frequently be very injurious to the feelings of individuals. I do not mean to say that would afford a ground for a Court of Equity to interpose to prevent a breach of that sort of confidence, independent of contract and property." ■ Although there may be a joint property in letters of correspondence between the sender and receiver, it does not seem by any means necessarily to follow that one of several joint owners in a literary composition may not exercise the right of publication. Supposing different persons to be possessed of manuscript copies of a given composition, in which no other has a paramount claim to restrain the pub- lication, it cannot be supposed that any of them individually could prevent the publication by the athers(-'). SECTION IV. Of Written Lectures. The means of diffusing knowledge, and^ the, modes of instruction, vary at different periods of society. Itis observable ithat of late years the custom has increased of communicating information by public lectures, and it seems fitting, therefore, in a work devoted to the examination of the laws relating to the protection of the fruits of intellectual labor, that a proportionate degree of attention should be paid to. the questions which may arise out of the respective rights of lectui'ers and pupils, as well as the public, generally. We shall, therefore, avail ourselves of the elaborate judgments which from time to time were delivered by the late Loed Chancellok in the celebrated litigation between Mr. Aber- nethy, and the proprietors of The Lancet, in which all the questions suggested at that time were minutely and fully considered, and which his lordship enumerated as follow : The first question is, whether an oral lecture is within the pro- tection of the law ? Now, as far as my recollection goes, that, has not yet been the subject of determination. On the other hand, if the^e be a lecture apparently oral, but which is nevertheless delivered by. the assistance of a very good memory from a written composition,. (1) 2 Evans's Coll. Stat. 625. WKJTTEN LECTURES.. .145 the question then will be, if it could not be made out in point of law that an oral lecture or an oral sermon was within the protection of the law, whether protection is due to the written composition } Another question will be, whether this court would interfere before notice had been given that that apparently oral lecture was the delivery of matter from a written composition ? And a farther question will be> whether if the oral lecture is to be protected by the fact that it is, in truth, the delivwy of a written composition, it does not- lie on those who insist that that circumstance gives the protection of the law to that which appears to be orally delivered, to produce and shew that written com- position, in order to make out their case. We shall take the liberty of separating the luminous judgment of his lordship into two parts— the 1st, on the copyright in lectures which were either read from a written composition, or delivered from the recollection of it ; the 2nd, on the copyright in lectures orallif delivered, of which no manuscript existed. First, then, of written lectures. Where the court is called upon to restrain a publication on the ground that it is a piracy of a composition which has been substantially reduced into writing, it is the duty of the court to see that the plaintiff produces his written composition. The Lord Cbangelloh. — The very early part of this case turned entirely upon the question of property ; and indeed it can be viewed only in two ways — either as a question of property, or a question of trust. In the first place, I have nothing to do with all the consider- ations that have been pressed on me with respect to the benefit which the public may receive from the publication, even of such lectures as those which so distinguished a man as Mr. Abernethy might publish, or other persons might publish for him ; and in the next place, 1 have nothing to do with the moral question of how far the editor of this work has righteously possessed himself of the means of publishing it. When I say with the moral question, I mean to qualify the expression ; because if I can collect that those means have been obtained either by a breach of trust, or by fraud, this court will have something to do with it. In the present case, Mr. Solicitor General has viewed it, with respect to its connection with writing, in these two ways. He says, that Mr. Abernethy has a composition which one would call a copy or a writing, and which contains the whole of what this defendant has published. And then he says, if he have not such a copy, yet he delivered it as froin writings and, therefore, he must be understood as having some notes, which were to suggest to. him from time to time what sentiments to deliver orally to the persons who attended his lectures. Now with respect to either of those views of the case, I apprehend when this court is called on to enforce a legal right, by giving a remedy beyond that which the law gives, it is the bounden duty of this L 146 PIRATING COPYRIGHT. court, be the case what it may, to see that the plaintiff produce his written composition, and therefore, if this ease be to be put at all oh the ri^t which Mr. Abernethy is supposed to derive from his having a full and correct copy; there must be an original, or a writing which contains all that has been published in this book, or he must have a writing which is such in its nature as that, coupled with what he orally delivered, it may be taken that he has substantially a written composition as well as that which he delivered orally. When this court is called on to give a remedy beyond the rea3€dy which the law gives to persons who have a legal right, the court must know what it is proceeding on ; and if the case be put on this ground, either that there is a writing of one character or a writing of another character, that writing must he produced, so that the court may know what it is doing. If that writing be not produced, I must then look at the motion as an application made to me merely on the ground of an oral publication j and then the question of property will arise, coupled as it may be with the doctrine of trust and wdth the doctrine of fraud^'). It is said that Mr. Abernethy is not to be looked on as holding the same character with reference to a subject of this kind as a cler- gyman of the church, or a professor in a University ; for as I understand the affidavit which has been filed on the part of the defendant, Mr. Abernethy is represented, not only as a surgeon, but as a person appointed by the governors and guardians of this hospital to give lectures :— " and this deponent saith" (such is the language of the affidavit) " that the surgeons and lecturers for the time being of such hospital, are appointed by the governors of the said hospital." Now if a professor be appointed, he is appointed for the purpose of giving information to all the students who attend him, and it is his duty to do that ; but I have never yet heard that any body could publish his lectures ; nor can I conceive on what ground Sir William Blackstone had the copyright in his lectures for twenty years, if there had been such a right as that ; we used to take notes at his lectures ; at Sir Robert Chambers's lectures also the students used to take notes ; but it never was understood that those lectures could be published ;— and so with respect to any other lectures in the University, it was the duty of certain persons to give those lectures ; but it never was^ understood, that the lectures were capable of being published by any of the persons who heard them(°). SECTION V, Of Oral Lectures. An injunction will not be granted to restrain an alleged piracy of lectures delivered orally, when no written compo- sition substantially the same with these lectures is produced. (1) On these points see the next section. (.2) 3 Law Journal, 209. ORAL LECTUKES. 147 But persons attending ah oral lecture have no right to publish it for profit. An action upon the iknplied contract will lie against a pupil attending an oral lecture, who caused it to be published for profit. T^he court will grant an injunction against third persons publishing lectures orally delivered, who liiust have procured the means of publishing those lectures from persons who attended the oral delivery of them, and were bound bjr the itnplied contract('). The Lord CHANCELLbft, in delivering his judgnifent in the case in which the preceding doctrine was held, com- menced his observations as follows : With regard to the question of litetdry property, I have no right to interfere by injunction, unless I helve a very strong dpiniDii that the legal right is with the plaintiff. Ndw looking at all that hafe passed with respect to literary pfopertjr, and particularly with respect to the case of Millar v. Taylor ^ which was first before the Court of King's Bench, and afterwards before the House of Lords (though there was a vast deal of argument on the c[uestion elf what sbrtof property a man may have in his unpublished idea^ or sentinients, or the language which he uses), ye;t I do not recollect in the course of thbse pro- ceedings (particularly in the House Of LOrds) that aiiy qUestioU Was put to the judges that did not adapt itself to the case of a book or a literary composition ; for of the tjuestiohs which were there put to the judges, the firJst was, " whether at common law an adthor of any book or hterary composition had the sole right of first printing and pub- lishing the same for- sale, and might bring an action against any person who printed, published, and sold the same without his consent?" The next question was, " if the author had such a right originally, did the law take it away upon his printing and publishing sudh book or literary composition, and might any person afterwards reprint and sell for his own benefit such bbbk Or literary composition against the will of the author ?" The third question was, " if Such an action would have lain at cotnmon law, was it taken away by the statute of Anne, and was an author by that statute precluded from any remedy except On the foundation of the statute, and on the terms and condi- tions prescribed thereby ?" On these questions the judges of the land differed. Oh the firSt question, one of them was of opinion that at common law an authof- of any book or literary composition had not the sole right of first printing and publishing the same for sale, and that he Could not bring, an action against any person who printed, published, ahd sold the same, unless such persoti had obtained the copyright by fraud or by violence. So that although this judge was Of Opinion that at laW the axkhor was not the party who had the sole right of fjrst printing (1) Abernethy v. Hutctiisoh, Knig^it anil Lacey. L 2 148 PIRATING COPYRIGHT. and publishing a composition for sale, yet he was also of opinion, that to give him a right of action against those who first printed and published the same for sale, it was necessary to shew, in order to maintain an action, that the person who had first printed and published had gotten it either by violence or fraud. Now if, said his Lordship, it can be made out, as matter of con- tract between Mr. Abernethy and those who attend his lectures, that they should not be at liberty to print or publish the same, I should say then, that supposing notes of all that he delivered in his lectures to be taken, and supposing it to be a proper thing for the use of the students that that should be done, yet I never would permit a third person to make use of the delivery of those notes to that third person, for the purpose of doing that which the person delivering those notes would not himself be permitted to do. I should call that, in the sense in which a court of equity uses the word, a gross fraud. If this injijnction be applied for, not on what was done in Millar V. Taylor, but on the reasoning to be found in that case, -it becomes a judge in equity to look about him before he ventures to decide the legal question. That legal question, in the shape in which it is now put, namely, with respect to an oral delivery of ideas and sentiments, has occasioned much abstruse learning ; and as in the case which I have alluded to, the judges of the land in the first instance, and the House of Lords in the last instance, avoided giving any opinion upon it when it was discussed ; certainly it becomes me to know what opinion a court of law vyould give in such a case as this, before I grant the injunction in unqualified terms. There is another difficulty which belongs to a case of this kind, even supposing that there is the right which is contended for — I mean the difficulty there must be nine times out of ten in sustaining an action for want of proof; for if a lecture be published which has been delivered orally, and that can form the subject of an action, how is it possible, unless the court is to be satisfied with something like the substance of what was said, to prove that the printed publication was parcel of the oral publication. In this case, however, there is no diffi- culty on that point, which is another reason perhaps that ought to induce-the court to be a little cautious in what determination it comes to. Because this editor has, in the mos^djstinct manner, admitted in his publication — and what is admitted in his publication must be taken in this court to be true against himself— he has admitted in. the pub- lication that what he has published was orally delivered by Mr. Aber- nethy. The difficulty of proof, therefore, to which I have alluded, is not found to exist in this case. At the same time it is one thing to contend that it has not been established that a person who orally delivers lectures, has that species of property in them which may enable him to bring an action, and after having succeeded in the action, to apply for an injunction here, either with or without an account to be kept in the mean time of the profits of the work; and It is another thing to say, that a person who has possessed himself of the means of publishing what another has delivered in lectures, which are afterwards to be put into writing, and which ORAL LKCTURES. 149 the author (if I may so call him) may, or may not mean to publish, has himself the copyright of what he does so publish. That it may not be supposed I sanction that doctrine, I beg to have it understood, that I do not give any such opinion. On the other hand, if the editor of the Lancet be not only himself at liberty to publish 5000 copies of this work, but 5000 other persons (notwithstanding his pretence of having the copyright of this publica- tion called the Lancet) may likewise publish the work, that would go directly to destroy the value of any property which Mr. Abernethy may have in the subject. These are all the views of the case, as far as they go to the question of literary 'property. With respect to the question of trust, a good deal of that must depend, not only on the nature of these lectures, and so on, and the rights and obligations abstractedly considered which those persons are under to whom they were delivered ; but it must depend also (indeed very materially) on the affidavits that have been actually filed. On a subseqilent day, Mr. Abernethy made an additional affidavit, stating, " that he has given his lectures as most lecturers do, orally, and not from a written composition ; but that previously to the delivery of such lectures, he had from time to time committed to writing notes of such, his said lectures, which have been increased and transposed until a great mass of writing has been collected, written in as succinct a manner as possible, with a view to exhibit the arrangement he has formed, and the facts he has collected together, with his opinions relative to certain subjects of surgery: that a considerable portion of such notes have been by, or under the direction of this deponent extended and put into writing, with a view to publication, which writings he is ready to sub-, mit to the inspection of any respectable and competent person, as a test of this deponent's accuracy in the statement made to the court in his former affidavit, and that such writings are in his possession; that at the time of delivering his said lectui'es, he did not read or refer to any writing before him, but that he delivers such, his lectures, orally, and from recol- lection of such notes and writings, and that the lectures so delivered by him, though not verbatim the same as his notes and writings, yet are in substance, arrangement, and statement of the facts substantially the same : that such lectures vary from time to time both in the language and arrangement according to circumstances, and from any new matter that may have occurred to him, by way of illustration or otherwise : that on a comparison of the written notes or lectures with those so orally delivered by him, they will, and must necessarily vary, and in like manner they will be found to vary from the lectures pirated, or alleged to be pirated, by the defendants in the publication 150 PIRATING COPYKIGHT. ca,Ued th,e Lancet : that the composition of the said lectures so reduced into writing have cost him much time and study for a long series of years : that his duties as a surgeon to St. Bartholomew's Hospital and lecturer are entirely distinct, and that it is not a part of his duty as such sm'geon to deliver lectures, but that the same are in the nature of private lectures, and are not attended by any persons unless by his permission, and are not in any way open or accessible to the public." The case was again argued. The Lord Chancellob. If Mr. Aber;nethy had produced in court the writings froin which he says his lectures were really delivered, so that I might myself have exercised a judicial opinion upon those writings, and ha,ve seen that his lectures, though orally delivered, were delivered from what I should say was a literary composition, I should have had np difficulty iu the case. If oti the other hand in comparing what is said to have been orally delivered, anid what has got into this hook called the Lancet, with the notes, I could not accurately have referred the publication to those notes as being the same. — (I mean with those trifling literary distinctions which must exist in such cases.) I should then have known what to have done, by not applying myself to any thing but a reference to authorities. But I apprehend, that if those notes are not produced and made, (substantially made,) part of the case before me, the court has but two ways of proceeding left to it :— the court must either refer it to the master, to enquire whether what is admitted to have been published in this book is the same as the notes, or it must decide the case by calling upon the lecturer to deliver the notes to the court itself, that the court may see whether they are the same. And it may be very inconvenient to produce those notes ; so much so, that I should not be surprised if a gentleman such as Mr. Abernethy would rather suffer himself to go out of this court without a judgment, than produce the notes. But if he had gone to the master, which ivould have been the more private way, the master must have reported to me, and if there had been an exception taken to his report, there must afterwards have been a public production in this court. The consequence of all this is, that 1 am compelled to look at the present case as that of a lecture delivered orally. In Millar and Taylor, there is a great deal said with respect to a person having a property in s ;ntiments and language, though not deposited on paper } but there hao been no decision upon that point ; and as it is a pure question of law, I think it would be going farther than a judge in equity should go, to say upon that, that he can grant an injunction upon it, before the point is tried. There is another groiind for an injunction, which is a ground arising out of an implied contract. I should be very sorry if I thought that anything which has fallen from me should be considered to go to the length of this — that persons who attend lectures or sermons, and take nptes, are to be at liberty to carry into print those notes for their own profit, or for the profit of others. I have very little difficulty on that point. But that doctrine must apply either to contract or breach of ORAL LECTURES. 