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maxim of law that there is no wrong without a remedy. To turn this maxim round and say, "Here is no remedy, therefore there has been no wrong," might in some cases make the judges stare. But where a right exists in virtue of a statute, there is of necessity a remedy; and if copyright exists only in virtue of some statute, then what need of words to show that where copyright is set at naught and cannot be enforced, there has been no wrong? If the British author and the British publisher get all that the law gives, under which the one writes and the other publishes, and in virtue of which they claim payment, then they have all that is theirs. As to what goes on beyond the reach of an Act of Parliament, that is none of their busiIf they receive any more money than comes to them lawfully in virtue of a right created by law, and which was one of the chief conditions upon which they undertook their risk, that more is sheer overplus-a windfall, gift of the gods, or whatever one may please to call some bounty that comes we know not exactly whence or why, but goes we know exactly whither. What is true in this respect of British authors and publishers, is, of course, equally true of their "American" brothers and rivals.
But what man of common sense and single eye does not see that the assumption of the lawyers is absurd, monstrous ?-that an author's right in the use of his works is not statutory; that copyright is not created by Act of Parliament or Act of Congress? That statute of Queen Anne of blessed memory, created no right; it destroyed; it conferred nothing; it restricted; it did not give; it took away: for copyright is, as we have already seen, chiefly of all rights of property, a natural right, one that in the very nature of things pertains to the maker of the copy, the author. That a man's thoughts are his own cannot be disputed, and, like the plainest truths, it can hardly be proved. But they cannot be even possessed by or in the knowledge of another, except he communicates them. Does he lose his right of property in them by putting them upon paper? This is not a question of opinion; it is a question of fact. He puts his manuscript into his drawer, and there it is his exclusive possession, and in his exclusive knowledge-a thing quite out of reach of all other men, except in a country where it may be lawful and usual to break open a man's enclosure, and take his private papers, to your own or to the public benefit. Does he give up his right in it by allowing you to read it, or to make a copy for your own benefit? No; for however it may be with regard to the spontaneous fruits of nature; the products of human industry, which are
the results of labour and contrivance, are owned by a right which must be respected, unless it has been expressly and openly renounced. The writer of a manuscript can fix the conditions upon which it may be used by other persons. Those conditions may be unwise and unkind; they cannot be unjust, for a man may do what he will with his own, and they cannot be disputed. He says to the public, "You wish to have the pleasure or the instruction to be derived from the reading of my book. Well, do you, through your Government, secure to me the receipt of a certain proportion of the money for which each copy may be sold, and I will print my book and publish it; otherwise, back goes my copy into my drawer, or here it goes into the fire!"
Circumstances, common sense, and an ordinary knowledge of the world, may be relied upon to procure for the public the reading of his book without the payment of an exorbitant price to the author: for, by insisting upon the latter, he would defeat his own interests. Without publication, the book is useless to him as a means of getting a return for his labour. This obvious condition of the case was well made by Mr. Justice Aston, of the King's Bench, an all-sufficient answer to the argument gravely put before that court-and which is still sometimes heard that an author, by publication of his book, makes the copy common. In other words, the act necessary to making a book useful and profitable to its author is construed to be destructive of his property in the results of his labour! Surely such an argument is worthy only of men too uncivilized, or too dull-brained, to see that a man may sell the use of a thing without selling the thing itself; or part with a certain right in it without giving up all his rights; and that an author, in publishing and selling his book, sells to each buyer a certain use only of the book. He sells the paper, the print, and the binding absolutely, but the book conditionally-that is, he sells the volume, and the use of it, but not the copy. He does not, by publication, openly renounce his natural right in the fruits of his time, his thought, and his labour, without which open renunciation all such natural rights are presumed to be reserved and retained.* Now this right in his copy he can sell, or give, or bequeath. Unless he can do this with it,
it is not his; he is not in its full possession; he has merely the usufruct of his work, a life interest, or an interest more or less limited. To say which, with regard to that which a man has not only produced by
"Barbeyrac, Notes on Puffendorf." Maugham, p. 10.
labour, but has made, as no man ever makes, a ship or a house, or a bale of cotton, is absurd, and, more, is shameful. An author clearly has a natural right to sell all that he owns. This is no privilege, or peculiar right of his he has it in common with all other men.
He has, there
fore, the natural right to sell, or to transfer for any consideration whatever, his absolute control over his copy. The person to whom it is transferred, having acquired all the author's rights, can transfer them to another, and he in his turn to another, and so forth, as long as there is anything to be transferred. So it is with a house or a ship that a man has built; and why it should not be so with a book that he has made, no one can say, or at least has hitherto said, except upon grounds that invalidate the possession of all property. Then comes a time when the house and the ship deteriorate in value, and finally become so worthless, that there is nothing in them worth buying; and so it would be with the copyright of a book. But then there are some books that seem to be of immortal worth. Well; and then let him who owns them profit by them, as if he owned a noble, imperishable house. But this profit will not then go to the author. What if it do not? Did the Duke of Richmond build Belvoir Castle? The conclusion is that copyright, if it is not created and conferred by statute, is a natural, absolute, and perpetual right. That it existed, and in the nature of things must have existed, before the making of any law upon the subject, we have seen, I trust, with sufficient clearness. But let us see what the statute of Anne is, what it pretended to do, and what was the author's relation to his copy before the passing of that Act, and let us consider the last point first.
