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Tokson the same tyrannical powers were exerted. After the restora"• tion, the statute of the 13 & 14 Car. 2(i), was modelled on the
OL',"'?- , Star Chamber decrees, and states, that many had the right solely to print, talks of the owner's consent, and gives a penalty in case of transgression, to the owners of books and copies. Though all these restrictions were founded on wrong principles of policy, yet they are strong arguments of a generally-allowed pre-existing copy-right. As to the law patent, (the best account of which is in the Case of Roper and Streeter(k), [and] in Carter (I), whatever validity it may have, it can have no effect on the present question. It confines the author of a law book to print with a particular person. It does not take away any copy-right (m). Few precedents to be met with in the books. Ponder and Braddel, 13 Car. 2, Lill. Entr. 67; action upon the property of the Pilgrim's Progress. What cases there are, are ill reported; being all on patent rights, and therefore the law printers would only print the arguments on one side. In 1 Mod. 256, property of almanacks are said to be the King's, first, because derelict; secondly, as prerogative copies, since they regulate the feasts of the Church.—The expiration of the licensing act of Car. 2, gave rise to the statute of Queen Anne(»); which recognizes authors as proprietors; and gives particular remedies by a penal action. It takes away no antecedent right. There is a saving clause of all antecedent rights. The words, "for fourteen years and no longer," extend only to the accumulative remedy by penal action. There have been many cases in Chancery, wherein injunctions have been granted, to restrain the sale of books, in prejudice to the proprietors of copy-rights. Motte and Falkner before Talbot, C. 1735(o). —Eyre and Walker, coram Talbot, C. 1735(»).— Walthoe and Walker, 1736, coram Jekyll,M. R.(q)—The Case of Gays [ *306 ] Works in 1737, where Lord Chancellor made * the injunction perpetual; which he could not have done merely under the act. Austen and Cave, 1739. In fine, this species of property is acknowledged by act of Parliament—Long understood to be vested, and made the subject of family settlements—recognized by the Court of Chancery. Therefore, we presume that a court of law will allow an action on the case to he for its violation.
Thurlow, for the defendant—The right contended for, if it exists, must arise from either—1. Privilege; 2. Common law property. It supposes a right to multiply copies in infinitum; and to exclude other persons from making profit by multiplying them. Some parts of the verdict quite out of the case. It is of no consequence, whether the authors are natural born subjects or no; because this right of property, if any, is personal; and may be acquired by aliens.—Of no consequence now, that they continued to publish it. If there be any property, they may Tonson use it as they please. It might have been an ingredient at the "■
(i) C. 33. Sec ante, lll,n. (m) See Basket v. Cunninglum, ?«'.
(*) Cited post, 328. 370.
(0 Case of Rolle's Abridgment, Carter, (n) Post, 309, n. (<).
89; 5 Bac. Abr. p. 595; S. C. cited ante, (o) Cited post, 331.
113; S.C. cited 10 Mod. 106. (p) lb. (?) lb.
trial, by which to measure the damages. The case has not ■ 0LyNS- , been argued as a right arising from privilege, or flowing from any act of the state. I shall therefore insist, I. That it does not exist naturally or flow from natural law: II. That where this kind of property has been spoken of by learned men, or even by Courts of justice, it had reference to the extraordinary acts of the state.