151 triist. Now with respect to contraet, it is quite competent for Mr. Abernethy, and for every other lecturer^ to protect himself, in future, against what is complained of here. There is a contract expressed and a contract implied ; and I should be very sorry to have any man understand that this court would not act as well upon a contract im* plied, as upon a contract expressed, provided only the circumstances of the cause authorize the court to act upon it. I have not the slightest difficulty in my own mind that a lecturer may say to those who hear him, "you are' entitled to take notes for your own use, and to use them perhaps iji every way except for the purpose of printing them for profit ; you are not to buy lectures to sell again : you conie here to hear them for your own use, and for your own use you may take notes." In the case oS Lord Clarendori's work, the history was lent to a person, and an application was made for an injunction to stuy the publication; it was said there, that there was no ground for the injunction ; and it was proved on affidavit that my Lord Clarendon's son said-, " there is the book, and make what use you please of it ;" the Chancellory however, of that day said, that he could not mean he was to print it for his profit. So with respect to letters, my Lord Hardwicke says in one case, that the person who parts vvith letters, still retains a species of property in them ; and that the person who receives them, has also a species of property in them. He may do what he pleases with the paperi he may make what use he pleases of the letters, except print them. There he puts his jurisdiction on the ground' of property. In other cases we find it put upon the ground of breach of a trust'— thai, the letter is property, part of which I have retained, and part I have given tq you ; you may make what use of the special) property you have in it yoii please, but you shall not make use of my interest- in it ; therefore you shall not print it for profit. Now if there be an express contract-— for instance> if Mr. Abernethy say " Gentlemen, all of you who attend and pay five guineas for attending my lectures, may take notes of what I say, but let it be understood, that you shall not print for profit;" then in that case I should not have the least difficulty in saying, if any studpnt afterwards did think proper to publish for profit, that there is hardly a term which this court would think too harsh for him, and it would restrain him. There is another ground, which is, whether, looking at the general nature of the subject, it is not very difficult to say, that there is not a contract which would call upon the court to restrain the parties who hear the lectures, from publishing the notes they may have taken. They may make whatever use of them they please, but they ought not to publish them,. If an express contract exists, or if any contract is to be implied, either contract would be the ground of an action for a breach of contract. With respect to trust, the question here would be, whether there is not an implied trust with respect to the student himself? One thing }s quite clear, that if those lectures have been published from short-hand writer's notes, they have been published from short hand writer's notes taken by some student, or from short handi writer's notes taken by some intruder into the lecture room ; for I do not see how it is possible that they could have been taken otherwise. If there 152 PIRATING COPYRIGHT. is either an implied contract on the part of a student, or ''^ '™s'' *"d if you can make out that the student has published, I should not hesitate to grant the injunction. With respect to the stranger, if this court is not to be told (and certainly it has no right to compel the parties to tell) whether the power of giving the oral lectures to the public was derived from a student or not, I think it very difficult to tell me that that should not be restrained which is stolen, if you would restrain that which is a breach of contract or of trust. Upon the whole, taking this case as it now stands as a case simply of oral lectures, it must be tried whether it is legal to publish them or not. Upon the question of property in language and sentiments, not put into writing, 1 give no opinion, but only say that it is a question of mighty importance. At present, therefore, I must refuse the injunc- tion : but I give leave to make this very motion on the ground of breach of contract or of trust. Afterwards the bill was amended by the introduction of allegations, that no persons had a right to attend the lectures, except those who were admitted to that privelege by the lecturer: that it had always been understood by him, and those who preceded him in the office, and those who attended the lectures, that the persons who so attended did not acquire, and were not to acquire, any right of publishing the lectures which they heard : but that the plaintiff and his predecessors respectively had and retained the sole and exclusive right of printing and publishing their respective lectures, for his and their own respective benefit : that there was an implied con- tract between the plaintiff and those who attended his lectures, that none of themi should publish his lectures, or. any part thereof: that the defendants had been furnished with the copy of the lectures which they had printed, through the medium of some person who had attended the lectures under Mr. Abernethy's above-mentioned permission ; and that it was a breach of contract or trust in such person so to furnish the copy, and in the defendants, to print and publish the same. These allegations being verified by the affidavit of the plaintiff, the subject underwent further discussion. Lord Chancellor. Without deciding the question of literary property in this case, but merely excluding it, the point to be deter- mined was, whether there was such a violation of contract as to sustain an action; if not, whether an injunction could be asked for. No evidence was given to shew — first, whether the defendants attended as pupils, or secondly, whether they received their report from a person guilty of a breach of trust; or thirdly, whether a shorthand writer not being a pupil, gave them a copy of the lectures. It was therefore a question, whether a stranger not bound by contract could be enjoined. Various considerations would arise out of this ; for a Court of Equity would be called upon to say, whether the means by which the defendants were enabled to publish the lectures, might, or ORAL LECTEEES, 153 might not, be used. One view of the case which ought not be lost sight of was, that supposing the lebtures to have been taken down by a pupil who- afterwards communicated them to the publishers, and you could not get at the pupil, you could not maintain an action. But in that case the publishers might come under the jurisdiction of the court, upon the ground of having made a fraudulent use of that which had been communicated to them, by one who had committed a breach of trust. The Lord Chancellor on a subsequent clay(') finally delivered his judgment. He stated, that where the lecture was orally delivered, it was difficult to say that an injunction could be grahted upon the same principle upon which literary composition was protected, because the court must be satisfied that the publication complained of was a n invasion of the written work ; and this could only be done by com- paring the composition with the piracy. But it did not follow that because the information communicated by the lecturer was not com- mitted to writing, but orally delivered, it was therefore within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion that whatever else might be done with it, the lecture could not be published for profit. He had the satisfaction now of knowing, and he did not possess that knowledge when this question was last considered, that this doctrine was not a novel one, and that this opinion was confirmed by that of some of the judges of the land. He was therefore clearly of opinion, that when persons were admitted as pupils or otherwise to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short hand, yet they could do that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling. There was no evidence before the court of the manner in which the defendants got possession of the lectures, but as they must have been taken from a pupil or otherwise, in such a way as the court would not permit, the injunction ought to go upon the ground of property and although there was not sufficient to establish an an implied contract as between the plaintiff and the defendants, yet it must be decided, that as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the court to say the defen- dants shall not publish. He had no doubt whatever that an action would lie against a pupil who published these lectures. How the gentlemen who had published them came by them he did not know ; but whether an action could be maintained against them or not, on the footing of implied contract, an injunction undoubtedly might be granted : because if there had been a breach of contract on the part of the pupil who heard these lectures, and if the pupil could not publish for profit, to do so would certainly be what this court would call a (1) June ir, 1825. 154 PIRATING COPYRIGHT. fraud in a third party. If these lectures had not been taken from a pupilj at least the defendants had obtained the means of publishing thenij and had become acquainted with the matter of the lectures in such a manner that this court would not allow of a publication. It by no means followed because an action could not to be maintained, that an, injunction ought not to be granted. One question had been, whether Mr. Abernethy, from the peculiar situation which he filled in the hospital, was precluded from publishing his own lectures for his profit ; but there was no evidence before the court that he had not such right. Therefore the defendants must be enjoined in future. The only question remaining was, whether the delay which has taken place in renewing the application, was a ground for saying that the injunction ought not to go to restrain the sale of such kctures as had been printed in the^interim. His Lordship's opinion was, that the injunction ought to go to that extent, and should include the lectures already published ('). CHAP. III. OF PIRATING COPYRIGHT IN DRAMATIC WOUKS. SECT. I. Of Unpublished Plays. Not only is the manuscript of a dramatic author protected by the law, like every other literary composition, but even after it has been represented on the stage, the poet still retains the exclusive right of printing and publishing it. In the case of Macklin v. RichardsmC), it appeared that the defendant had employed a short hand writer to take down the farce of Love a la Mode, upon its performance at the theatre and he inserted one act in a magazine ; and gave notice that the second act would be published in the maga- zine of the following month. Upon an application to Lord Camden for an injunc- tion, he directed the case to stand over until that of Millar and Taylor, which was then depending, should be determined, and after the determination, the injunction was, by the Lords Commissioners Smythe and Bathuest, made perpetual. Smythe)\u. C .B. said, it has been argued to be a publication by being acted, and therefore the printing is no injury to the plaintiff, but that is a mistake ; for besides the advantage of the performance, there is as much reason that he should be protected in that right as any other author. Bathurst. " The printing it before the author, is doing him a great injury." (1) 3 Law Journal, 209. (2) Arab. 695. DRAMATIC WORKS. 155 SECTION II. Of representing published Plays. Although a represented and wwpublished play is protected from piracy by printing, it seems that a diiFerent doctrine prevails in regard to the representation of published plays. Hence an action cannot be maintained for the penalties under the statute for representing on the stage the production of an author which had been previously printed and published : it being held that such representation is not a publishing within the intent of the act. Thus in Colman v. Wathen, an action was brought for the penalty under the statute 8th ^nne,, c. 19, for publishing an enter- tainment called th^ "Agreeable Surprise." The plainti|Fhad purchased the copyright from O^jLeeffe the author, and the only evidence of pub- lication by the defendant, was the representation of this piece upon his stage at Richmond. A verdict was given for the plaintiff with nominal damages, in order to raise the question, whether this mode of publica- tion were within the statUite(')? Ebskine contended that this was sufficient evidence for the jury to conclude that the woil^ had been pirated, for it could not be sup- posed that the performers could by any other means have exhibited so perfect a representation of the work. Besides, if this were npt held to be a publication withiji the statute, all dramatic works might be pirated with impunity, as this was the most valuable mode of profiting by them. Lord Kenvon, C. J. There is no evidence to support the action in this case. The statute for the protection of copyright only extends to prohibit the publication of the bpok itself by any other than the authpr, or his lawful as3ignees. It was so, held in, the great copyright case by the House of Lords. But here was no publication. BoLLER, J. Reporting any thing from meipory, can never be a publication within the statute. Some instances of strength of memory are very surprising, but the mere act of repeating such a performance, cannot be left as, evidence to the jury that the defendants had pirated the work itself. It is observable in this case that the party sought redress for the injury he had sustained, not by an action for damages, but for the penalties given hy the statute, and consequently he was bound by the express provisions it contained, which in a penal action were of course construed strictly. In a later instance (1822), that of Murray v. Elliston, the Lord Chancellor seijt a case for the opinion of the Court of King's Benph, in which the manager of a theatre had represented Lord Byron's tragedy of Marino Faliero, Doge of Venice (altered and abridged for the stage), without the (1) ST. R. 245. (1) June 17, 1825. 156 PIRATING COPYRIGHT. consent of the owner of the copyright, who had previously caused the tragedy to be printed and published. The Court of King's Bench certified its judgment in the usual form to the Lord Chancellor, without stating the reasons on which it was founded. It will be necessary, therefore, to introduce the arguments of counsel. Scarlett, for the plaintiff. This question is quite diiferent from that in Colman v. Wathen('). There it turned upon the words of the statute, 8 Anne, c. 19, and the point determined was, that the acting a piece on the stage was not a publication of it within that statute. Here the question is different, for it depends not on the statute, but on the right of property which the plaintiff has in this work. The moment such a right is established, the consequences must follow, that any injury done to the property is the subject of legal redress. This is only one mode in which it may be injured. Unfair and malicious criticism is another, and for that an action ■ti'ill lie(°). Suppose this play failed of success when represented, the sale of the work would thereby be damaged. Besides, the curiosity of the public would be thereby satisfied, and so the plaintiff would be injured in the sale of the work. Arid whether the right of property arise from the common law, or from the statutes relative to it, is in this case immaterial. For if the statute makes a literary work property,^the common law will give the remedy for the invasion of it. The only question is, whether the representation of this piece for profit, may not injure the copy- right ? If so, the plaintiff is entitled to the judgment of the court. Adolphus contra. In Donaldson v. Beckett^"), the majority of the judges were of opinion that the action at common law was taken awayby Sth Anne, c. 19, and that the author was precluded from every remedy except on the statute, and on the terms and conditions prescribed thereby. The claim by the plaintiff on this occasion is at variance with this decision. For here he contends for a far more comprehensive security, and one co-existing with that given by the statute, and restraining the public in points of which the statute takes no notice. The case of Macklin «. Ilichardson{*) was very different. There the farce of Love 4 la Mode had never been published, and the defendant having employed a short hand writer to take it from the mouths of the actors, published it, and it was held that he could not do so. But when in Colman v. Wathen the converse of this was attempted, the court held that the action would not lie. This decision was plainly founded on the nature of copyright, the property in which is exactly the same as if but one book existed which the author per- mitted individuals to read on payment of a certain sum. The injury then which an author sustains by the violation of his copyright, is this j that a stranger without permission disposes of the use and possession of his book, and thereby receives the profit to which he the author is justly entitled. If then the book "be not in all reasonable strictness (1) See page 155 ante. (2) Carr v. Hood, 1 Camp. 355. (3) 4 Burr. 2408. (4) Page 154 ante. BNEEGISTERED BOOKS. 157 such as may be called the author's own book, as if it be a bona fide abridgment, the case of Gyles v. WilcoxQ) shews that the author has no remedy. Now in the present case a theatrical exhibition falls within tlie principle above laid down. Persons go thither not to read the .work or to hear it read, but to see the combined effect of poetry, scenery, and acting. Now of these three things, two are not produced by the author of the work, and the combined effect is just as much a new production, and even more so, than the printed abridgment of a work. There are many instances in which works published have thus, without permission of their authors, been brought upon the stage. The safe rule for the court to lay down is, that an author is only pro- tected from the piracy of his book itself, or some colorable alteration of it : and in that case the defendant is entitled to the judgment of the court. The COURT afterwards sent the following certificate : We have heard this case argued by counsel, and are of opinion, that an action cannot be maintained by the plaintiff against the defendant for publicly acting and representing the said tragedy, abridged in manner aforesaid, at the Theatre Royal Drury Lane, for profit(°). CHAP. IV. OF PIRATING UNREGISTERED BOOKS. Althoiigh the fifth section of the statute 64 Geo. III. «. 156, requires that all books should be entered at Stationers' Hall within certain times after their publication, it is expressly provided, at the close of that section, that no failure in making any such entry shall in any manner affect any copyright, but shall only subject the person making default to the penalty under the act. It may not be unimportant to state, that prior to this statute, the judges of the Court of King's Bench unanimously held that an action for damages might be maintained for pirating a work before the expiration of twenty-eight years from the first publication, although the work was not entered at Stationers' Hall, and although it was first published without the name of the author affixed(0. Lord Kbnyon. All arguments in support of the rights of learned men in their works, must ever Tie heard with great favor by men of liberal minds, to whom they are addressed. It is probably on that account that when the great question of literary property was discussed, some judges of enlightened understanding went the length of main- (1) 5 T. R. 245. ($) Q.uere whether an exact representation would be permitted ? . (3) Beckford v. Hood, 7 T. R. 620. 158 PIRATING COPYElfeT. taining, that the right of publication rested exclusively in the authors and those who claimed under them for all time ; but the other opinion finally prevailed, which established that the right was Confined to the times limited by the Act of Parliament. And that, I have no doubt, was the right decision. Then the question is, whether the right of property being vested in authors for certain periods, the common law remedy for a violation of it does not attach within the times limited by the Act of Parliament. Within those periods the act, says that the author "shall have the sole right &,nd liberty" of printing &c. Then the statute havihg vested that right in the author, the cotnriion law gives the remedy by action on the Case for the violation of it. Of this there could have been no doubt made, if the statute had Stopped there. But it has been argued, that as the statute in the same clause that creates the right, has prescribed a particular remedy, that and no other can be resorted to. And if such appeared to have been the intention of the legislature, I should have subscribed to it, however inadequate it might be thought. But their meaning in creating the penalties in the latter part of the clause in question, certainly was to give an accumulative remedy ; nothing could be more incomplete as a remedy than those penalties alone, for without dwelling upon, the incompetency of the sum, the right of action is 7iot given to the party grieved, but to any common informer. I cannot think that the legis- lature would act so inconsistently as to confer a right, and leave the party whose property was invaded without redress. But there was good reason for requiring an entry to be made at Stationers' Hall, which was to serve as a notice and warning to the public, that they might not ignorantly. incur the forfeitures or penalties before enacted against such as pirated the works of others ; but calling on a party who has injured the civil property of another for a remedy in damages, cannot properly fall under the description of a forfeiture or penalty. Some stress was attempted to be laid on the acts passed for preserving the property of engravers in their works in which a Special provision is made to meet such a case as the present and to give the same right of action as is here contended for. But it is well known that provisions of that kind are frequently inserted in Acts of Parliament pro tnajori cautel^, and no argument can be drawn from them to affect the con- struction of other Acts of Parliament. On the fair construction of this act, therefore, I think it vests the right of property in the authors of literary works for the times therein limited, and that consequently the common law remedy attaches if no other be specifically given by the act; and I cannot consider the action given to a common informer for the penalties which might be pre-occupied by another, as a remedy to the party grieved within the meaning lof the act. AsHURST, J. In the case alluded. to, of Donaldson v. Becket in the House of Lords, I vi'as one of those that thought that the invention of literary works was a foundation for aright of property, indepen- dently of the act of Qiieen Anne. But I Shall not enter ihto the discussion of that point now, as the question in the present case is much narrowed. And upon the construction of that act I entirely concur with my Lord, that the act having vested the right of property in the UNREGISTERED BOOKS. 