The common law of England recognized the natural, absolute, and perpetual right of the author in his copy; and this right was transferred by him, and bought and sold without limitation, until the Act of Queen Anne became British law upon this subject. Books were entered by their titles and their authors' names upon the "Stationers' Register," as belonging to certain persons, and if these persons sold them to others, the transfer was made upon that register. The register and the transfer made the person recorded as the owner of the book its legal proprietor, with the sole right of printing it; and the duration of that right was without limitation, expressed or implied. The business of authors, and especially of stationers (as publishers and booksellers were then called) was conducted upon this recognized practice of the trade, this acknowledged right at common law. This custom was proved in the case of Millar v. Taylor, for the violation of the
copyright of Thomson's "Seasons," which was tried in 1769, and in a special verdict, the jury found:
"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 considerations, and to make the same the subject of family settlements for the provision of wives and children."*
So much for the notion that copyright is not a natural, but a statutory right, a right created by Act of Parliament, which has but recently been seriously put forth. Sir Thomas Clarke, Master of the Rolls, said in 1761, "It is not necessary to determine whether authors had a property in their works before the reign of Queen Annc. If they had not, it was a reproach to the law." But it is clear that they had this right. What the Queen Anne Act did was, under the pretence of the encouragement of learning, by securing copyright to authors and their representatives, and enabling them to enforce those rights to restrict, diminish, and limit the rights of authors in their books, to lay burthens upon them, and even to control the prices which they should ask for the fruit of their own labours. The title of the Act is, "An Act for the Encouragement of Learning, by vesting the copies of Printed Books in the Authors, or purchasers of such copies during the times therein mentioned." Remembering that the copies were already vested in the authors by natural right, and at common law in perpetuity, and considering that the first section of this law assumed to confer upon the author of a book, or upon his representative, the sole right and liberty of printing such book "for the term of twenty-one years" in certain cases, and in others, "for the term of fourteen years, and no longer," we see that this Act gave nothing in the way of copyright, and took away much. It gave something in making it easier for the author or the publisher to enforce his right which from the loose and piratical practices of the trade was subject to depredation, against which it had long been difficult for him to protect himself. This liability to robbery was the only need for legislation upon the subject, as far as "the encouragement of learning" was concerned. Parliament might as well for the encouragement of building have passed an Act providing that every man who built a house should have an undisputed right to live in, rent, or sell it for fourteen years, and no longer. But, in addition to this curtailment and restriction of the author's property in his book by natural right
* Maugham, p. 16.
and at common law, the Act required every bookseller to sell his books at a price not deemed "too high and unreasonable" by the Lord Archbishop of Canterbury, the Lord Chancellor, and ten other dignitaries of the realm, either one of whom could, upon complaint and after hearing, compel the bookseller to reduce his price to one that seemed just and reasonable to the dignity aforesaid, and to pay the costs of the proceeding. It also provided that nine copies, on the best paper, of every book published should be given by the author and the publisher to the libraries of certain Universities and Faculties, in default of which the copyright should fail, and the bookseller should be fined. All copyright laws in Great Britain and the United States are mere modifications of this beneficent and beautiful enactment of Queen Anne's day, which diminished the author's rights, and laid burthens upon him and his business partner, the publisher, for the encouragement of learning. One copy of each book only has been demanded hitherto in the United States-that deposited as the book, copyright of which is claimed. But some years ago Congress passed an Act requiring a copy to be given to its own library, in default of which the author loses his copyright: a most unrighteous act. Upon what pretence can Congress go to Mr. Longfellow, and say, give us a copy of each one of your books, or you shall have no property in all the other copies. But this is all in keeping. If Parliament and Congress give authors the right to the enjoyment of the fruit of their labours, then Parliament and Congress, of course, may make the conditions of their gift, or, be it remembered, they may refuse the gift altogether, and on any terms whatever; and if the author's right in his copy merely statutory, then the British author has no grounds of complaint that his books are printed without profit to him in the United States, because there British statutes have no force, and there no rights can exist by Act of Parliament.
The remedy for all this confusion and wrong is a simple one. No legislation is needed--that is, none of a positive character; no act for the encouragement of learning, of which we have had quite enough. Let Parliament and Congress simply repeal in ten words all copyright laws, and the British author's right to his book in the United States, and the "American" author's to his in Great Britain, would be as absolute and defensible as Sir Edward Cunard's is in one of his steamers, whether it be in New York or Liverpool; and if it were deemed necessary to restrict the duration of copyright, although the necessity of the restriction is not easy to be discovered, to the few