I. Public utility, &c. points one way as well as the other. It is useful to the public, that a monopoly should be abolished. The establishment of copy-right may tend to the advantage of authors; not of the public. When a perpetual monopoly is established, printers who purchase copies will print in the * vilest and the cheapest manner; which will make the curious [ *307 j resort to foreign countries. The act of Parliament therefore wisely gives a limited monopoly, and not a perpetual. Property in the profits of publication must presuppose property in the thing itself. And the subject of this property, if any, must be in the abstracted, ideal, incorporeal composition. Now, the idea of the composition, as it lies in the author's mind, before it is substantiated by reducing it into writing, has no one idea of property annexed to it. In the Roman law, there was a
Juestion concerning specification, long debated between the 'roculi and Sabini. If I write any Carmen, &c. on the materials whereon Titius has wrote his Carmen, &c. before, it belongs to Titius, jure specijicationis. Vide Institut. and Puffendorf on the subject (r); who observes, that this is not an ori
?\nal method of acquiring property, but merely by contract. ee also Seld. Mare Claus. cap. 22. Publications by subscription shew, that there is a method, by which an author may gain a profit for his works, without resorting to any copy-right. I insist, that every subscriber has a right to do what he pleases with the book he has so subscribed for. It will be difficult to shew the remedy of such a right as this. Will the remedy lie against the keepers of circulating libraries, who buy one copy, and hire it to an hundred to read ?—Or against a man who lends it gratis? Both gratify the curiosty of others, and stop the sale of the book, ft will be difficult to confine this merely to books, and not extend it to other inventions. A learned author f has endeavoured at it, and brangled it, and made t Bishop Warmiserable stuff of it. He attempts a distinction between the labour of the head and of the hand. But in some machines the labour of the head is much greater than that of the hand. Sir Isaac Newton had no greater property in his Principia, than Lord Orrery had in his machine. If the labour of the head gives the right, the property is just the same. And it is possible, that the in*vention of a mouse-trap might cost its author r *S08 1 the same labour of head that the orrery did its noble contriver. >*
So that this ground of property depends entirely upon the dif
Tonsom ference of heads. The right of property in books and ma"• chines is therefore the same. Both have arisen from
■ . II. The extraordinary acts of the state. The licensing acts
began in England in 1400 and odd. Before that no marks appear of property in books. St. Ambrose " De Vitis Patrum" appears, from Ames, to have been licensed by the archbishop. In Caius Coll. library at Cambridge, there are many books, in MS. as well as print, published under licence. From 1539, privileging and printing went hand in hand, printing being supposed a flower of the Crown. Indeed there are great arguments for supposing that printing was imported by the Crown. Lord Coke says so—And Polydore Virgil the same, in the reign of Henry 8th. Be this as it will, the privileges granted imply no idea whatsoever of copy-right in authors. They relate merely to printers, as if in nature of a patent for this new invention of publication. In 1551, licence granted to Laurentius Torrentinus to print the Pisan Code. Here was nothing new in the invention of the book: The encouragement is to the labour of printing. Qu. Eliz. granted a patent for the sole printing of music,—another for maps of England,— another for latin, &c.—All these patents are totally foreign to any notion of copy-right. They rather exclude it. The reasons of creating this exclusive property in printers were reasons of state. Darey and Allen, Moor, 673; the privilege for sole printing was held to be good, for the peace and safety of the realm. So in Holland, a theological controversy once ran so high, that the state enjoined the disputants to proceed no farther, lest they should offend contra bonos mores. At length it was provided, in 1556, that no one should print books without leave from the Company of Stationers. In 43 Eliz. among other complaints of monopolies, by the House of Commons, a monopoly of the translation of Tacitus was complained of;
[ 309 J which shews very little regard to any * right of either authors or translators. The stat. 21 Jac. 1 (*), saves to the Crown the right of giving privileges in matters of printing: Which shews, that the property was supposed to be derived from the Crown. The word " property" in the statute of Queen Anne(/) arises from the wording of the orders of the Company of Stationers in 1691; who were fond enough of asserting such a right. This
(*) C. 3, s. 10, concerning monopolies, time of passing the act, shall be then Ui(*) 8 Ann. c. 19. But now by stat. ing; and if he shall die before thecipira54 G. 3, c 156, s. 4, it is enacted, that tion of the fourteen years, then the perfrom and after the passing thereof, (June sonal representative, or his assignee, shall 29, 1814), the author of any book com- have the sole right of printing anil pahposed and not printed and published, or lishing for the further term of fourteen which shall thereafter be composed and be years, after the expiration of the first foufprinted and published, and his assignee or teen years: and by s. 9, if the author of assigns, shall have the sole liberty of printing any book then published shall be living »t and reprinting such book for twenty-eight the end of twenty-eight years after the years, from the day of first publishing first publication, he shall, for the reraainthe same; and also, if the author shall be dcr of his life, have the sole right of printliving at the end of that period, for the re- ing and publishing the same. As to the sidue of his natural life: and by s. 8, that construction of this statute, see pott, S*5> if the author of any book, which shall not n. (rf). have been published fourteen years at the
statute provides, that if the author overlives fourteen years, the property shall return to him: that is, it shall no longer remain in the printer, according to the orders of the Stationers' Company. Suppose now the author had assigned it for fifty years; I should contend, that the subject-matter of this assignment is, by the statute, made incapable of subsisting for more than fourteen years. By one clause in the statute of Queen Anne (v), certain great officers were enabled to regulate the prices of books; not only of those entered at Stationers' Hall, hut of all others. This would not have been repealed, had the Legislature thought a property attached in authors exclusive of the terms in this statute. For it would be extremely inconvenient, if no power of regulation were vested any where. For then authors might set what price upon their works they pleased; since no action can lie against them for abusing their power. This is the first action ever known to be brought upon this head of property (for the declaration in Lilly's entries is the mere invention of the author); and therefore ought not to be received. Littleton, Chapter " Knight's Service," says, "No action can be brought upon the statute of Merton for disparaging an heir, because none ever had been brought." («). "Diversity of Courts," says, " Writ of error will run to the five ports;" Brooke (w) says the like: But in Dyer, 376, because none ever had gone, it was determined none ever should go. Year-book, 39 Hen. 6, a royal protection to the King's proctor at Rome disallowed, because none ever granted before. The cases in Chancery are none of them opposite to this doctrine. The injunctions granted are all of them since the statute of Queen Anne, which clearly vests an absolute right in authors, &c. for fourteen years. In the late case of Tonson and Walker, about Newton's Edition of * Milton, Lord Chancellor did not [ *310 ] determine upon the general right of property, but upon the statute. For Dr. Newton's notes were clearly within the term. However, an injunction in Chancery is not conclusive to the right. It is not that solemn adjudication which the law requires.