159 author, there must be a remedy in order to preserve it. Now I can only consider the action for the penalties given to a common informer as an additional protection, but not intended by the legislature to oust the common law right to prosecute by action any person who infringes this species of property, which would otherwise necessarily attach upon the right of property so conferred. Where an Act of Parliament vests property in a party, the other consequences follow of course, unless the legislature make a special provision for the purpose, and that does not appear to me to have been intended in this case. I am the more inclined to adopt this instruction because, the supposed remedy is wholly inadeqate to the purpose. The penalties to be recovered may indeed operate as a punishment upon the offender, but they afford no redress to the injured party; the action is not given to him, but to any person who may get the start of him and sue first. It is no redress for the civil injury sustained by the author in the loss of his just profits. Grose, J. The principal question is, whether within the periods which the exclusive right of property is secured by the statute to the author, he may not sue the party who has invaded his right for damages up to the extent of the injury sustained, and of this I conceive there can be no doubt. In the great case of Millar v. Taylor, Mr; Justice Yates gave his opinion against the common law right contended for in authors, but he was decidedly of opinion that an exclusive right, of property was vested in them by the statute for the time limited therein. No words can be more expressive to that effect than those used by him. But it is to be observed, that the penalties given by the act attach only during the first fourteen years of the copyright, and during that time only is the offender liable for such penalties if he invade the author's right ; but he is liable during the whole period prescribed by the act to make good in an action for damages any civil injury to the author. If this construction were not to prevail during the last fourteen j'ears of the term, the author would be wholly without remedy for any invasion of his property. But there must be a remedy, otherwise it would be in vain to confer a right. I was at first struck with the consideration that six to five of the judges who delivered their opinions in the House of Lords in the case of Donaldson v. Beckett were of opinion, that the common law right of action was taken away by the statute of Anne ; but upon further view it appears that the amount of their opinions went only to establish that the common law right of action could not be exercised beyond the time limited by that statute. Lawrence, J. I entirely concur with the opinions delivered by my brethren upon the principal point, and the case of Tonson v. Collins(',) is an additional authority in support of it ; for there Lord Mansfield said, that it had been always holden that the entry in Stationers' Hall was only necessary to enable the party to bring his action for the penalty, but that the property was given absolutely to the author, at least during the term. (1) 1 Black. Rep. Ssb. 160 PIRATING COPYRIGHT. CHAP. V. OP PIRATING THE COPYRIGHT IN ENGRAVINGS, ETCHINGS, PRINTS, MAPS, CHARTS, AND FLANS, SECT I. Of Engravings, Etchings, and Prints. It has been well expressed by Mr. Godson, that upon the same principles, and for the same reasons, that the legislature have protected the Scholar in the enjoyment of the fruits of his knowledge and industry ; so it has provided that the Artist shall not exert his skill and ingenuity without a hope of reward from the result of hislabors('). There would appear to be a greater difficulty in detecting the piracy of an engraving or print, than in that of the lan- guage and sentiments of a literary composition, and the means of concealing the piracy appear somewhat easier in the former than the latter case. Still the subject is capable of ascertainment. And it is' clearly decided, that where a print is a copy in part of an original, by varying in some trifling respects only from the main design, the vendor is liable to an action by the proprietor of the original ; and this liability exists, although the vendor did not know it to be a pirated copy. Thus in the case of (Vest v. Francis, it appeared at the trial that the plaintiff was the proprietor of the prints described in the declara- tion ; and that the defendantj who was a print-seller, had sold copies of the same, all varying from the original in some respect, but preserv- ing generally the design of the original. There was no evidence to shew that the defendant knew the prints he sold to be copied from the plaintiff's prints.' It was objected for the defendant, that the action was not maintainable under the 17th Geo. III. c. 57, for merely selling a varied copy of a print. The Lord Chief Justice reserved the point, and the plaintiff having obtained a verdict, a rule nisi was obtained for entering a non-suit. On the motion to make it absolutCj the court pronounced the following judgment. Abbott, C. J. This Act of Parliament was intended to preserve to artists the property of their works. The question is, what is the meaning of the word " copy" of a print ? Now in common parlance there may be a copy of a print where there exist small variations from the original ; and the question is, whether the words are used in that popular sense in this Act of Parliament. 1 hat is to be collected from losing at the whole clause, by which it is provided, that if any one shall engrave &c., or in any other manner copy in the whole or in part, by varyipg, adding to, or diminishing from, the main design, or shall print, or reprint, or import for sale, or publish, or sell, or otherwise dis- pose of any copy of any print, he shall be liable to an action. Now if the selling of a copy with colorable variations is not within the Act (1) Godson, page iST. ENGRAVINGS, 8CC. 161 of Parliament, the printing or importiiig for sale such copies will not be prohibited. The whole must be taken as one sentence ; and the sale of any copy of a print, although there may be some colorable alteration, is within the- Act of Parliament. The case of Gahagan v. Cooper proceeded upon' a different Act of Parliament. In this case I am satisfied the verdict is right, and therefore this rule must be discharged. Bayley, J. I am of the same opinion. The provisions of the 8th Geo. II. c. 13, are entitled to great weight in the construction of this latter Act of Parliament. That act imposes first a penalty upon any persons who shall engrave, copy, and sell, or cause to be copied and sold, in the whole or in part, by varying, adding to, or diminishing from, the main design ; and secondly, upon persons selling the same knowing the same to be so printed or reprinted. The act of the 17th Ge6. III. c. 57, was passed to remedy the same mischief, and the words " knowing the same to be so printed" are omitted. It may therefore be fairly inferred that the , legislature meant to make a seller liable, who did not even know that they were copies. The former part of the 17th Geo. III. c. 57, s. 1, applies'to 'persons who actually make the copy, and who therefore must know that it is a copy.' But the latter branch applies to all persons who shall import for sale or sell any copy of a print. Every person, therefore, who sells a copy which comes so near the original as this, is thereby made liable to an action. There can be no reason why a person should not be liable where he sells a copy with a mere collusive variation 5 and I think we should put a narrow construction on the statute, if we held such a collusive variation from the original, not to be. a copy. A copy is, that which comes so near to the original, as to give to every person seeing it the idea created by the original. For these reasons I think the plaintiff is entitled to recover; and consequently that the rule must be discharged. HoLROYD, J. I am of the same opinion. . We should be careful not to give too extensive a construction to this Act of Parliament, but at' the same time one sufficient to remedy the mischiefs intended to. be guarded against. The q&estion is, what is the meaning of the wrord " copy." Now in the preceding part of the clause, the legislature, have called that a copy which is not strictly so in all its parts, being one varying from the main design, and I think that the word must have the same construction in the latter part. Gahagan v. Cooper was decided upon another Act of Parliament, and Lord Elle'nbbrough's judgment proceeded upon the particular mode in which the counts of the declaration were framed. Best, J. concurred. In treating of the duration aad extent of copyright('')l, we have already adverted to the "degree of originality," which entitles the inventor to the protection of the law. In Blackwell v. Harper, it was held, that the. statute was not confined merely to invention, as, for instance, an allegorical or fabulous representation, nor to historical only, as the design of a battle; (1) Vide page 82, ante. M 162 PIRATING COPYRIGHT. but it means the designing or engraving anything that is already in nature ; even a print published of any building, house, or garden, falls within the act('). A person procuring a drajving or design to be made is not e.nt.itled to protection. Lord Hahdvickb said, the case is not within the statute, which was made for encouragement of genius and art. If it w^s, any person who employs a printer or engraver would be so too. The statute is in this respect like the one of new inventions. If there can be no claim of property, there can be no title to relief (^). SECTION II. Of Pirating Maps, Charts, and Plans. The general principles which regulate other kinds of copyright, are equally applicable to maps, charts, and plans. They are indeed expressly protected by the statute 7th Geo. III. cap. 38. Lord Mansfield, in a case tried before him in the year 1785, said, " the rule of decision in this case is a matter of great consequence to the country. In deciding it, we must take care to guard against two extremes equally prejudicial ; the one, that men of ability who have employed their time for the service of the community may not be deprived of their just merits, and the reward of their ingenuity and labour ; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded. The act that secures copyright to authors, guards against the piracy of the words and sentiments ; but it does not prohibit writing on the same subject. In all these cases the question of fact to come before a jury is, whether the alteration be colorable or not? There must be such a similitude as to make it probable and reasonable to suppose that one is a^ transcript of the other, and nothing more than a transcript. So in the case of prints, no doubt different men may take engravings from the saiiie picture. The same principle holds with regard to charts ; whoever has it in his intention to publish a chart, may take advantage of all prior publications. There is no monopoly of *he subject here any more than in the other instances,; but upon any question of this nature the jury will decide whether it be a servile imitation or not. The charts in question were four in number, which the defendant had made into one large map. (1) 2 Atk. 93. (2) Jeffery's v. Baldwin, Amb. 164. MAPS, 8cc. 163 It appeared in evidence, that the defendaht had taken the body of his publication from the work of the plaintiffs, but that he had made many alterations aijd improvements thereupon. It was also proved, that the plaintiffs had originally been at a great expence in procuring materials for these maps, Delarochett, an eminent geographer and engraver, had been eipployed by the plaintiffs in th^i engraving of them. He said, tfiat 'the present charts of the plaintiffs were such an improvement oft those before in use, as made them an original work- Besides their having been laid down from all the charts and maps extant, they were improved by many tnanuscript journals a,nd printed books, and manuscript relations of travellers : h^ h^d no doubt the materials must have cost the plaintiffs between .£3000 and £4000^ and that the defendant's chart was taken from those of the plaintiff^, yfith a few alterations. In answer to g, question from the court, whether the defendant had pirated ftota the drawings and papers, or frppi th? engravings ? He answered, from the engravings. Winterfplt, an engraver, said he was actually employed by the defendant to take a draft of the Gulph Passage (in the West Indies) from the plaintiffs' map. Many witnesses were called an behalf the defendant, amongst others a Mr. Stephenson and Admiral Campbell. Mr. Stephenson said, he had carefully examined the two publiqations ; that there were very important differences lietween them, much in favor of the defen- dants. That the plaintiff's maps were founded upon no principle ; neither upon the principle of the Mercator, nor the plain chavt, buit upon a corruption of bpth. That near the eqiiiMtor the plain chart would do very, well, but that as you go further from the equator, there you must have recourse to the Mercator. That there were very materia;! errors in the plaintiffs' maps. That they were in many places defective in poititing out the latitude and longitude, which is c;::ftreiriely essential in navigating. That most of these, as well errors in the soundings, were corrected by the defendant. Admiral Campbell observed that there were only two kinds of charts, one called ^ plain chart, which was now very little used, the other, which is the best, called the Mercator, and which is very accurate in the degrees of latitude and longitude. That this distincJtion was very necessary in the higher latitudes, but in places near the equator it made little or no difference. That the plaintiffs' maps were upon no principle recog- nized among seamen, and no rules" of navigation would be applied to them J and they were therefore entirely useless. Lord Mansfield, in addition to the general observation already quoted, said, " If an erroneT)tis chart be made, God forbid it should not be corrected even in a small degree, if it thereby become more serviceable and useful for the purposes to which it is applied. But here there are various and very material alterations. This chart of the plaintiffs is upon'a wrong principle, inapplicable to navigation. The defendant has therefore been correcting errors, and not geryilely copy- ing." And he directed the jury, if they thought so, to find M 2 164 PIRATING COPYKIGHT. for the defendant; if they thought it was a mere servile imitation and pirated from the other, they would find for the plaintiffs. A verdict was accordingly found for the defendant('). In the case of a map of the island of St Domingo, made by Mr. Bryan Edwards, and which was pirated. The Lord Chancellor said, it might be asked, how is it possible to have a copyright in a map of the'' Island of St. Domingo ? Must not the mountains have the same position, the rivers the same course? Must not the points of land, the coast connecting them, the names given by the inhabitants, every thing constituting a map, be the same? The answer was, that the subject of the plaintiffs claim was a map, made at great expence, from actual surveys : distinguished from former maps by improvements that were manifest : the defendants map was a servile imitation, requiring no expence, no ingenuity ; possessing nothing that could confer copyright(f) . CHAP. VI. OF THE REMEDIKS FOR PIRACY. The statutes having vested the right of property in the author, there must be a remedy by the principles of the common law in order to preserve it. It is accordingly clearly settled, that the action for penalties given to a common informer as an additional protection to the copyright of an author, does not oust the common law right of property so conferred('). The modes of procedure in obtaining redress for injuries to copyright, are 1st. By action on the case for damages. 2nd. By action under the statute for penalties. 3rd. By a suit in Equity to restrain the publication, and compel an account of the profits. SECTION I. Of the remedy by action on the Case for Damages. It is not deemed necessary to the completion of the design of this treatise, to enter upon the technical description of the pleadings either at law or in equity(*); but the general fl) Sayre v. Moore, 1 East, 361, note. (2) Cited, 12 Vesey, 274. (3) Beckford v. Hood, 7, T. R. 6SfO. (4) For observations on the pleadings, vide 6 Petersderff's Abr. 574. REMEDIES — ACTION FOE DAMAGES. 165 nature of the Evidence required at the trial, it will be material to point out. For the plaintiff it must of course be proved, if the action be brought by him, that he is the author or proprietor of the work; As the best species of evidence, he should produce the manuscript where the action is brought for pirating a book, and prove his hand writing, or the hand writing of his amanu- ensis. Hence it is always important to preserve the original. If the manuscript should have been lost > or destroyed, the fact of loss or destruction it should seem must be proved before evidence can be received of its composition by -the author, or by his dictation. In an action for pirating engravings, it is sufficient to produce one of the prints taken from the original plate^ — the production of the original itself not being required('). Where the action is brought by the assignee of the author, he must, in addition to the proof of the original title of the author, deduce his own title by legal assignment from him(°). The same species of evidence will of course be required when the subject matter of the action consists of notes or additions to Sl (ouaer -woili. . It will next be necessary to produce a copy of the work complained of, and prove the injury sustained according to the specific allegations in the pleadings ; whether by piinting and publishing, or by exposing to sale, or importing. ■ Proof is often given, that parts of the first work were used at the press when the second was printed, and that the alterations supplied in the MSS. were merely colorable. The prevalence of errors in the second work identical with those in the first, is likewise good evidence of piracy, since it can scarcely have happened that two persons would fall into precisely the same mistakes in repeated instances. The extent of the damages may be proved by the number of copies sold by the defendant, or by any other facts incident to the nature of the work. The allegations in the pleadings of the title of the book pirated, and the time (if set forth) of the first publications should be carefully made, lest the defendant avail himself of the error by shewing a variance from the fact For the defendant, the evidence will of course vary according to the nature of the defence. ' It may be shewn that the plaintiff is not the author of (1) 5 T. R. 41. (3) For the mode of transfer vide the next part of this book. 166 PIRATING COPYRIGHT. the composition alle^ged to be pirated, by proving who was the real author. If the defence be a publication of the second work by the consent of the author of the first, such consent, must be strictly proved, and \n conformity to all the statutes it must be given in writing. According to the statutes previous 4o the 54th Geo. III. c. 166, it was requisite that the consent in writing should be signed in the presence of two or more credible witnesses, but in the last act, this clause of attestation is omitted. The transfer of engravings and sculpture must be attested by two witnesses. The next question at the trial will be, whether the defendant's work is substantially the same as that of the plaintiff, so as to leave no doubt that, however varied in some particulars, it is a fraudulent imitation. It would be competent for the defendant to shew that the work which he had published, was compiled from the original authorities, and entitled therefore to be considered as a new work(')- It would also be a good defence, as we have seenQ, if the work of the plaintiff were of an illegal or immoral nature. So also if the period limited by the statute for the pro- tection of the copyright had actually expired, or the action were not commenced within the time prescribed by the statutes. On the latter point it is material to observe, that for pirating the copyright of books, the proceedings must be commenced within ^wefoe months. For the piracy of engrav- ings, etchings, prints, maps, and charts, as well as original SCULPTURE, models, and casts, the remedy is limited iQ six months. In all the instances, whether for pirating the copyright of books, engravings, or sculpture, the plaintiff, if he recover a verdict, is entitled to double the costs of the suit, whether in the English or the Scottish Courts. If the action be discontinued or the plaintiff should be nonsuited, the defendant is entitled to the ordinary costs. We have already adverted to the conflicting decisions (1) It is not a piracy to make another engraving from the same original picture. Where an artist was employefl to make engravings of two pictures, and after he liad completed them, made two sketches from the same original without using the engravings, and sold them for the use of the Sporting Magazine, Lord Chief Justice Abbott said, it would destroy all competition in the art to extend the monopoly to the painting itself. After quoting the words of the statute, his Lordship added, " in this case the defendant's engraving was made from the original picture, and not from the plaintiff's print. Dc Berenger v. Wheble, 2 Stark, 548. (2) Page, 89, ante, • KEMEDIES — ACTION FOR, PENALTIES, 167 relating to the date of the publication of engravings, &c('^- In a late case, the Court of Common Pleas, after taoticifc^ these opposite opinions, ahd looking through the statutes, held, that it was the intention of the legislature that the public should be protected against the continuance of the monopoly beyond tlie prescribed term, which might be the case if the date had not been required to appear on the face of the prints(°). But it was also held by the same court that the plaintiff need not describe himself ds proprietor. The words on the print were Newtort, del. \stMay, 18^6, Gladwin, sculp. The court said it was not usual, nor did they think it necessary that it should be stated on the print, in terms, that a particular person is the proprietor. The uniform practice is to place the names of the designer and engraver alone, and a decision questioning its. propriety would have the effect of destroying much valuable property ('). SECTION II. Of the remedy by Penalties under the Statutes. The author or proprietor of a work which has beeil pirated, or any other person, may maintain an action of debt to recover the penalties inflicted by the several statutes for the protection of literary compositions. The clauses containing the penalties h-ave been already stated. The following is a summary of their amount. As to BOOKS. 1st. The forfeiture of pirated books, printed, published, or exposed to sale, and every sheet thereof, to be delivered to the author or proprietor, and by him (on the order of the court) forthwith damasked or made waste paper of. 2nd. A fine of three pence for every sheet printed, jjublished, or exposed to sale, one (noiety to the King and the other to the plaintiff. Two penalties may be incurred on the same day for selling books, the originals of which have been written and published here, and afterwards reprinted abroad, and im- ported into this country, if the acts of sale be distinct(*). As to Engravings, ^c. 1st, A forfeiture of the pirated plates and prints to the proprietor of the 0iriginal to be forthwith destroyed and damasked. (1) Page, 82. (2) Newton v. Cowie, 5 Law Journal, p. 161 . Easljer T. 1827. (3) Ibid. In Thompson v. Symonds it was doubted whether in an assignment the name of the inventor or the assignee should appear. 