DISCUSSION:

ARE THE LAWS REGARDING LITERARY PROPERTY FOUNDED IN JUSTICE?

By the present law, authors or their assigns are entitled to the exclusive right of printing and publishing their works for twenty-eight years from the first publication. If the author be living at the end of the term, the copyright is continued during the remainder of his life. If he has previously assigned it, it reverts to him at the end of the twenty-eight years. Authors or publishers are obliged to deposit eleven copies in certain public libraries.

The Opener of the question maintained, that the existing laws were not founded in justice; that the term of copyright was far too short; that its brevity was unjust with regard to the rights of authors, and injudicious with respect to the interests of the public; and that the demand of so great a number of copies was a burdensome tax upon literature, so long as the protection afforded to it was so insufficient.

The opener, and those who agreed with him, argued thus:-Man has a natural right to the fruits of his own labour. That which he calls into existence by the exercise of his limbs or faculties is as much his own as the limbs and faculties themselves. Who else, indeed, can claim any right to it? Why should a stranger possess himself of the beneficial produce of the labour of another? Would not every one feel this to be unjust in his own case? The labour of one man cannot be the labour of another. The produce is the reward of the labour, and ought to remain with him who has laboured, unless he consent to part with it by compact or donation. If this be true with regard to bodily labour, must it not be so with regard to that which is mental? Are the operations of a man's mind not his own? Is the result of those operations not his own? And shall not the beneficial recompence be his own also? The property which a man has in the produce of his own mind is founded in the very constitution of nature. It has a more solid foundation than property of any other kind. It has a great advantage over property gained by occupancy, which was at first common, and required some act to render it the property of an individual. This was originally the author's; it never was common, and never ought to become so, but with the full consent of the natural proprietor.

Literary property, then, has its origin in reason and justice. The right of property of course implies the sole right of using and disposing of it; and this right is, in fact, acknowledged by

Are the Laws of Literary Property founded in Justice? 391

the law, so long as the author refrains from publishing his manuscript. He may withhold it altogether if he will, and his descendants may retain it in their possession for ever, and no one can compel them to publication; nor can any one lawfully publish it without their consent. What difference can the fact of publication make, or rather what difference ought it to make? It has been said, that an author, by publishing his work, abandons the possession of it,-an assertion almost too idle to deserve notice. A man who lends his horse does not abandon his right in him. Because, for a time, his corporal possession has ceased, we do not conclude that he never intends to resume his property. But then it has been said, that the author cannot reclaim that which he has parted with. The reader has absolutely purchased the book, and has a right to do what he will with it. The reader has indeed purchased a certain copy of a work, and the author cannot demand it back. It is impossible for him to repossess himself of the ideas which he has imparted to the mind of the reader; and, if possible, he would have no right to do it; because the reader has honestly bought and paid for them: of all the knowledge that the book contains, he may avail himself for improvement or delight. But, because he has a right to the full use and enjoyment of his own copy, can it be inferred that he has therefore a right to multiply copies for his own pecuniary emolument? A man who has a right of walking in the garden of another, may exercise this right according to the conditions upon which he holds it. He may walk in the garden for his health or pleasure he may possibly be entitled to introduce his friends; but the garden is not his, and he must not dispose of the produce of the trees for his own advantage, or in any other way injure the pecuniary interests of the proprietor. A man who has a spring of water upon his ground, may give or sell water to his neighbours; but, by so doing, he does not dispossess himself of the spring. The houses in the metropolis, and other large towns, are supplied with water by public companies. Upon condition of the payment of a certain sum, the occupants of the houses are entitled to as much water as they can consume; but they must not make it a source of profit. Although they may use as much water as they will, they must not sell the smallest portion. A man who has a ticket of admission to a theatre, bas a right to enter the theatre; he has a right to all the entertainment which is there to be met with. If the ticket be a transferable one, he may lend or let it for hire; but he must not multiply tickets, and vend them for his own profit. He who has access to the garden of another; he who has the privilege of fetching water from a spring, or has it delivered at his house; he

:

who has admission to a place of amusement, and all other persons in similar circumstances, must enjoy their benefits and advantages according to the terms upon which they were granted by the proprietor who had originally the sole right of using and disposing of them. We must look at his intention. We must not conclude, that he has parted with more than he evidently intended to part with. To suppose that, without some cause, a man will abandon his property, is unreasonable. To determine, in the teeth of evidence, to the contrary, that he has done so, is unjust. Now, when a man writes, prints, publishes, and sells a book, so far from intending to abandon the pecuniary emoluments arising from its publication, he manifests a directly contrary intention. He does not give his book away. He does not charge the mere cost of the paper and print. He charges something beyond this, which is the reward of his labour of literary composition. It is he who has laboured. It is he who is entitled to the reward of the labour. It is he who, by demanding this reward, asserts 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 abandonment.

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 works, 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. 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 profitable by publication. If publication, then, be a forfeiture of the right 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 of his mind, 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 property is a natural right; and as no natural right should be abridged without

good cause, it behoved the advocates for the present law to shew 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 copyright were made perpetual, authors, 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 proprietor 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 enquirers. 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 irremediable. The proprietor would not be allowed to demand for his books a price that was altogether unreasonable. He who offers his goods for sale must be contented with a market price. He may demand the highest 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 book, when necessary, the fact of its having been a certain number 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 copyright, without the verdict of a jury; 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.

The objection to the rights of literary property, which has just been answered, proceeds, it should be observed, not upon fact but upon vague and unwarranted suspicion. It says, in effect, "We dare not trust you with your rights, because we suspect that you would make an ill use of them." Why should this be suspected? No good reason can be assigned why the descendants of literary men should be less honest or less libe

ور

ral than other persons. Surely, then, the objection is of a most ungracious character.

If it be desirable to encourage literature in a state, the easiest, as well as the most equitable 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 secured 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 labour, 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: because the imitation of a machine is not the original machine itself, but only one resembling it. The wood, metal, or other materials, 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, and language, are its substantial and essential parts. The paper and ink are only accidents. They constitute the

vehicle of conveyance from the mind of the author to the mind of the reader; but they are not of the substance of the thing conveyed. Lastly; is it quite certain that ingenious mechanists 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 labour, which will require the sacrifice of the better part of his life, when the reward of his labour must cease with his life, and he can 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 tendency of the law is, therefore, injurious to sound literature, by discouraging men from undertaking works of great dignity or lasting utility, and seducing them by the prospect of gain to become