Wedderburn in reply.—The jurisdiction of the Court of Chancery, to grant injunction in these cases, well supported by the finding of the jury, that this is a customary property. The profits of authors, &c. must arise from an extensive sale. It is therefore their interest to publish books in the best and the cheapest manner. But if they did not, this is only argumentum ab a bit sit. If this right be abused, you may lay restrictions upon it, as was done by stat. 8 Ann. [c. 19, s. 4 , though that clause is now repealed by 12 Geo. 2, [c. 36, s. Sj. Books cannot be compared to mechanical inventions, with any propriety: For those are capable of improvement at every copy made. Books are usually reprinted verbatim. We allow that reasons of state gave birth to exclusive patents; but deny that such patents gave original to or interfered with copy-rights.
Patents were chiefly in favour of printers, being a new art which tended to diffuse knowledge. Learned men were originally rewarded by the emoluments they received from the resort of pupils. When their learning came to be diffused by books, society gave them this recompence instead of it; which we hope the Court will protect.
Lord Mansfield, C. J.—Let this case stand over for farther argument. There is no doubt, but the violation of that property, which may be the subject of an injunction in Chancery, will maintain an action on the case in this Court Because every injunction proceeds upon the supposition of a legal property. There are two sorts of cases in the Court of Chancery, which I desire may be looked into; 1st, Where there hath been no printing or publication at all(x). The statute of Queen Anne seems evidently to distinguish this [ *311 ] *from other cases. In the case of the edition of Pope's Letters to Swift, the question was, Whether the property was not transferred to the correspondent. Lord Hardtcicke thought not, and that the writer was still the proprietor, and therefore granted an injunction against the assignee of Swift. 2d. Where the term given by act of Parliament has been clearly expired. I remember no case, where the merits have been fully argued, and the injunction made perpetual, at the hearing of the cause; therefore, they are not quite decisive; and yet they have great authority. They at least answer the objection against the disuse of these actions; since the parties injured have followed their remedy in another Court. In Tonson and Walker, Lord Hardwicke inclined to the property, but sent it to law. It was there twice argued, but never certified. The reason why he leant to the property was, because, in all prerogative causes of this kind, the counsel for the Crown had endeavoured (right or wrong) to put the merits on a supposed property in the Crown: and it seemed to be universally acknowledged, that such a property might be subsisting. Let the Judges be attended with copies of the cases in Chancery.
[& C. pott, 321.] (x) Ante, 302, n. (o).
The master's report upon interrogatories of contempt, cannot be moved for the last day of the Term, without previous leave of the Court; unless upon extxaordi
The King V. Wheeler.
S. C. 3 Burr. 1257, but not S. P.
AN attachment had issued against the defendant, for disobeying an award, and fifing a bul in Chancery against the arbitrators, and he had been examined upon interrogatories.— Morton moved for the master's report, upon the last day of the Term, without previous leave of the Court, upon an affidavit, that the defendant had made the proceedings on this very attachment the subject of a supplemental bill, and had moved for an injunction. Objection by Howard, that this motion was irregular. But, per Cur.—In a case so extraordinary as this.