5, T. R. 41. <4) Brooke v. Milliken. 3 T. R. 509. 168 PIRATING COPYRIGHT. 2nd. A fine of five shillings for every print found in the defendant's possession, either printed or published, or exposed to sale : the one moiety to the King, and the other to the plaintiff, ■ ' .4s scorn all meaner views." It was not for gain that Bacon, Newton, Locke, &c. instructed the world. There are various unan- swerable replies to this piece of rhetoric. First, the question is not what are the motives pf an author-^Grlory or Gain— but what is due in justice ivom the public to those who have conferred benefits upon it? What is right? If the benefit be perpetual, why should not the reward ? If Shakespeare has left us volumes of intellec- tual gratification which can die only (nay, not even then) wi'th the language m which they are written, why should not his decendants (long reduced to poverty) derive the benefit which justice demands, and which gratitude would cheerfully pay. Granting that Nelson and Wellington were stimulated to their immortal exertions by glory alone, do we owe them nothing, because they have received their reward ? Were the titles and the wealth that were bestowed upon them needless ? Besides, it may be asked, how do the national rewards of substantial property act in the way of excitement upon the conduct of others. Has the perpetual entailment of Blenheim had no influence upon the minds of subsequent warriors 1 2ndly. Different men possess different propensities and feelir^s. The objection supposes all men alike,and that they are alone influenced by the predominant passion of ambi- tion. It is an objection founded in utter ignorance of human nature. A verylarge class certainly are desirous of renown. But there are other classes besides the ambitious. Many men love their parents, wives, children, and kindred^ and to that intense degree tihat they will exert their powers more eminently for them than for the empty bu?;z of stranigers or of distant posterity. Do these lawyer-like reasoners sup- pose that all men of warm affections are deficient ih ingenuity, and that the stern and cold man of ambition is the only inheritor of genius and greatness ? Now a man of this kindly nature may care but little for "gain," so far as he is personally concerned ; but for the gake of those who are dearer to him even than " glory," he may bestow more labor OBJECTIONS TO A PERPETUITY. 187 than the mere anabitious man, and wherefore should not he be permitted to receive that, which the public would readily and gladly pay? Who is there that has read the " Paradise Lost," that would not be delighted whilst paying its price to know, that he had contributed his mite to avert the penury in which had died the last descendant of its author? It is any thing but philosophical to taljc of men, in ge- npr^l, as exerting themselves disinterestedly ^ and " scorning all mean views." Small must he the knowledge of human na- ture which ventures upon such declamation. There are men of the strictest integrity^ who far surpass the generou,s and the ambitious in acts of justice, and yet are influenced by motives of gain. Are all men, who desire to be paid for the services they perform, " mean ? " Authors are not a peculiar race of men— able to live on the air, " glory crammed," Neither we suspect were those who reasoiied with such loftiness able to live on the renown, either of framing or administering the laws with impar- tiality. There is yet another class of men, the most numerous pf all, who are riot actuated by any single predominant motive, to whom neither glory, nor gain, are master passions ; bnt who are influpnceg by mixed naotiyes, and who would bestow greater exertions, if their social, as well a,s selfish feelings were equajly gratified. Why should we not use all the means which justice permits, to excite men to the exertion of their best faculties ? He who can, by his works, obtain not only the prospect of future fame, but the substantial advantage of immediate recompense, with a provision for his family after his 4'eath, - will labor with greater diligence than those >vhp are incited only by the desifje of posthumous renown. The reward of glory may, indeed, stimulate the protjuc- tion of vforks of pure genius, and the more, especially as the exercise of the imagination is so peculiarly delightful ; but this cannot be the case, in an equal degree, in the depart- ment of philosophy. Great, persevering, and often painful labor, is necessary to the accomplishment of many works of science, and therefore every ppssible inducement should be added, instead of being diminished, that may terjd to encpu- rage the prosecution of Siuch labors. Besides, an authpr, who wished for no other reward than renown, might still exercise his iiberality, and either present his labors gratuitously to the public, or hegtow them on some nleritorious object. He can do so no,w in favour of the Uni- 188 PRINCIPLES OF THE LAWS. versities ; and the glory of the bequest would be the greater because it would be more rare and generous. CHAP. II.. ON THE INJUSTICE AND IMPOLICY OF THE LIMITATION. In the previous part of the work we have considered the reasons and foundation on which the claim to an extension of copyright depends, and the unlimited protection to which it is entitled, under the general laws which apply to all kinds oi property. It will not be necessary in this place to enter into an examination of the subtilties, by which it was attempt- ed to exclude literary compositions from the guardianship of bur courts of justice. In the Introductory Dissertation, and tlie sections on the nature and definition, of literary property , and its claim to a perpetuity by the common ' law, which commence the Historical v iew, we have endeavoured to establish a foun- dation for the property in question, which we conceive to be consistent, equally with the laws of civilized communities in general, and with those of this country in particular. Referring to those previous parts of the Treatise, for the preliminary consideration of the basis on which the right is founded, we shall proceed, in this place, to discuss the po- licy, as well as t\\e justice, of extending to the Scholar and the Artist the provisions which guard the property of all other classes of the community. It is one of the most indisputable principles of justice, that THE LAWS SHOULD BE EQBAL. This golden rule is violated in the distinction created be- tween the copyright of individual authors, and the copyrights ' held by the Crown and the Universities, in both of which in- stances it endures without limitation. The several cases reported in the law-books, for violating patents for printing prerogative copies, after the expiration of the period limited by the statute, prove that a copyright was acknowledged by the common law : since if the king had not the right, he could not grant it to the patentee. It is clear that the king, by his prerogative, has no power to restrain print- ing, which is a trade and manufacture ; or to grant an exclu- sive privilege of printing any book whatsoever, except as a sub- ject might; by reason of the copyright being his property. It is now clearly settled, that the king is owner of such books or writings only, as he had the sole right originally to publish. THEIR INJUSTICE AND IMPOLICY. 189 consisting- of acts of parliament, orders of council, proclama- tions/Eiiglish translations of the Bible, and the Common Prayer- Book. These are his oitw works, as he represents the state, and, according to the constitution, is head of the church. There seems to be no principle on which the exclusive pri- vilege thus established in favour of the Crown, should be de- nied to private authors. If there be any sufficient reason for appropriating the acts of state. and the ordinances of the church, the same reason would extend to the case of all other copyright; — if it.be thought, necessary, in order to secure correct copies of the statutes and ordinances, that no one but t^e king's printer should be permitted to publish them ; it is in a comparative degree important, that the author of a lite- rary w6rk should retain the superintendence of its publica- tion ; since it may otherwise be incorrectly printed, or he may be deprived of the power of amending or improving it — of correcting errors on the one hand, or extending the illustration of truths on the other. So far, indeed, from there being any solid reason for the «xercise of. the prerogative, whilst the ordinary rights of pro- perty are denied to individuals, it is manifest that here there ought to be no copyright whatever, beyond the printing of such copies as are necessary for judicial proof, ov other public purposes. For all other objects there ought to be no restraint, since it must be the interest, as it ought to be the duty of government, to diffuse a knowledge, as extensively as possible, of the regulations both of church and state; and there is a sufficient guarantee, that the unofficial copies of these acts of state will be adequately faithful, for any blunders in them would be soon detected, and the publication which came re- commended by its accuracy, would be the most extensively circulated. The other instance in which the right claimed by authors has been granted to others, whilst it was denied to them, is that of the Universities of England and Scotland, and the Col- leges of Eton, Westminster, and Winchester, and that of Trinity-College,' Dublin. It is difficult to conjecture any reason for allowing to these public institutions a copyright in literary compositions^ which does not, in a far stronger degree, belong to the iildi- viduals by whom this intellectual property was produced. Without exhausting conjectures on the foundation of this privilege, we may resort to the Act of Parliament by which it is created, and where the basis of the claim is thus described : — Authors, it lis said, may give or bequeath the copies of books to 190 PRINCIPIES OF THE LAVfS. these respective Universities and Coll^eSj and may direct the profits to be applied for the advancement df learning ; lest, therefore, such useful purposes should be frustrated,, the sole priftting is secured to them in perpetuity. Now, it is manifest, that if the Universities, as the lega- tees of authors, are entitled to this extended proteGtion, the authors themselves are still better entitled to it. Admitting that the Universities are in possess-ipn of no more than their just rights, it is evident that private individuals, not merely for their own sakes, but for the interests of science and lite- rature, are, at least, equally, if not in a higher degjree, enti- tled to legal protection. The Universities, in their corporate capacity, can esta- blish no pretensions on which the exemption can be justly founded. They are not, collectively, in advance of the literary and scientific world ;, nor have they accelerated the progress of modern improvement It is, indeed, often urged, that these institutions rather impede than assist the extension of science ; that they follow, at no inconsiderable distance, rather than lead forward the human intellect to new fields of inquiry. Without discussing this invidious view of the subject, it may be assumed, without much fear of injustice, that the person- ages who compose these learned associations, have achieved nothing, in their official character, which can justify the pecu- liar exemptions they possess. The distinguished writers who, in their private and individual capacity, have conferred honor by their works on the seats of learning to which they belong- ed, cannot but make common cause with their literary brethren. It is worth observing, also, that the privilege of th^ Universities cannot be upheld on the ground of necessity ; — they cannot plead that it is granted in commisseration for their povertif, for they are unquestionably better able to bear the wrong which the laws inflict on individuals, but which the Colleges possess such eflfectual power to prevent. Indeed, were there any foundation for such a pretension, it would be infinitely better for the sake of justice, and the example of an equal administration of its sacred principles, that they should re- ceive a parliamentary grant, than that so flagrant an anomaly should be permitted to exist. The evasion of the law§^ is always a great evil, for there is not only the immediate injury to justice of the specific violation ; but a general weakening of the salutury reverence which is entertained for national institutions when founded on principles of reason and equity. Now both the authors and the publishers to whom they THEIR INJJTJ^nCTE AND IMfuiiuV. 191 have assigned their works, have a strong feeling that the limitation of copyright to the period of twenty-eight years is inconsistent with the regulatioils of all other arts and profes- sions, at variance with the commonest principles of free trade, and equally injurious to authors and publishers witholit anj' correspondent benefit to the public. It is natural, there- fore, that every effort should be made to elude the conse- quences of an arbitary and irrational infringement of thfeir own rights and of the property of their families — of a patri- mony often earned at the expencfe of health, and of the abridgment of life. And whilst acting under such feelings, there are few, even of the coldest-hearted legislators, who would visit with much censure, the plan of ingenuity and contrivance which has been resorted to by the parties interested, in saving themselves, as much as possible, from injury or diminishing its magnitude. The proprietor of the copyright prior to its expiratibn takes care to prepare a new edition with notes, and though the original work becomes common property, the notes are pro- tected on the ground of their constituting an original com- position. By a sort of combination also amongst the princi- pal booksellers, these renewed editions " with notes," receive a preference over others. The interpretation which the judges have put on this mode of republication is exceedingly liberal, but if it be right that publishers should resort to these expedients to protect their property, the law should allow it to be done openly instead of surreptitiously : an honorable man must revolt against a system which subjects him to lose his property or to practice devices and evasions which out of respect to the laws of his country he must dislike. And although by these means the mischief is soinewhat practically diminished, much of it unavoidably remains. The work rtiay not really require any notes either of explanation or addition Or they may be such as the humblest talents cstn supply. There are, it is true, some subjects which are undergoing continti'al change and the publications which treat oi them require proportionate alterations. But if not so, the work is incum- bered with useless comments, or the name of some eminent author is appended to a new edition which an ordinary writer might equally well supply. Not only individual publishers would gain by the exten- sion, but it would promote the interest of publishers in ^eile- ral, if the property in a work were vested perpetiially in the author and his assigns. Suppose that the moment a valua- ble book were published, every one had a right to pirate it, the effect would be, that a general scramble would ensue to 192 PRINCIPLES OF THE LAWS. reprint cheaper editions than the original. A great number of persons would be engaged in doing the same thing. The market would be over stocked. None would be sufficiently remunerated and all would be more or less injured. It would be analagous to permitting the land of a deceased person to be retained by any one who could by stratagem or force obtain posession. A riot would then succeed the death of every landed proprietor. Now something of, the same kind must take place, though in a less degree, at the expiration of the statutory period, and although the evil is partially sub- dued by the evasions and combination before adverted to, still it cannot be generally avoided. It has been urged by those who maintain the sufficieney of the present system, that the extension of the term would pio- duce no good to the public. But the question ought to be, what evil will it occasion \ . For if there be no evil, there ought to be no restraint. It is happily clear that right and expedi- ency are as inseparable in this as in all other cases, for by the extension of the term the public would receive superior and cheaper publications. Authors, are at present discouraged from executing works of a standard nature because such works demand the labor of a life. It is evident that tailent may be more profitably employed in the attention to works of temporary excitement. The fashion of a particular age or season is consulted instead of the general and enduring interest of the community. The question with an author who is about to select the sphere of his literary labor is^ot determined by any opinion of what will be beneficial to mankind at large, or ultimfitely ensure his own reputation, but what will sell the best in the literary market. It is not easy to estimate the labor and expence of a work of superior utility and importarice. It demands a degree of research and care which can scarcely be bestowed whilst the law continues in its present state. Besides the works which are costly in their embellishments, the scientific and literary labor which many of them demand, can only be encountered where there is no apprehension of restraint. Thus, in works of great historical scoper— the investigation of an- cient as well as modern manuscripts and records — of scarce documents, ill-digested and repulsive . works — of conflicting evidence— all these demand not only great judgment and accuracy in the winnowing of large masses of materials; but superior skill in adopting the best arrangement, and selecting the most appropriate language and illustration — and without the devption of much time and leisure, the THEIR INJUSTICE AND IMPOLICY. 193 greatest talents cannot execute the work in a manner pro- portioned to its magnitude and importance. Again.in works of a philpsophic and scientific character — should they comprise subjects of striking originality : the invention of a new system — the task of experiment and induction may require a still wider range of exertion and longer continued perseverance, which it is. vain to suppose will.be often bestowed without superior recompense. It is not reasonable to expect that the public can render imme- diate justice to works of an en);irely novel description. .For whatever is at variance with established opinions and received theories is naturally liable eitber to, neglect, or opposition. Perhaps it is the safer course for the public that it should .be so. There is less danger in adoptjrig'a system after it has been subjected to every kind of ordeal, than if it were favoraljly rfeesived upon its first hasty and insufficient investigation. But whilst the public enjoy this immunity, let no needless injustice be done to the sons of genius. If the: reward of their spleiidid discoveries cannot be bestowed in the age they live in, — if the authors of new and ingenious systems cannot reasonably expect that justice will he done to their meritorious labors during the span of their own brief exis- tence, let them at? least possess the consolation, of looking forward to that day, however distant, when posterity will make amends to their surviving family, or to some future desceiidant. The evil it is evident must thus fall the heaviest on the most useful authors, whom it should be the policy of the legislature in the highest degree- to protect, encourage, and recompense. It has often been remarked, that the best and most original works make the slowest advances in general circulation. Smith's Wealth of Nations passed through two editions only in eight years. Hume's History fell dead-born from the press ; and Milton's immortal poem remained for many years in almost total obscurity. It is a fact, proved by indisputable evidence before a Committee of the House of Commons, that many important works of an expensive nature have not been published owing to the hardships imposed by the law. A great part of that hardship is attributable to the heavy tax of . the eleven presentation copies for the public libraries (which we shall presently examine) but much also of disadvantage arises, even as regards , these .costly publications, from the limita- tion of time, because the splendid engravings, which occa- sion the chief expence of many of these works are equally 194 PRINCIPLES OF THE LAWS. doomed to common depredation after the end of twenty- eight years. It must be recollected that, authors are generally depen- dent on circumstances of a very uncertain nature for the notice their productions receive from the public. A great name will often do much and so may a great subject. Reviewers also are able to accomplish not a little in favor of a new publication, yet criticism is not infallible nor always well intentioned. It may suit the taste or the interest of the critic to cry down the subject, or to affix the "branding iron," upon the author. Malice may purposely condemn and pre- judice, or ignorance blunderingly censure. — Thus "the whole ear" of the reading public may be " abused." It is obvious, that if the period were extended, a higher remuneration might be afforded for works of superior impor- tance on account of the enduring nature of the property in them. The profit it is true might not be rapid but its unli- mited continuance would generally in the result compensate for the advance of a larger amount of capital. We might illustrate this fact by reference to the nature of leasehold and freehold property. For all ordinary purposes, to the great bulk of mankind, long leasehold property is really as useful as freehold, and endures as long as the lives of any for whom they feel an interest, yet we may perceive that such is not the general feeling, for the price in the ^market is exceedingly different : men are content with about three per cent when it is ensured to them in perpetuity, but they expect seven or eight in the other case, though it may last out three genera- tions. The cheapness of a work would thus obviously be pro- moted by the just extension of the period of its protection, because the proprietor would not depend upon any sudden return of his capital, but would proportion his gain to the extent of its duration. As he would ultimately receive a better remuneration he could afford to diminish its present amount. The calculation is now made upon an immediate return : if that does not take place, the work is supposed to be condemned — no matter what may be its intrinsic merits, no- further efforts are made to bring them before the notice of the public. — The legal period being so short, it is not deemed worth while to keep open the account, and it is dosed as soon as possible. It may be said, however, that this extension of copy- right would not produce any very perceptible difference in the immediate price to the public of literary works. And THEIR INJUSTICE AND IMPOLICY. 195 undoubtedly to effect a sufficient reduction, corresponding with the sale of books on the Continent, the tax in favour of the public libraries, the imposts upon paper, and the duty on advertisements should be dul^ moderated if not removed. It must, however, be Apparent, that great good would be done by the extension of the copyright, and it would be an earnest of future improvements, that would give a great impulse to the best kind of literary undertakings. o 2 196 SECOND PART. OF THE LIBRARY TAX OF ELEVEN COPIES OF EVERY BOOK. CHAP I. THE GROUNDS OF THE LIBRARY CLAIM EXAMINEt), Having brought before the reader the state of the law with reference to the contracted period during which the rights of authors are protected, and animadverted upon the monstrous injustice of permitting the productions of intellec- tual' labor to become the object of common plunder after twenty-eight years, whilst the fruits of ordinary industry were wisely secured in perpetuity ; we now turn to the con- sideration of the next feature of oppression in these statutes " for the encouragement of learning." After curtailing the duration of the right of literary property, from a perpetuity to the brief term of twenty-eight years (in return for which restraint, it might have been anticipated that some splendid boon was intended to be conferred) the Acts of Parliament proceed to impose a tax of eleven copies on every publication^ whether the most rare and expensive, or the cheapest and most insignificant. Although the statutes impose a penalty of three pence per sheet for pirating copyright, the old mode of redress by an action at law for damages, or an injunction and an account in equity has always been and is still preferred. So that, in truth, the statute has practically left the remedy just where it was, and in consideration of the three pence per sheet (which is rarely if ever sued for) cut down the per- petuity of right to the short span of twenty-eight years ; and in return for these services to literature, this protection of learned men and their families, (which closely resembles the protection afforded by the vulture to the lambs) — the legisla- ture imposed a new tax of six copies, and revived an old one of three others which had been levied iii the time of Charles II. but had expired soon after the revolution. Thus we perceive, that the mild literary imposts of the Stuarts were not deemed sufficient in that sera which has somewhere been denominated the Augustine Age of English Literature! The two remaining copies, wHich complete this measure of " encouragement," were imposed so late as the year 1802. The purpose for which these last copies are professedly de- GROUNDS OF THE LIBRARY CLAIM. 197 signed, might 'be considered, at first sight, as mitigating, in; some degree, the. quantum of injustice, for they are imposed. for the benefit of Jre/awd— constituting, it may be supposed, some little compensation for the evils, to. which that ill-fa.ted province was subjected, and realizing part of the high expec- ta,tions which were so flatteringly .held out to its patriotic feelings, that the union of the two parliaments would be fol- lowed by the happiest effects. Thus, for the paltry consideration of these miserable copieSj wrung from the hard pittance of the ingenious men of this country; the gifted sons of Ireland, who have so long shed a lustre upon the literature of the empire', are in their ■ turn mulct, — not in two copies only, but in eleven ! Such are the notions of equal laws and equal justice, which have hitherto prevailed on this iinportant subject. In treating of the origin of • this tax, we examined the kgal pretensions on which it was attempted to be maintained('). It wa& formerly contended that the art of printing had been introduced^at the expense of the king, and therefore that he was entitled: to impose such terms as he pleased, in granting a license for its exercise. The agreement was also adduced by which the Stationers' Company engaged to furnish a copy of every book to the University Library at Oxford. These pretensions having been exploded, we have now to examine the general and more popular grounds, on which the advocates of.tne Universities still contend for the continuance of the tax. ■ . , I. That fAe law is beneficial to the Universities need not be disputed. These gratuitous contributions to their several libraries save their funds. But is the saving necessary or just? Have they not sufficient means to purchase every use- ful publication ? Do they really make use- of the current lite- rature of the age.? These are questions which cannot be an- swered, except in the negative. It cannot be requisite that every, work that , issues from the fertility of the press should be deposited in all the libraries. The works which are esteem- ed in these ancient colleges are those which have long main- tained their rank as standard productions. The great bulk of modern, publications are not introduced, and cannot, perhaps, with propriety be introduced into the course of study, pursued at the Universities. A large part of the system of education is confined to ancient authors, and to subjects which do not admit of modern improvement. Indeed, the general plan of instruction is opposed to whatever is novel and speculative. (1) Pages^4— 49. 198 PKINCIPIES OF THE LAWS. Nothing is adopted but that which has been long tried and estab)isked, and we cann&t conceive, therefore, why the heads of colleges require those valuable but modern works, which they do not permit to be used. Even were it necessary to the welfare of the Univer' sities, that each should possess a copy of every publication, it is iniquitous to exact them at the expense of individual authors or proprietors. The colleges of which they are com- posed are in general richly endowed, and if each college could not afford to possess itself of the modern publications, their united funds would certainly be amply sufficient. It may be true, that some of the Scottish colleges have but little surplus wealth to dispose of in the purchase of every kind of publica- tion ; but whatever" may be thought to the contrary, we are persuaded that the intelligent people of Scotland, in general, possess too much just pride to plead the poisertf of their Uni- versities as a ground for unjust exactions. II. it is said that the Universities cmmot purchase thesplen- did editions of great and expensive works, and yet they are works of which they stand in the greatest need : they give a University dignity and respectability. And in some departments of liberal education, accurate drawings and engravings are essentially requisite. Now, however agreeable to the eye are splendid editions, and however suited to the taste of the affluent, we exceedingly question their utility, not only to the student, but to the pro- fessed author. Fine plates and bindings are adapted to the literary idler and looker-on, but can scarcely stimulate any one to intellectual exertion. These splendid trappings are for holidays, and not for days of learned labor. They tend, like great luxuries in general, more to enervate than invigorate. That the welfare of a college is at all dependent oa splen- did editions we, therefore, altogether deny. If they should be rich enough to purchase these luxuries there can be no objection, for though not necessary to the real student aad man of letters, they are no doubt agreeable subjects for lite- rary relaxation. The " respectability " of the establishment surely cannot be promoted by robbing an author of any portion ©•f his fair- earned reward, and drawiing down upon itself the odium of the whole republic of letters. And its "^ dignity " can scarcely be increased' by any other means than th-e opportunity it af- fbrd's to attain sound, comprehensive, andf accurate know- ledge, in the highest departments of pMlosophy and litera- ture. It is beneath its real dignity to owe any of its attrac- GROUNDS OF THE LIBRARY CLAIM, 199 lions to the splendid decoration of its library, in which, in- deed, there should b^ as little as possible addressibd to the external sense, and every thing adapted to excite the in- tellect. It is true that the student may be assisted in his pur- suits by occasional engravings, but those which are useful are of a very different class to the splendid drawings which render many works so costly. Even in architecture, we ap- prehend it is not necessary that the plates for purposes of study, should be very costly, and besides, it is not in a col- lege that the education of an architect can be completed. Antiquarian works are of course expensive, but we are not aware that the Universities profess to induct their pupils in the knowledge of antiquities, the study of which may safely be left to thes Antiquarian Society. So also botany and zoology may be effectually studied without the aid of magni- ficent plates, which, indeed, are rather calculated to excite a taste for drawing, and to encourage a love of show and splendour, than to induce philosophical and studious habits. We can see no adyants^e to public education in attracting the pupil to quit the hard study, which can alone render him eminent in society, for the purpose of gratifying his taste in examining splendid folios, and admiring the productions of the arts of drawing and engraving. III. But the law is sa;id to be beneficial to general litera- ture, by affording to men qf literary talents and industry the means (ff' information, and enabling them to accomplish works of the hiigbest merit and utility. This is too barefaced an excuse for injustice ; it is rob- bing Peter, not to pay Paul, but to enable him dishonestly to live at the expense of Peter. The men of " literary talents and industry," who have accomplished works of merit and ability, are to be deprived of a large part of their profit, where any exists, in order that others may avail themselves of the results of their industry gratuitously. Surely, the fel- lows of these learned Universities, who fator the world with their collegiate lucubrations, and who set their own price upon them, should stand on the same footing ds other literary men, and purchase the materials which they require in the course of their labors. It may be very convenient, bat it cannot be just, that by the aid of these Universities a Writer should possess himself of the property of his predecessors, for which no remuneration whatever has been m^de. And after all, there is not the plea of necessity in favor of the in- justice ; for it is the common practice of an authlor who is 200 PRINCIPLES OF THE LAWS. engaged on a work, in the preparation of which he has occa- sion to refer to a variety of books, to obtain them from his publisher ; and it is part o^f the understanding between them, that all the books which are necessary shall be lent him. Of course there is, of all others, the least difficulty in supplying the modern publications. And we presume, no ©ne who is tolerably acquainted with the history and circumstances of literature, can believe that it has been, or is Hkely to be, benefited or improved by the doctrine, for the first time laid down in 1812, that the Universities are entitled to copies of every publication. We may venture to say, that if not the best authors of the present age, at least, as good as any others, are unconnected with the Universities, and derive no advan- tage whatever from the accumulations which have beeft made in their libraries, either since 1812, when every book has beien supplied, or prior to that time, when the registered books only were delivered. Indeied, it is absurd to suppose that the intellect of the country is to be advanced by such paltry . means, and the true friends of academical learning are no doubt as much ashamed of the folly of such an ai^ument, as of the dishonesty of its principle. Supposing, however, all these considerations set aside, let us inquire what is really the use of the single copy given to any one University ? In general, the books are of no use whatever to any one in any of the colleges. Of the far greater portion, not a single page is ever read. It either is utterly useless, or is so considered for all collegiate purposes. In- deed, how can it be otherwise, when the libraries indiscrimi- nately demand their copies of every publication — of all the trash, folly, and obscenity, which find their way out of the press. But, suppose the work to be really valuable, either for its profoulid philosophy or learning, or for the popularity of the subject and the talent it indicates. Then every one be- comes desirous to read it. Thousands of students apply for it ; and what is the consequence ? As but few can possibly obtain it, -the work is either purchased or borrowed from the cominon circulating libraries, and the copy in each of the eleven libraries has precisely the effect of preventing pur- chases from the author, for the sole benefit of a few indivi- duals, who can either do without the book, or afford to pay for it. IV. Another benefit of the law, liowever, is said to con- sist in preserving the books from the danger of ioss, some of which are valuable, aild others will to future times prov« curious. EFFECT OP THE LIBRARY TAX. 201 The really valuable works there is no probability will ever be destroyed. The art of printing has disposed of all reason- able apprehension of that contingency, and we think it bad morality, on the coldest application of the doctrine of expe- diency, to do an, act of positive injustice, for the sake of pre- serving something which may become curious. Certainly, many a jsroduction, intrinsically worthless,,may, from. its ex- treme rarity or antiquity, obtain an artificial value in the esti- mation of those who are pleased with such things; but it is not politic, (to say nothing of honesty,) to injure and discou- rage the writers of the present age, in order that a biblical antiquary may, some centuries hence, feed his idle vanity with the possession of a specimen of unique absurdity ! To meet, however, the object of preserving a copy of every kind of publication, whether the offspring of the talent- ed or the foolish, the moral or the vicious, it would be sufii- cient to deposit a single copy in the British Museum as the National lAbrary. To this, we are sure, no author or publisher would offer an objection, and this copy, so deposited, would serve the purpose, and render unnecessary the extra copy which every printer, by the 39th Geo.. III. c..79, sec. 27, 29, is obliged to reserve of every work he prints. CHAP, II. OF THE EFFECT OF THE TAX ON LITERATUKE. After having thus considered the nature of the claim of these favoured libraries, and the grounds on which it rests, we proceed to riotice the evils which must necessarily attend its continuance. -The law has the effect of preventing the publication, both of valuable and expensive works ; of those which re- quire in their composition great learning and talent, and those which demand expensive illustrations and embellishments. The costliness of a work .necessairily diminishes the number of'its purcTiasers, and consequently the copies published are proportionally of a limited amount. It is. well known, also, . that the scarcity of a book increases its value in the literary market, and it'is consequently material that as accu- rate a calculation as possible should be made of the expected demand. The skill and capital which are embarked in these expensive undertakings, cannot be rewarded without placing a high price upon each copy-, and the exaction of eleven 202 PRINCIPLES OF THE LAWS. copies out of fifty or 100, generally absorbs the whole pi'ofit. In some instances, the eleven copies amount to a tax of up- wards of 40 per cent. ; in others of 20 ; and in a very large proportion of cases, to 10 per cent. Even in the most ordinary publications, the tax is su£S- ciently oppressive. The proprietor of the work, whether au- thor or publisher, of course, forms the best estimate in his power of the probable extent of the sale. The custom of the printing-trade, if is well known, is to make the charge on each 250 copies, and the loss on eleven copies is exactly the price for which they would sell, or if , that number of extra copies were printed, the loss would be equal to the printing of 260 copies, exclusive of the expence of paper. It is futile to say, that the printer might make his charge in a diiFerent manner — the custom of the trade has [been long established, and we are not aware that the printer's remuneration is higher than it ought to be, or that it can possibly be reduced. On the contrary, we understand that journeymen taylors receive higher wages than the compositors in a printing office. We have heard it argued, that where the work is popular and the sale extensive, the exaction becomes a mere trifle and is scarcely perceptible. Further, that when the work does not sell, the eleven copies may as well be placed in the public libraries as in the lumber-room of the pub- lisher. In considering this point, it must be borne in mind, that the majority of publications are not sufficiently successful to pay their expence, and although the publiahei' might afford to pay the tax on a work which met with great good fartuney yet it is only by these occasionally successful speculations that he is enabled to bear the frequent losses which he must necessarily sustain by other publications. This tax like every other, should be imposed according t& general princi- ples and in conformity with the rights and int^ests of the comm,unity at large. It is the language of heartless despo- tism to tell an author that if his book is not sold he may as well place it in a library as a lumber-room. Would this cruel mockery be endured by other classes; of the community ? If a man has more corn than he can sell,, may the sdrplus be seized? Is the manufacturer liable to this sort of confiscating process when he cannot find a market for his wares;? Can the land of the lordly proprietor be taken possession of when no profitable tenant can be found ? Many of our monied men have larger incomes than they think proper to consume, and more capital than they can usefully employ — may we lay EFFECT OF THE LIBRARY TAX. 203 hands upon a certain proportion of the surplus ? We sup- pose not — ^yet wherefore should the unsold productions of an author be subjected to a diiFerent rule T Though not saleable now, they may sell at some future time, and if not at the price demanded at a lower one. — At all events they will fetch their weight as waste paper. It may be obseiTed also, that if the work is to be esti- mated as mere lumber, it cannot be valuable to the Universities, unless indeed (as we have heard it hinted) those patrons and promoters of learning increase their sufficiently ample revenues by selling the books which they do not think proper to dignify with a place on their shelves. We may classify works into good and bad, doubtful and indifferent. Those which are really valuable are not exceedingly numerous, and the Universities ought to pay for them. They used to do so, prior to the year 1812, when it was for the first time decided that they were entitled to a copy of every publication, whether entered at Stationers' Hall or not. Of works which are worthless, these great preceptors of the rising generatioh, surely need no copies ; and such as are of a doubtful or indiffisrent oharacteit they ought not to require. Life is short-^^the season of youtib is brief, and should not be wasted in the perusal of idle or questionable productions. Looking at the amiple eaadowments of many, if not all, of the Colleges which constitute the several Universities, one should think that their funds could not be bjetter employed than in bestow- ing part of them in the encouragement of valuable works, upon the publication of which, indeed, depends that great Oibject of intellectual improvement, for the fui'therance of which, the Colleges themselves were establisibed. Amiongstothei arguments, or rather pretences, in support of the policy, if not the justice, of the law, it has been strangely contended that the sale of valuable publications is favored by an opportunity beioag' atforded by seeing such works in the public libraries,, and thus awakening a relish for them h Nothing can exceed tlie puerility, untruthfulness, or misapprehension of such a suggestion^ We take it, that, if the knowledge, of the public, with respect to new publications, were restiicted tm such informatioB as they could obtain from their deposit in the libraries named in the Act of Parlia- ment, very few of them woiuld find purchasers. Indeed, a single advertisement or noitiee in a peaiiodical work of exten- sive circnlation, will evidently effect more in behalf of the woirfc, than if it were bestowed upon every College in' the Empire. We may be sure thene is no lack of inclination to purchase able and useful publications, and if the supply 204 PRINCIPLES OF THE LAWS. could be made at a cheap rate, it is scarcely possible to estimate the extent of the demand. It is perfectly childish, to talk of the excitement produced by seeing books in a public • library, when compared with the eflPect of their exhibition in the shops of the booksellers. In London there is one copy deposited in the British Museum, and another, for the benefit of the clergy in Sion College : compare the number of persons who look at books of any kind in those two repositories, with those who are attracted by their exhibition in other ways, and we shall be satisfied of the fallacy of the notion. The fact is, that the British Museum (to which. no one would object that a copy should be presented) is resorted to gene- rally, not for the purpose of reading new publications, but to consult those which are old and scarce, and it is to the; perio- dical press, and to the activity of publishers, that an author can alone look for "awaking a relish" for any production that can now be offered to the public. Another supposed reason in excuse of the exaction, is, that it cannot affect authors or proprietors, because the amount either is, or may be, charged to the public. But in this hypothesis it is entirely forgottenj that literary works do notfornaa necessary of life, and especially that the higher class of them, which needithe greatest encouragement, are required by comparatively a small part only of the community. The tax on the means of subsistence must be paid by the con- sumer, although, even in that instance, the quantity con- sumed varies according to the price, and when the tax is high, the tradesman, if he throws the whole amount on the consumer, necessarily , suffers by the diminution of his custom. Literary works are of the class of luxuries and the smaller the price, the more extensive the sale. There is a certain quantum of money expended in articles of this class — a taste for literature is fashionable — it excites admiration and gratifies vanity, whilst it also exercises far higher and better qualities. — If the tax upon paper and adveirtisements, as well as this library imposition, were removed or reduced, and the period of copyright extended, so that books might be published and made known, as they should be, for two-thirds of the present expence, the sale of them would then increase, not only in the proportion of that third, which is now con- sumed in preliminary expenditure, but in a much greater degree ; for not only the same sum would naturally be expended, which has hitherto been applied in the purchase of literary works, and therefore the sale increased upwards of 30 per. cent; but the reduced price would as naturally EFFECT OF THE LIBRARY TAX. 205 induc« a still greater number to become purchasers, who are now deterred by its present heavy amount. It has been contended, that the University and other libraries cannot purchase expensive books, and therefore the tax does not injure the sale. Whatever may be the case with respect to some of the minor colleges, it is certainly not so in the case ' of others. ' Several of them, prior to the new construction of the statute in 1812, were in the habit of sub- scribing for copies of 'costly publications : such as Dibden's Typographical Antiquities, • Nichols's Leicestershire, &c. These instances of encouragement, formerly numerous, obviously tended to increase the number of such undertak- ings, but the present law has clearly an opposite tendency. The names of eminent libraries in the list of subscribers, fornied a strong recommendation, and probably contributed to its extension No such inducement can now exist, and in addition to which there is the loss of' profit on the copies which they were accustomed to take. It is a direct tax upon industry. Nothing can be more un- principled than this anomalous taxation of literary property. No other class than the literary was ever proposed to be so taxed; There is, indeed, no instance in which any art, trade, or profession, was ever subjected to such an imposition. It is also an odious restraint upon the'press. We are told by the highest authorities that they anxiously desire to pro- mote the just liberty of ' the press; but then their "just liberty " has a peculiar definition, and whatever is unpalatable is branded with the name of licentiousness ; but apart from these difierences of opinion on the limits to be set to free dis- cussion, we conceive that the present state of the law of copyright, and the library, impost, is a direct invasion of that great palladium of our rights, — a free press; for it cannot besaid to be free whilst its publications are subjected to such grievous restraints and exactions, from* which other produc- tions are wholly exempt. It is; in effect, instead of rendering it free, tolerating only its existerice at a certain price, and under certain odious and oppressive Testraints. It is curious in the course of the discussions on this subject^ to observe the expedients to which the opponents of justice have necessarily been driven. They reason in a circle of injustice and impolicy. The inventors of novel principles in inachinery, or, improvements and new applications of old ones, possess an exclusive property for a short term only. Then it is said, that literary works' ought not to be better protected than those which are scientific. This we mayrgrant, but we say they are neither of them sufiiciently protected. The 206 PRINCIPLES OF THE LAWS. injustice, inflicted upon the one class is not mitigated by its imposition on the other. In taking the account, however, of the evils endured, both by authors and scientific inventors, it must be stated that the latter are not compellable to present eleven copies or specimens of their mechanical inventions or improvements. To make the cases precisely correspondent, in the measure of injustice, the man of scientific genius should present the Royal Society, the Society of Arts, and other institutions in the metropolis or the provinces, with eleven specimens of every instrument or engine, however expensive. And we ask what would be thought by the British public of the modesty of that man, who should venture to propose an enactment, to the effect that eleven of all future implements and machinery, from a penknife to a steam-engine, should be deposited in Somerset-House ? We presume he would be set down as a curious specimen of the knave and madman, who ought neither to be trusted, nor left at large. It would be too much to say that no invention, nor any improvement, will take place, if these restrictions and acts of injustice are continued ; for we well know that genius is irrepressible, and will force its triumphant way, in spite of and amidst every obstacle ; yet we also know that the liberal feelings of the public are decidedly in favour of aflfording ample justice to men of learning, ingenuity, and talent ; and it is not enough to say, that literary men still devote their days and nights to intellectual labor, notwithstanding the disad- vantages by which they are surrounded. We feel assured that the laws must be altered, whenever their impolicy and in- justicy are sufiiciently made known by those who are without the walls of parliament, because at last it must be taken up by those who are within them, if they wish to promote and maintain that influence and character, which ought to belong to the members of an enlightened senate, the representatives of a free and intelligent people. The law in its present state is a disgrace to the country. It is an anomaly in our legislative system. Let men of letters be placed, at least, on equal terms with the commonest arti- zan. We think the tax on the " raw material " of paper might be diminished ; but if that cannot be done, surely the manu- factured article of books should be free from impost. Every principle of political economy demands it, and the more espe- cially, when it is recollected that the tax is not imposed for the benefit of the state or the community, but in favour only of chartered bodies, whose wealth and immunities are already sufficiently abundant. If our literature be equal to that of the continental states; EFFECT OF THE LIBBARY TAX. 207 let US imitate their example : let us cease to injure and really encourage those to whom we are indebted for our eminence. If it be inferior, let us lose no time in removing every impedi- ment from its way, and introducing every means that can fa- cilitate its improvement, and promote its rise : let not Great Britain be the country in which literary property is burthened more oppressively, in a six-fold degree, than any other nation of the civilized world ; rather let her abolish the imposition altogether, and surpass even the republics of the new world, as she undoubtedly might the monarchies of the old. NOTES, COMPRISING AUTHORITIES REQARDIKG THE LIMITATION OF COPYRIGHT, AND THE LIBRARY TAX. ABEANGED CHRONOLOGICALLY. ||Ol^0< In support af the views which iiaye bfiea taken of the injus- tice ajad impolicy of the laws, we (kem it material to intro- duce some statements and reasoniiigs ta^en from different sources, all of which importantly tend to confirm the positions in the text. In making the selections for thi^ purpose, we shall ar- range them, in conformity with the general plan of the work, 1st. into the authorities which rela,te tjp the eiipt.e^i^ioin of tjte term of copyright, and 2dly, tjiose on ^ subject of the Library Tag:. 1. OZV EXTENDING THE DURATION OF COPY- RIGHT. MiiTON, 1644. Among the glosses Which were used to coIout this ordinance against unficensed printing, and make it pass, was the just retaining of each man his several copy ; which, God forbid, should be gainsaid. For that part which preserves justly every man's copy to himself e, or provides for the poor, I touch not, only wish they be not made pretences to abuse and persecute honest and painfull men, who offend not in either of these particulars. Carte, 1735. It cannot be amiss to obviate an objection founded on a mistaken notion, as if this privilege for old copies concerned only the book- sellers ; whereas, in fact, many authors are greatly concerijefi iij it. Mr. Anstis and Mr. Browne Willis have printed their very laborious p2 212 NOTES. collections at their own expense, and still retain the property thereof. It would be hard to let these gentlemen undergo the mortification of seeing their works (like those of Sir W. Temple) pirated and printed in the same letter and paper as Tom Thumb, besides the loss they would suffer through the hinderance given to the sale of their books, great numbers of which still lie upon their hands, and will do so for ever if they may be printed in weekly parcels, an evil which can never be effectuaUy prevented but by securing the property of old copies as well as new, thereby depriving pirates at once of all their materials. The property of many books still remains in the heirs of the authors. Sir W. Dugdale left by his will the copy of the Baron- age of England, and the right of reprinting the same (the best and most useful of all his works, and which points out more records ser- viceable to gentlemen, and relating to their estates, than all the books yet published in England) to his grandson Mr. W. Dugdale, whose son, Mr. John Dugdale, hath, in consideration of a sum of money, by a legal conveyance, assigned .the same to me. In order to a new edition and continuation of that work, whick Sir W. before his death had carried on to 1691, I have made various searches, and put myself to considerable expense, and particularly I have now by me receipts for sixty guineas, which I have paid for transcripts of Pipe Rolls re- lating to antient barons from King Stephen to Edward II. and as there are many mistakes in the marginal references, &c. in that work, they must be all examined anew with the records from which they were taken, the labour and expense whereof must be immense, and unfit for any body to undergo without a full security for his property in that old copy. It doth not lessen the unhappiness of authors to be wounded through the sides of booksellers, or out of prejudice to this last set of men (who, after all, have fairly purchased what right they have in .such copies, and lose by some what they gained by others ;) but it is certain that more authors are concerned in this pri- vilege to old copies than is generally imagined, and were there fewer, they might still hope for such a privilege, if it be reasonable, in this case, to follow the Roman maxim in another— e reward of the labour. It is he who, by demanding this reward, as- serts his right to it. The same act cannot be the assertion of a right, and the abandonment of it. The act of publication for money is an assertion of the right of property ; therefore, it is not an abandon- ment. Again, publication is not merely a declaration of the intention of the author to appropriate the profits of the work to himself, but it is the only means of making it profitable at all. Until published, the world can derive from it no intellectual improvement, the author no pecuniary advantage. Publication is the necessary act to make the work useful to mankind, and beneficial to the owner. To discourage learned and ingenious men from benefitting the public by their worksj is impolitic and unwise. To construe the necessary act by which alone a literary work can be rendered profitable, to be destructive of the right of the author, is not only harsh and cruel, but unreasonable. PERPETUAL COPYRIGHT. 225 Previous to publication, the work is the property of the author, and of course he is entitled to its profits. But it can only be made .pro- fitable by publication . If publication, then, be a forfeiture ofithe aright of the author in his own production, the very act which is necessary to render the property a source of profit, divests him who is entitled to the profits of his right to enjoy them; which'is absurd. It was thought necessary to urge thus much, to prove that a man had a natural right to the profits arising from the productions ofi hits niind, and that this right was not abandoned by.' publication. .These points being established, it follows, that literary .property' is' not created by the law; but restrained and limited.. The' right to this species of pnoperty is a natural right ; and as no natural rightshould be abridged without good cause, it behoved the advocates for- the present law to show that good cause existed for its enactment. Now, what is the pretence usually set up to justify the law in its non-protection of the rights of literary men ? It is this; that if copy- right were made perpetual, aiithors, or their representatives, would fix an unreasonable price upon books, and . the public would thus be deprived of the benefit of cheap editions of valuable works; There is no reason to suppose that this would be the case. A literary pro- prietor would find, as the bookselling trade now do, that his interest would be more promoted by a small profit, upon a rapid and extensive sale, than by a larger profit upon the slow sale of a smaller number. Besides, if he were so far blind to his own interest as to fix such a price as should nearly withdraw his work from circulation, the -public could rarely be injured. 'Works of imagination might, indeed, be thus suppressed, but here the evil would end. All historians must relate the same facts. The phenomena of nature are open to all eiiquirers. The principles of art are not the inheritance of a single individual,' but are possessed by numbers. If, therefore, the imbecile cupidity of authors or publishers suppressed certain works of history or science, others, as good, would make their appearance, and by being sold at a moderate price, would obtain universal circulation. Even if the want could not be readily supplied, the evil is not irreme- diable. The proprietor would not be allowed to demand for his books a price that was altogether unreasonable. He who ofiers bis goods for sale, must be contented with a market-price. He may demand the Iiighest market-price, but he has no right to more. In this principle is the protection of the public from imposition: and even if the worst came that possibly could, and the proprietor were to refuse to reprint his bookj when necessary, the fact of its having been a certain niiriiber of years out of print, might, without injustice, be regarded as an abandonment of the property, which would then become common. No one would be able to recover damages for infringement of copy- right, without -the verdict of ajiiry ; and he who seeks redress for an injury done to his property, must be prepared ' to shew that he has taken reasonable care of.it'. Tlie objection to the. rights of literary property, which has just been answered, proceeds, it should be observed, hot upon fact, but upon vague and unwarranted suspicion. ■ In effect, it says, 'f we darie not Q 226 NOTES. trust you with ydur rights, because we suspect that you would make an ill use of them.'' Why iftouM this be suspected ? No good rea>- son can be assigned why the descendants of literary men should bfe less honest or less liberal than other persons. Surely, then, the ob- jection is of a most ungracious character. If it be desirable to encourage literature in a state, the: easiest, as well as the most equitabki way of doing it, is by securing the rights of literary property. An author has sometimes been compared with the inventor of an ingenious machine. The latter must secure the property of his invention by a patent, and it can be thus secui-ed only for a limited number of years. It has been argued, that an author stands in the same situation as the inventor of a machine, and is only entitled-to the same protection. Now, in the first place, the ingenious mechanic has a better chance of immediate success. If his machine tend to shorten labor, or to perform it with greater accuracy, its effect will be immediately perceived, and within the limited term secured by a patent, he will, most probably, be remunerated. With regard to literary works, (more particularly when the subject is a heavy one,) this probability does not exist. Secondly, the cases are not parallel j because the imitation of a machine is not the original machine itself, but only one resembling it. The wood, metal, or other matierials constitute the machine. There is nothing else necessary to its existence. The second machine is, therefore, not the same as the first. It is a perfect imitation of it, and that is all. Whereas the pirated book is the identical production of the author. It is the very same in substance with the genuine book ; because its doctrines, sentiments, ?ind language are its substantial and essential Tparts. The paper and ink are only accidents. They consti- tute the vehicle of conveyance from the mind of the aiithor to the mind of the reader; but they are not of the substance of the thing conveyed. Lastly ; is it quite certain that ingenious mechanics are, under the existing law, sufficiently protected? If they are not, is it meant to defend one wrong by another ? Men will be industrious when the fruits of their industry are secured to them ; but, when this is not the case, why should they toil ? Why should any one devote himself to any great literary labor, which will require the sacrifice of the better part of his life, when the reward of his labor must cease with his life, and he caT> preserve no portion of it for his family ? Will he not be tempted to apply himself to the production of works of temporary interest, which require little or no mental exertion, and which will immediately become a source of emolument ? The ten- dency of the law is, therefore, injurious to sound literature, by dis- couraging men from undertaking works of great dignity or lasting utility, and seducing them by the prospect of gain to become mere manufacturers of the trashy production of the day.— Works of standard merit not only require immense labor in their production, but they make their way slowly in the world. Years generally elapsb before they will even repay the expences of publication ; and, when their value begins to be known and appreciated,— when their reputa- tion is extending, and they are about to become as valuable in a PERPETUAL COPYRIGHT. 227 cpmfl^ergijaj as in an intellectual point of yiew, the l^^w steps in tp snatch frotp the children the bread for whii^ the fatl^e^ h^s JUhpfjed^ and to consign to penury the posterity of him who has given his days and nights to his fellow men, in administering to their most refined pleasures, and promoting their npble^tv interests. This is not a representation of the mere possible effect of Jhe lajv, A^in and again Kas It occurred, th?t the famjlie.s of literary men have languished in iijdigeftce, while oithers haye heai enjoying the prpfil^s liyhioh in jjature, reason, a^d justice should have been theiw- About the .in jddle of the last aeinlury, the ^rand-daughfer of Milton \y]sis Sp {^x ireduced, that Dr, Johnson ^plicited and qhtain^^ ftom, Ga,rriek ^ c|i9f^able benefit fpr her at 'Drur.y X^ne Theatre. Wj;tbjn a , .y^ery ^^w years, a member of thef^pai^y of l^hakspeare wa,s w^prking as a day- laborer, in%'A4s^i7ing the rpads of Warwickg.l^re. AfP these thing? as thiey should te ? Is it right that thejiatM{drep''^®?S^>&*'^* r' men of genius shpuld be left to. starve, Avhije strfingers are arc(assing fprtunes from works^ upon which ,neithe,r ttey or their fathers ,haye labare.d? The lives of literary men aire to.o often passed athidat dis^ppqintdekept, and penury ,_and .gp.rrow. Would ,it npt be a consola- tion ^ojh!^ t». reflect, that though the reward of their labors was ppstpp'ned, and .in their own persons they should never enjoy, it, .yet that posterity would do them justice, and would not only spothe tfciir memory with f^me, but jep.ay tfaeir descendants with wealth.' Would it not add to the..gratifieatipn pf him who enrichejl his library with a copy of Sh.akspe^are, pr pf Milton, to know that; he was contributing to the bepejS,t of ttie fa^njlies of the illustrious men, whose names are the proudest ^n the ..annals of the.ir country's glory?. In J^rance, the, term pf copyright is fifty years. In Germany, it is perpetual. \ii those (jountries there is no want pr b'ppks. On the contrary, they abpund. Dr. Jphnspii oljserved long ago, that tl)^ French had abookupon every subject. In tjermany, tliis is even mote extensively. the, fapt. It is not found, either, that the proprietpxs put upon thei*" works a prphibitory .price., Books are, in ^thpse .cpun.tries, remarkably cheap. , 4 comparison pf Jihe state of literature in ,Fra.pce and Oernnany;, with tfaestate of the law, will strikingly illustrate the truth of the homely adage, that "honesty is the best policy." While authors in this country have been deprived by the statute law pfjJie.fuUprpper^ty. qf th.eir.wprkSi-they have been called upon to contribute tp ,^he pul).lip , cpnye,li;ence by presenting a considerable number of .cqpie^ tp public. libraries,. In Jarge and expensive works, this. js a heavy drawback upon their prpfits. It may possibly makp the entire difference between gaining and losing. Jt is^ , at any .rate, bptb unjust and cruel, at , the same '. time, , and by .the same act, tp. impp^e a heavy, tax, apd to diminish, the means.of paying it. Let the laws relating to literary property then be anaehded. If it be not thought advisable to render copyright perpetual, let the term be considerably extended. Let not the literary laborer be the only one excluded from the full enjoyment of the beneficial produce of labor. Rarely, indeed, can he enjoy.it himself j but let him bequeath it as an estate to those he loves, and when he shall no longer be sensi- Q 2 228 NOTES. ble of our attention or our neglect, let us pay his children, and his children's children, the debt of gratitude which we owe to him. Library of Useful Knowledoe, 1898. Commencement of Printing. The art was commenced soon after the murder of Henry VI., and carried on during the remainder of the reign of Edward I V;, and the reigns of Edward V. and Richard III., when the minds of those most likely and able to encourage printing were seldom free froin alarm for their own safety, their time much occupied," and their means necessarily reduced by the distracted and wasted state of the country, and when little attention or money could be spared for' literature. England at this period was much behind France. Caxtou was obliged to have recourse to the French language for most of the works which he printed. It is supposed that Caxton returned to England about the' year 1472, and brought with him the unsold copies of the translation of Recueill. His first patron was Thomas Milling, Bishop of Hereford, who held the abbotship of St. Peter's, Westminster, in commendam. Caxton took up his residence, and established his printing-office, either in the immediate neighbourhood of the abbey, or in one of the chapels attached to it. That Caxton introduced the art of printing into England, and first practised it here, was never doubted till the year 1642 : a dispute arose at this time between the Company of Stationers and some per- sons, respecting a patent for printing ; the case was formally argued; and in the course of the pleadings, Caxton was proved, incontestably, to have been the first printer in England. Soon after the Restoration, a book was discovered in the public library at Cambridge, the date of which was Oxford, 1468. The probability is, however, that the date of this book is incorrect, and that it should have been 1478, not 1468 j this is inferred from its being printed with separate fusile metal types, very neat and beautiful, from the regularity of the page and the ^pearance of signatures J and, moreover, from the fact, that no other produc- tion issued from the Oxford press till eleven years after 1468, it being highly improbable that a press connected with a University should have continued so long unemployed. Between the years 1471 , when Caxton began to print, and the year 1 540,, the English press, though conducted by industrious, and some of them learned printers, produced very few classics. " Boethias de Consolatione," in Latin and English, three editions of " ^sop," "Terence," the " Bucolics" of Virgil tvidce, and " Tully's Offices," were the only classics printed. From Cambridge no classical work appeared; and the University of Oxford produced only the first book of " Cicero's Epistles ;" and that at the expense of Wolsey. LIBRARY TAX. 229 II. ON THE LIBRARY TAX. The comments of writers on the subject of the library tax are principally to be met with subsequently to the year 1812. The additional remedy, in the shape of fine and forfeiture, for pirating copyright, was confined by the statute to books registered at Stationers' Hall ; we find therefore no complaint of the exaction where the protection of the penalty was sought for. When, however, it was determined that copies of all books, whether registered for the sake of the protect- ing penalties, or not, must be delivered, a general feeling was very naturally excited against the exaction. Mr. Shakon Turner, 1813. As the delivery of copies cannot be contended for, as a matter of right, independent of the statute, the expediency of the delivery must rest on one of the following grounds : either that it is unjust to take away from the libraries a benefit which they have so. long enjoyed ; or that it is useful to the public that it should be continued. On the first of these arguments it may be observed that this is not a benefit which these libraries have actually enjoyed.' They have, from the time the act of Anne passed to the present day, received copies of no books but such as the proprietors chose to register ; they have never received copies of those whiqhwere not registered. The registered books for at least forty or fifty years were but a small proportion of those which were actually pubhshed. Therefore the question really is not whether the libraries shall be divested of a benefit which they have long enjoyed, but whether literature shall be subjected to a burthfen which it has never yet borne. It cannot be unjust to divest them of a more theoretical right, grounded solely on an enactment which was not founded on any right, rather than to intrench on that sacred right of property which apper- tains to all individuals ; for in considering this subject no one ought to lose sight of the important principle that the rights of private property are sacred, and ought never to be intruded upon without the last necessity. The salus publiea is an imperious ' dictator, to which every well regulated mind will cheerfully bow: but no considera- tion less than the necessity of supporting the general welfare can sanction the intrusion upon individual property. Unless this is upheld as a firm and sacred principle in legislation, all personal security is endangered^ and one of the best foundations of public prosperity is shaken. — If this principle ought ever to be maintained in one case more strictly than in another, it should be in that property^ and towards those individuals who have most signally benefited society. In this respect the author yields to none. England, as it is, compared 230 NOTES. with England as it was, before literature was cherished in it, demon- strates the blessings which it owes to its intellectual benefactors. But in taking eleven copies of every work compulsorily from its author or propridtdr, his right bf property is directly invaded; it is invaded as completely as if it were to be enacted that a silversmith should give to these public bodies eleven silver candlesticks. So long as the lact of Anne was construed to enforce a delivery of those copies only which the owner chose to register, the objection would not so fully attsifch. The proprietor had thfen an dption — of that he is now^deprlved, atid therefore the compillsory delivery of eleveri copies becomes a direct infringemeht On that right of property which ought never to be violated, unless the welfare of the nation requires the satrifice. Does the salus publica make this violation necessary ? Does it exact. this sacrifice ? Let the extent of this sacrifice be first considered. The. act of Anne directs the best paper copies to be delivered. Now the actual amount of eleven best paper copies of the following eleven v/orks would, at their selling price, be £5,698: Is. £ s. d. 11 Daniel's Oriental lSfcenery> 6 serieSi 200 guineas - 2,310 II Lord Valentia's Travels, 3 vols; lal-ge^t paper, 50) l ■ guineas (N.B. only 50 of such printed) - ) • ' 1 1 Salt's Viewsi 26 guineas 300 6 11 Bloomfield's Nbrfolk, 11 vols. 4to. 22 guineas (N.B. 1 Ohly 12p 'copies printed ; 3 copies only printed on > 254 '2 largfe paper, worth 100 guineas each) - j 11 British Gallery of Eiigravings, lai^e paper - - 1,065 13 6 11 Costumes of the World, 7 vols. - . , 11 Drydeh's Works, 18 vols. - - - 11 Sit R. Hoare's Ancient Wiltshire (only 60 printed) - 11 Giraldus, 2 vols. 4to. . - . . 11 Perry's Conchology - . . -. Numerous lists might be added to these. We will only mention a few striking individual cases. A new edition of Wood's Athenae Oxonienses is preparing with additions. The price of each copy of this, on the best paper, will be seventy-two guineas. If the editor be compelled to give away eleven copies of this work, it will be a loss to him of ^830. Anew edition of Dugdale's Monasticon is preparing with additions. The subscription price of this on the best paper is 130 guineas for each set. This will be a very expehsive work to the reverend gentle- man who has undertaiken it, from the number of plates which it will contain. If he should be compelled to give eleven copies of this, it will be a loss to him of £1,500. TheRev.i'. F.Dibden is well known to be publishing a new edition c(f Ames's Typography, with many valuable additions, the fruit of his 532 2 138 12 207 tS 127 1 184 W 6 5,698 1 fl LIBRARY TAX. 231 active and unwearied researches. This work will be completed in six volumes, of which the price is six guineas each volume for the best paper. The loss to him, if he must give eleven copies, will be above £400. pleyen copies of Mr. Nichols's History pf Leicestershire would be tp him a loss of ^288 : 15s. Eleven copies of his "Bibliotheca Toppgraphica Britanni;:^," ten volumes quarto (of which in the whole only 250 copies ■I,436 : 0s. 3d. Another -highly respectable publisher 'has stated, that on jthe average of his publications for the 'last ten or twelve years, the eleven copies .would have been to him a taxation of above £300 a-^yea*, exclusive of works in which he was but a partner. If l^ere had been time to have collected from every publisher the amount of the sacrifice which he would have made b^ the delivery of deven copies of all books published by him, the aggregate of the whole would have surprised the reader. But from these two instances the total amount of eleven copies of every work, even on common paper, that is published in Great Britain and Ireland, may be con- jectured ; and it may 'be fairly asked, if a taxation so heavy as this ought to be imposed on the authors and owners of literary property ? A few instances will show how heavy the burthen will 'be 'on the common paper copies. The delivering of eleven copies of the follow- ing fifteen works, on common paper, would have cost the publishers £^i699 : 8». at their selling price. 232 NOTES. £ s. d. Johnson's Poets, ^1 vols. 8vo. by Chalmers - - 275 British Essayists, 45 vols. ISmo. - - " - 115 10 Novelists, 50 vols. iSmo. - - - 138 1^ Bowles' Pope's Works, 10 vols. 8vo. . - 57 15 Wakefield's Pope's Homer, 9 vols. 8vo. - - 44 11 Drydbri's Works, by Scott, 18 vols. 8vo. - - 103 19 Swift's Works, by Nichols, 19 vols. 8vo. 99 Camden's Britannia, 4 vols, folio. - - - 184 16 Q Miller's Gardeners' Dictionary, 2 vols. 8vo. folio.- 161 14 BufFon's Natural History, 20 vols. 8vo. - - - 132 Aiken's Biography, 10 vols. 4to. - - - - 173 5 Inchbald'sTheatre,farcesandmodernTheatre,42vols.l8mo. 121 16 6 Somers's Tracts, 10 vols. 4to. - - - - - 346 10 Harleiari Miscellany, 10 vols. 4to. - - 381 3 State Trials, 21 vols, royal 8vo. - - - ^ 363 16 6 ,£2,699 8 Those gentlemen who have attended to the nature of the publica- tions that perpetually issue from the British press, will know that this list might be made very extensive. So that it is clear that to emanci- pate literature from the delivery only of the best paper copies, will not be a sufficient relief. Unless Parliament also extend the relief to the common paper copies, the burthen will still be severe, and will fre- quently operate to prevent the publication of many works, on which the chance of their sale is uncertain. Sir Egerton Brydges, Bart. M.P. 1818. 1 am bound to ask (though some of the public bodies may affect to repel the question indignantly) what do they do with this indis- criminate mixture of expensive and useful works and contemptible trash ? Where, do they deposite them ? Do they keep them in or.der, ? And do they bind them ? If they do, would not the funds expended in paying the binder, the house room, and the librarians for thus dealing with the mass of rubbish, be more generously and.. more usefully expended in paying some small portion of the price ;of . the valuable works? If they, do not, what becomes of the alleged. color of their claim — that of public use ? The copyright act, as now put into force, is the most perfect instru- ment of collecting and disseminating all the mischiefs flowing out of an abuse of the liberty of the press, which human ingenuity has ever yet contrived. Thus is brought together in each of eleven public libraries dispersed Jn the three great portions of the empire all that is silly and ignorant, all that is seditious, all that is lascivious and obscene, all that is irreligious and atheistical, to attract the curiosity, and mislead the judgment and passions, of those for whose cultivation of solid learning and useful knowledge these gratuitous supplies are LIBRARY TAX. 233 pretended to be enforced. ■ Nothing short of such a law could have brought many of these contemptible, disgusting, and contagious piibr lications out of the obscurity in which they would otherwise soon have perished. Here they remain registered in catalogues preserved on shelves and protected for posterity, with all the care and trustiness of public property. How are they to be separated from the valuable matter^with which they are intermixed ? To whom is such a discretion to be confided > If once they are allowed to niake waste of what they do not want, where is it to end ? Abuse will creep upon abuse : from waste it will come to gift or sale ! But if every thing be kept, the room, the trouble, and the expense will soon become overwhelming. Already the libraries begin to complain heavily of the inconvenience. ' In thirty years the united catalogues of the books thus claimed by the eleven libraries will amount to ten folio volumes of 600 pages each, eighty-two articles in a page. The whole number of articles will not be less than half a million. Evidence before the Committee of the House of Commons, 1818. Mr. Owen Rees. Have the goodness to inform the Committee what sum has the delivery of the eleven copies, under the copyright act, cost your house since July, 1811 }■ I presume you mean from the date of the passing of the act in 1814. From the nearest calculation we are enabled to make, the actual cost of ; the books delivered upon the whole, since the passing of the act, is about £3,000. Have you, in consequence of^the burthen of this delivery, declined printing any works which you would otherwise have undertaken ? Yes-; we have declined printing some work?, particularly a work of Non-descript Plants, by Baron Humboldt, from South America j being obliged to deliver the eleven copies, has always weighed very strongly with us in declining other works. Have the libraries demanded all books promiscuously printed, or have they made any selection ? Eve^y book entered at Stationers' Hall has been sent to them. No selection has ever-been made ; nine copies of all books have been demanded, and eleven of all, with the exception of novels and music, which have not been demanded by two of the libraries. What duty do you pay upon paper ? The duty for paper used for printing is from 20 to 25 per cent, on the value of the paper, . , Was it not usual, before the passing of this act, for the public libraries to subscribe to, and frequently to purchase, learned and very expensive works ; and did not authors calcula,te on the Universities as probable purchasers of the work they were about to bring forward ? They' certainly have looked to the Universities as, subscribers or pur- chasers of these books ; and upon examination I find it was. the custom of some of the libraries, who can claim books under the act, to sub- 234 NOTES. scribe to expensive works, and that within fourteen years after the passing of the act of Anne. Have not some valuable books been discontinued from want of sufficient subscribers ? Yes, there have been important works, which have been abandoned for want of sufficient encouragement :— , Rev. Mr.Bourchier's Dictionary of Obsolete and Provincial Words. : Dr. Murray's (the Editor of Bruce's Travels) History of Lan- guages. Translations of Matthew Paris, and other Latin Historians. William of Malmesbury only published. One more has been translated, but not published. An extensive Britislv-Biogr»phy, arranged in Periods. A consi- derable portioff of this work has been written by some of the first writers of the present day. The collected Works of Sir Isaac Newton. Hearne's (the Antiquary) Works. Collections of theUrish HistO;rians. Bawd wen's Translation of the Doomsd^y-Book, after j;jie Trans- lation was finished, and one volume and a half printed. What do you apprehend to be the effect of the delivery of these copies to the public libraries ? The effect I conceive to be that they interfere with the sale of books from persons who would otherwise be purchasers, having access to the libraries, and being enabled to borrow the books, some of them being circulating libraries, as is the case with the Advocates' Library at Edinburgh, and the Aberdeen Library. From Aberdeen, I have had complaints from booksellers that they find their trade considerably injured by such books 'being in circulation, and that formeriy they supplied the King's College with books to a considerable amount; that their accounts at present are a mere trifle, and that some of their books have been sold to a circu- lating library. Can you state in any given period What you have paid for adver- tising books i In the last twelve months we have paid for advertising in newspapers alone £4,638 : 7*. Bd. Do you know what proportion of that goes to Government } I should conceive about £l,5G0 of that goes to Government. In poiwtof feet, according to the act in 1814 having been passed, 'have you not heen obliged to deliver some very expensive works of old English titerature, which otherwise would not have 'been demaud- able? W-eiiave. Has not that demand had an effect, among other reasons, of in- ducing you not to embark in other reprints of the same nature ? It has. Mr. JlicHAK© Taylor^ What description of books do you apprehend to be principa'Hy affected l)y the delivery of the eleven copies to the public libraries? State the . different kinds of bodks that you think are most affected 'by this law. I thirik that aill the most Important works, which furnish the materials for the advancement in the sciences, are those by which LIBRARY TAX, 235 the least is gained ; or I should say, rather the most is lost by those who undertake them; such as recrtrds of experiments in chemistry and other branches of physics. Astronomical observations, such works as Bradley's Observations, and Dr. Maskelyne's, if they had been published at private expense, must have been published at a loss ; because the demand for them is vdry limited, and the expense of printing would be very great. Bradley's Astronomical Observations are published in two volumes, folio, and Dr. Maskelyne's, in four or five volumes. 1 should observe, that all table and figure work costs twice as much as commorf printing, on account of the greater trouble in composing such work. Such works as these furnish all the materials from which the science of astronomy can be advanced. All these works are of infinite value to science, and cost the authors an immense deal of labor, as they are frequently the result of their observations during a great portion of their lives. Elementary, or popular works of astronomy, may be objects of gain to the booksellers ; but no book- seller could be induced to publish the astronomical observations of any gentleman, who might have an observatory of his own, and who might have been making observations for many years. Of malhe- matical works, the most profound are the least likely to attain a considerable sale. A gentleman, whom I have known for many years as one of the most munificent, patrons of science, who has expeiided perhaps more than any man jn publishing, and enabling others to publish, valuable mathematical treatises, 1 mean Baron Maseres, the Cursitor-Baron of the Exchequer, onee told me that the "produce of the whole sale of his Seriptores Logarilhmici; (which is a collection of the most valuable mathematical tracts, reprinted at his expense) did not pay for the binding of the ^eserttation-copies Wfefeh he gave away. Mr. John CiiArkb. Have you lately declined the publication of any iaw-books with the improvement of'notes ? I ba,ve. What are they ? One of tiiem was Mr. Anstruther's Reports. Any others ? Not immediately that I recollect. I have made re- prints of law-books, without the addition of notes or improvements. Why did you decline the publication of them with improvements? Because if I had added the notes, I should have been necessarily obliged to deliver the eleven copies to the public libraries. If you teierely pubKshed lihe r^wiM of any book without addition or improvement, you would not be liable to deliver the copies to the Universities ? I should not^ reason? I should in soiiie instances. Mr. Robert Bajldwin. What do you apprehend *o have been the effect of the regulation for thte delivery ©f the eteveli copies to the public libraries, upon the bookseftling trade in general ? 1 think it has been a heavy loss to ithe bookselling trade, and, in some instances, it has operaitefl to ehedk 236 NOTES. the publication of books, and particularly to prevent additions and improvements to old editions of books. In the demand made by the public libraries to the bookseller, has any regard been paid, either to the utility of the respective book? demanded, or to the books previously delivered by the publisher ? None at all ; they have been taken indsicriminatelyi I should suppose that if a sum of money was allotted to the Universities to purchase books, they would not purchase one in ten of what are published, perhaps not one in twenty. Do you think that the depositing of the eleven copies in these public libraries, has any tendency to take away private purchasers ? Certainly, I think it must. Does it not, in your opinion, supply gratuitously many people who would otherwise be purchasers ? I should think it would. Do you conceive the evil is to be at all counteracted by any sup- posed notoriety given to those publications, by the depositing of such copies in the public libraries ? Not by any means. Do you conceive that your publications acquire any advantage by any such supposed notoriety? We do not consider the supposition of notoriety arising from the depositing, of the books, to be well founded, or productive of any advantage j if jve did, we should send the books to the public libraries without any compulsion. Mr. John Murhay. Did you not publish the Costumes of various Countries ? Yes. Was that an expensive work? It was very expensive. Should you now hesitate in the publication of such a work, know- ing that you would be compelled to deliver eleven copies to the eleven public libraries ? Certainly I would. Were you not concerned in the publication of the Harleian Mis- cellany, Xiord Somers' Tracts, and Piers Ploughman's Visions ? Yes. Would you, knowing that you are compelled to deliver eleven copies of all works, be disposed to engage in the publication of such books ? In the publication of Piers Ploughman's Visions, I think I should not have engaged in it, if I had to deliver the eleven copies ; but as to the other two books, it might, perhaps, be matter of consi- deration. But would the delivery of those eleven copies make you hesitate? Certainly ; the number to be printed being so limited, even of those, and the expense of the Harleian Miscellany and Lord Somers' Tracts so great, I think I shotdd hesitate. The wholesale price of these eleven copies would amount to a very large sum ? It would be a very serious object. What may be the amount of the booksi which you may have delivered at Stationers' Hall since the passing of the Act of 1814 ? The amount of the sale price to the public is about £1,700, and as those books had a very swift sale, I consider that I am the loser of that sum, deducting 25 per cent., which would be the sum at which the greatest part of those works would hive been sold, I would deduct about £430, the whole loss then would be about £1,275. LIBRARY TAX. 237 Do you not consider the compulsory delivery of eleven copies of every book that is published, as a very, heavy tax on those who spe- culate in the publication of books, in addition to the very high duty on paper and advertisements ? . Very much indeed.. , In making the demand, do the libraries omit the reprints of such works as they may already have in their libraries, or is their demand a sweeping one of every book entered at Stationers' Hall, whether it be a reprint, or an entirely new book ? According to my observation, they make a sweeping demand of every book. Did you not publish Mr. Duppa's Life of Michael Angelo ? Yes. Was not that a work in which [the delivery of the eileven copies would have been a great injury and inconvenience to you ' Yes. You also published D'Israeli's Character of James the First? Yes. What number of that book did you publish ? I published 250. After the sale of the whole of that edition, were you not obliged to buy up or collect some copies of that work, to make up the eleven to be delivered to-'^the public libraries ? I was. Upon the whole, you consider the gratuitous delivery of eleven copies to the public libraries as a great grievance ? Yes. Mr. William Daniel. Has the act, directing the delivery of eleven copies to the public libraries, had any effect upon any publications whiqh you have made, or which you had intended to. make ? Checking many. Will you be so good as to state what effect it had upon you indi- vidually ? It has prevented the continuation of a large folio work, intituled Oriental Scenery. It has prevented also a reduced edition of an African work, another of Ceylon, "A Series of Scenes and Figures, illustrative of the Customs of India, and of Persons and Animals pe- culiar to that Country." 1 believe these are the chief works which the act has checked me in proceeding with. Mr. William Eernabd Cooke. Are you not publishing a work upon the ruins of Pompeii ? . I am. What would be the price of a complete copy . of that work ? A complete copy would be sixteen guineas, and the price of the copies upon India paper 32 guineas. Is that the retail price? Yes ; the retail price to the public. ' Then what will be the amount of eleven copies at the retail price ? £■^01 : I'is., because the finest copies are claimed by the British Museum. If the act of 1814 had not passed,|should you have expected any of the libraries to have^been subscribers to the work ? I certainly should, because the British Museum had purchased the first edition of the Thames, and have discontinued^purchasing any other work sii^ce. Has the delivery of the eleven copies, in your opinion, operated to discourage such*publications ? Most certainly. Had you any hesitation in undertaking the work of Pompeii ? I certainly had, inconsequence of those eleven copies. 238 NOTES. Mti JosjiPB Harding. Are you a bookseller ? Yes. And a partner in the house of Lackihgtsn, Hughes, Harding, Mavor, and Jones, in 'tiiisbui-y-square? Yes. Are you at present engaged in the publication of a-ny works of considerable expense? Yes. • What *brks are you publishing of that description ? We are pub- lishing an edition of Dugdale's MonaSticon Aiiglicanuin, in four or five folio volumes ; Dugdale's Histoty Of St. Pasal's-Cathedral ; Por- traits of Illustrious Personages of Great Britain, in two folio volumes, with 120 Portraits and Memoirs ; Ormerod's History of Cheshire ; Wood's Athfeiise Oxonietisis, in six volumes quarto j they are the prin- cipal works we are publishing at this time. What will the delivery of eleven copies of these works amount to? The delivery of eleven copies of these works will amount to £2, 198 : 14s. Can you state the compardtlve prices of English hooks printed in London, and the same hooks printM abroad ? I have the prices of some English books, printed on the Continent which may throw light upon that question : Gihbon's Miscellaneous Works, with his memoirs, printed at Basle in seven volumes octavo, are sold retail for twenty- five francs, which amounts to about a guinea. The price of the London edition of the same book' in five volumes octavo, is .£3 : 5s. ; Hume's History of England, from the Invasion of Julius Caesar to the Ilev6lution in 1688, published in twelve volumes octavo, is sold at forty-five francs retail price, which is about thirty-eight shillings ; the price in London is =£3 : 12s. small jiaper, and ^5 : 12s. if printed on large paper ;' Robertson's History off Scotland, published in three octavo volumes, is printed, and sells for twelve francs, about ten shillings, the price of the London edition in three octavo volumes is £1 : Is.; Roscoe's History of the Medici Family, published in four volumes octavo, is sold for sixteen francs, about 13s. 4.d., the London price is £l : lis. 6d.; Pope's Works, with notes by Warton, published in nine octavo volumes, are sold for twenty-five francs, about a guinea, the London price in ten volumes octavo is five guineas ; the price of Johnson and Stevens's Shakspieare, published in twenty-three volumes octavo, with sixty plates, is sixty francs, about £% : 10s., the London edition, published' in twenty-one volumes octavo, without any plates at all, 4s sold at twelve guineas on small paper, and on large paper for eighteen guiri«asi Have you declined publishing any works from the pressure of delivering eleven copies, besides Mr. Ruding's " History of the Coinage ?" Yes, we have. Is there any inconvenience in stating what 'they are ? We have declined republishing Alexander Barclay's "Ship of Fools,'' a folio volume of gre he will be more than commonly inquisitive to learn something of its historyy—when and by; whom it was designed, builtj and fitted up. — On this, and on all other points, he is left to ruminate, and probably i draw erroneous conclusions, for no information is afforded ; and we are credibly informed, that the King's architect, who has just published these prints, was induced to avoid giving any letter-press to save himself from the unjust tax of pr^enting eleven copies of a twenty guinea volume, or throwing away 22Q, guineas in copies, but one of which (namely, that to the British Museum) is purely devoted pro bono publico — the only excuse which could sanction such an appropriation and sacrifice of private property. Robson's Picturesque Views of all the English Cities (one number of Vvhich has just appeared, containing a very interesting and beautiful series of engi;ayings), is another example of the workings of this oppressive act. In the. prospectus,. the editor, who has been a staunch and zealous-defender of " the rights of literature," says, " The reader will see that it is not proposed to give letter-press with these plates." Historical and descriptive accounts of the cities," treated and illustrated in a novel style,",' wiU be published ; but this- will form a separate and distinct work, in order to obviate the very unjust, oppressive, and vexatious tax of giving eleven copies of an expensive series of illustra- tions to public and wealthy institutions, which ought to encourage art as well as literature, — which have ample funds of their own, and the benefits of which are of a private and exclusive nature j for it cannot be denied, that even the advantages of Oxford and Cambridge are sealed against one half the population of England, that is to say, ag.ainst all who dissent from the established church, and they form a fair half of her population, to say nothing of nine-tenths of the population of Ireland, which consists of catholics and protestant dissenters — Scotland alone having Universities open to all her population. TABLE OF CASES CITED OB REFERRED TO, AND WORKS OR SUBJECTS LITIGATED. Names. Subjects. Page. Aber„e.hyv.H„tcM„s6„ .. { ^^^^^S"'':! i! i! I! i! V. 146 Anonymous flawkesworth's Voyages 130 Anon V. Eaton ■ Private Tietters : . 142; Bach V. Longman . . Music . , . : ,,■ : , 7d Baskett v. University of Cambridge Prerogative Copyright in A-i i Scotch Bibles , 108 bridge v. Richardson > Walcot V. Walker Peter Pindar's Works . . . - 9t Webb V. Rose Conveyancing Precedents 138 West V. Francis . . Engravings 88, 160 White v, Geroch Manuscript Music 138 Wilkins v. Aikin Antiquities of Magna Gcscia 133 Wyatt v. Barnard Repository of Arts ■. . . 75, 136 I N D EX, ABRIDGMENTS, copyright in, 76. pirating, 129, ACTION, for damages for pirating copyright, 164. penalties for pirating, 167. ACT OF ANNE, 21. origin of, 20. ACTS OF PARLIAMENT. See Statutes. ALMANACKS, no prerogative copyright in, 102. America, the library tax in, xii. ASSIGNMENT of copyright. See Transfer, 171. Aston, Mr. Justice, his opinions on the rights of authors, ,1, 4, 9, 10. Austria, the library tax in, xii. AUTHORITIES, on the injustice and impolicy of the laws, 211. AUTHORS, contracts with booksellers, 171 . Baldwin, Mr. Robert, his evidence on the library tax, 23d,x6. BANKRUPTCY, liability of copyright under, 177. Bavaria, the library tax in, xii. BEQUEATHING COPYRIGHT, 176. 252 INDEX. BIBLE. prerogative copyright in English translations of, 107. Blackstone, Sir WilKam, his opinion on the rights of authors, 3. BOOKS, definition of, within the statute, 74. copyright in. See Copyright, 66. selling and importing, 67. pirating, 126. pirating unregistered, 157. law, no prerogative copyright in, 99. BOOKSELLERS and authors, contracts between, 171 . Brooke, Mr. Samuel, his evidence on the library tax, 240. BiiYDoes, Sir Egerton, his opinions on the library tax, 232. CALENDARS, copyright in, 134. Carte, his opinion on copyright,. 211. CASTS. See Sculpture, 84. CHANCERY, jurisdiction of the court of, 168. CHARTS, copyright in, 79. pirating, 162. CHRONOLOGY, copyright in a book of, 134. Clarke, Sir Thomas, his opinion on the rights of authors, 213. Mr. John, his evidence on the library tax, 235. COMMITTEE OP HOUSE OF COMMONS, evidence taken before, 233. report of, 243. COMMON LAW, copyright by the, 6. COMPILATIONS, copyright in, 76. pirating, 132. CONSEQUENCES of the limitation of, and tax on, copyright, 188, 201. INDEX. 253 CONSTRUCTION s of act of Aone, before 1775, 27. Cooke, Mr. Wm. Bernard, his evidence on the library tax, 237. COPYRIGHT, at common law, 5. recognized by acts of state, 12. parliament, 13. ancient customs, 16. duration of, in books, 66. penalties for pirating, 67. of authors dying before the first fourteen years, 68. living after twenty-eight years, 69. cases on duration of, 69. extent of, 74. the places of protection, 67. resulting term in, 73. in engravings, &c. 76. sculpture, 83. prerogative, former, 99. present, 103. transferring, 170. bequeathing, 176. COURTS OF JUSTICE, power over publication of proceedings, 110. , CREDITORS, rights of, over copyright, 177. CUSTOMS, ancient, 16. Daniel, Mr. William, his evidence on the library tax, 237. DEFINITION ofliterary property, 1. of a book within the meaning of the a6t, 74. DICTIONARIES. See Compilation, 132. DIGEST OF CASES, on duration of copyright, 69. on its extent, 74. DISQUISITIONS on the principles and effects of the laws, 181 . DISSERTATION, introductory, v. DRAMATIC WORKS, pirating unpublished plays, 154. representing published plays;, 155. 254 INDEX. Dunning, Mr. his opioioD on the rights of authors, 214. DURATION OF COPYRIGHT, ill books, 66. of authors dying before the first fourteen years, C8. living after twenty-eight years, 69. digest of cases regarding, 69. in engravings, etchings, and prints, 77. maps and charts, 79. ' ' '" sculpture, models, and casts, 84. ENCYCLOPEDIA, 133, 171. Enfield, Dr. his opinions on the rights of authors, 220. ENGRAVINGS, analysis of the statutes regarding, 77. digest of cases, 82. duration and extent of property in, ib. the name and date of publication, 83. degree of originality, 82, 161. libellous, 97. piracy of, 160. the penalties for piracy, 167, 168. action for piracy, 164. limitation of action, 168. evidence, ib. injunction in equity for piracy, 168. transfer of, 170. EQUITY, decisions in before 1775, 27. injunctions in, for piracy, 168. ETCHINGS. See Engravings, 77. Evans, Mr. Robert Harding, his evidence on the library tax, 241. EVIDENCE of the piracy of a book, 165. property in engravings, 166. in suits in equity, 168, before the Committee of the House of Commons on the library tax, 233. EXCLUDED WORKS, from legal protection, 88. FINE ARTS, copyright in engravings and prints, 77. sculpture, models, and casts, 84. INDEX. FINE ARTS contimi£d. maps, charts, and plans, 79. musical compositions, 76. FiSHBR, Mr. Thomas, his evidence on the library tax, 241. France, duration of copyright in, xiii. the library tax in, xii. Germany, the library tax in, xii. duration of copyright in, xiii. GRAMMAR. Latin, crown copyright in, 103. Harding, Mr. Joseph, his evidence on the library tax, 238. Hardwickb, Lord, his opinion on the rights of authors, vii. Hargrave, Mr. his opinions on the rights of authors, 216. HISTORICAL VIEW of the laves, 1. IMMORALITY, effect of, on copyright, 89. IMPOLICY ofthelavps, 188. INJUSTICE of the laws, 188. INJUNCTIONS in equity, 168. INTERPRETATION , of the statutes, 27, 52, 69, 82, 88, 120. INTRODUCTORY DISSERTATION, v. Ireland, statutes relating to copyright in, 36, 65. JUDICIAL PROCEEDINGS, publication of, 110. JUSTICE, works injurious to public, excluded, 93. Kenyon, Lord, his opinion in favor of authors, vii. 256 INDEX. KING'S PRINTER, see Prerogative, 99. LAW, decisions at, on the Act of Anne before 1776, 30. LAW BOOKS, no crown copyright in, 100. LATIN GRAMMAR, crown copyright in, 103. LEARNING, the promotion of, favored by the laws, v. LEGISLATURE, intention of the Act of Anne, 25. LIBELLOUS WORKS, excluded from protection, 97. LECTURES, copyright in written, 144. oral, 146. LIBRARY TAX, origin of, 41. grounds of, by Cambridge, 44. Oxford, 47. Scotland and Ireland, 49. general grounds of, examined, 196. the several statutes before 1814, 50. their interpretation, 52. legal decisions on unregistered books, 55. present law, 114. on original works, ib. second and subsequent edition^, 116. maps and prints, 117. quality of the paper, ib. places of delivering copies, 119. penalties for non-delivery, ib. works liable to, 120. exempt from, 121 effect on literature, 201. authorities regarding the effect of, 229. LIBRARY OF USEFUL KNOWLEDGE. On the commencement of printing, 228. LIMITATION, of proceedings under the statutes, 69, 168. copyright, 65. justice and policy of, considered, 181, INDEX. LITERARY PROPERTY, definition of, 1. Lysons, Mr. Samuel his evidence on the library tax, 240. Lyttleton, Lord, his opinions on the rights of authors, 218. Macauley, Mrs. Catherine, her opinions on the rights of authors, 219. MAGAZINES, See Reviews, 126. Mansfield, Lord, his opinion on the rights of authors, 1 , 8, 9. MANUSCRIPTS, copyright in, 74. unpublished works in general, 74. pirating, 137. of deceased persons, 140. private letters, literary and general, 141. Martin, Mr John, his evidence on the library tax, 239. MAPS, CHARTS, &c. copyright in, 79. pirating, 162. Milton, his opinion on eopyright, 211. MODELS. See Sculpture, 84. MoNBODDO, Lord, his opinion on the rights of authors, 214. MONTHLY REVIEW on the rights of authors, 221. MORALS, works excluded from injury to public, 89. Murk AY, Mr. John, his evidence on the library tax, 236. MUSIC, property in, 76. the transfer, 174. acquiescence in the publication, 174. pat'tial consent, 175. Netherlands, the tax for public libraries, xii. NEW EDITION, copyright in the notes to an old work, 76. pirating, 128. s 258 INDEX. NEW MONTHLY MAGAZINE on the library tax, 245. NEWSPAPERS, property in, 176. bequest of property in, ib. NOTES AND ADDITIONS, copyright in, on an old work, 76. pirating, 128. comprising authorities oh the injustice and impolicy of the law, 211. OBJECTIONS to a perpetuity considered, 181. OBSCENITY, efiFect of, on copyright, 89. ORIGIN of statute of Anne, 19. the library tax, 41. Original Works, pirating, 126. PAPER, quality of for the library copies, 117. PAMPHLETEER, opinions on the library tax, 243. PARLIAMENTARY PROCEEDINGS, publication of, 109. PEACE, works injurious to public, excluded, 9;5. PENALTIES for pirating copyright, 67. not delivering books to the libraries, 119. PERIODICAL PUBLICATIONS, the property in, 171. the communications made to the editor, 173. library tax on, 117. PERPETUITY OF COPYRIGHT by the common law, 6. recognized by acts of state and pariiament, 12. ancient customs, 16 PHILOMATIC JOURNAL on the rights of authors, 223. PIRACY, works excluded from protection for, 98. PIRATING COPYRIGHT, in printed books : original iworks, 126. INDEX. PIRATING COPYRIGHT continued. notes and additions, 128. abridgments, 129. compilations, 132. translations, 136. in manuscripts : unpublished MSS. in general, 137. MSS. of deceased persons, 140. private letters, literary and genera), 141. in lectures : written, 144. oral, 146. in dramatic works : / unpublished plays, 154. representing published plays, 155. in unregistered works, 157. in the fine arts : engravings and prints, .160. sculpture, 88. maps, charts, and plans, 162. musical compositions, 174. remedies for : by damages at law, 164. penalties under the statutes, 67, 167. injunction in equity, 168. PLAYS. See Dramatic Works, 154. PRAYERS, COMMON, crown copyright in, 109. PRESENT STATE OF THE LAW, 65. PREROGATIVE COPYRIGHT, in law books, almanacks, Latin Grammar, 99. statutes and other acts of state, 103. bibles and common prayers, 107. PRINCIPLES OF THE LAWS, 18J. PRINTING, origin of the art of, 45, 228. prerogative claim to monopoly of, 99. PRINTS. See Engravings, 77. PROPERTY in manuscripts, 74. books, 66. 74. the fine arts, engravings, 77. sculpture, 84. music, 76. 260 INDEX. Prussia, the library tax in, xii. PUBLIC PEACE AND JUSTICE, works injurious to, excluded, 93. PUBLISHING PARLIAMENTARY AND JUDICIAL PROCEED- INGS, 109. QUARTERLY REVIEW, on the rights of authors, 221. library tax, 244. QUOTATIONS, how far allowed, 132. Rees, Mr. Owen, his evidence on the library tax, 233. REGISTRY AT STATIONERS' HALL, 117. duty of warehouse-keeper, 118. penalties for neglect, 119. works included, 120. excluded, 121. RELIGION, works injurious to, excluded, 89. REMEDIES FOR PIRACY, 164. REVIEWS AND MAGAZINES, copyright in, 126. original essays published in them, ib. property in the communications made to the editor, 172. ROAD BOOKS, copyri t in, 135. Saxony, the library tax in, xii. SCULPTURE, MODELS, AND CASTS, analysis of statutes, 84. their construction, 88. transfer of, 170. SEIZURE OF COPYRIGHT BY CREDITORS, 177. STATIONERS' COMPANY, copies deliverable to, for the public libraries, 115. entry of books at their hall, 117. STATUTES, 8 Aune, cap. xix. 21. 8 Geo. II. cap. xiii. 77. ]2 Geo. II. cap. xxxvi. 32. 7 Geo. III. cap. xxxviii. 79. INDEX. 261 STATUTES continued. 15 Geo. III. cap. liii. 33. 17 Geo. III. cap. Ivii. 81. 38 Geo. III. cap. Ixxi. 84. 41 Geo. III. cap. cvii. 36. 54 Geo. III. cap. Ivi. 85. 54 Geo. III. cap. cliv. 65. prerogative copyright in the, 103. Stothakd, Mr. Charles, his evidence on the library tax, 239. Taylor, Mr. Richard, his evidence on the library tax, 234. TERM OF COPYRIGHT, 66. TRANSLATIONS, copyright in, 75. pirating, 136. TRANSFERRING COPYRIGHT, 170. acqniescence in publication, 174. partial consent, 175. Turner, Mr. Sharon, his opinions on the library tax, 229. UNIVERSITIES, their copyright in perpetuity, 33, 37. right to print the Bible and statutes, 103. claim to print almanacks, 102. UNREGISTERED BOOKS, legal decisions on, 5S. pirating, 157. Warburton, Bishop, bis.opinion on the rights of authors, 212. Wedderburn, Solicitor-General, his opinion on the rights of authors, 215. WiLLES, Mr. Justice, his opinion on the rights of authors, 1, 3, 6. WORKS excluded from legal protection, 88. J. EVANS, FIUNTEB, 91, BARTHOLOMEW CLOSE, LONDON. ERRATA. Page xviii, line 9, for o read o/' literary. 6, 25, for underwritten read ummrilten. 11, 29, for process read progress. 71, 7, for where read were. 120, Note (1) for 55 read 65. 173, 2, for implied read impliedly. 1 82, last line, insert " is said." 187, 2, for mere read mere/«/. 196, 37, for Augustine read .Augustan. 206, 30, for iji^usticy read i?yustice. BY THE SAME AUTHOR. In One Vohme Octavo, price Fifteen. Skiltings, A TREATISE ON THE LAW OF ATTORNIES, SOLICITORS, AND AGENTS ; WITH NOTES AND DISQUISITIONS. Published by J. and W. T. Clarke. Also, Price I^ine Shillings, THE SECONP EDITION OF OUTLINES OF CHARACTER, CONSISTING OF THE GREAT CHARACTER THE ENGLISH CHARACTER CHARACTERISTIC CLASSES THE GENTLEMAN EXTERNAL INDICATIONS OF CHARACTER CRANIOLOGY THE POET THE ORATOR THE LITERARY CHA- RACTER PERIODICAL CRITICS MEN OF GENIUS. Published by Longman, Rees, Orme, Brown, and Green; and H. Dixon. And, Price Two Shillings and Sixpence, A TREATISE ON THE PRINCIPLES OP THE USURY LAWS; WITH DISQUISITIONS ON THE ARGUMENTS ADDUCED AGAINST THEM BY MR. BENTHAM, AND OTHER WRITERS ; AND A REVIEW OF THE AUTHORITIES IN THEIE FAVOR. Published by Longman, Rees, Orme, Brown, and Green; J. and W. T. Clarke ; and H. Dixon. N V.