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which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by
A parol assignment of the copyright of a work may not be sufficient, perhaps, to give the assignee the privileges conferred by the legislature upon the author. Power vs Walker, 3 Mau. & Sel. 9. But when a publisher has been induced by such assignment to employ his capital and attention upon a work, withdrawing them from other matters in which they might possibly have been more profitably employed, and when the author has acquiesced in seeing his parol assignment acted upon for a length of time, a court of equity, even if it acknowledged the author's strict right, would probably think his conduct entitled him to no summary relief by injunction, and would leave him to such remedy as he might have at common law. Rundell vs. Murray, Jacob's Rep. 316.
The proprietor of a copyright must file a separate bill against each bookseller taking copies of a spurious edition for sale; for there is no privity between such parties, and the defendants may justify their several acts upon totally dissimilar grounds. Dilly vs. Doig, 2 Ves. Jr. 487. Berke vs. Harris, Hardr. 337.
In cases of alleged piracy of literary property, a reference is usually directed to the Master, ( vs. Leadbetter, 4 Ves. 681. Nicol vs. Stockdale, 3 Swanst. 689;) but, in order to save expense, the court itself will sometimes compare the two works. Whitting. ham vs. Wooller, 2 Swanst. 431.
Parts of this note and the next are extracted from 2 Hoveden on Frauds, 147, 152.
As to the kind of prerogative copyright subsisting in certain publications, as Bibles, liturgies, acts of parliament, proclamations, and orders of council, see post, p. 410.
Mr. Christian observes that “the principal differences in these three statutes concerning prints seem to be these: the 8 Geo. II. gives an exclusive privilege of publishing to those who invent or design any print for fourteen years only; the 7 Geo. III. extends the term to twenty-eight years, absolutely, to all who either invent the design or make a print from another's design or picture; and those who copy such prints within that time forfeit all their copies,-to be destroyed, -and five shillings for each copy. The 17 Geo. III. gives the proprietor an action to recover damages and double costs for the injury he has sustained by the violation of his right.”—CHITTY.
But this act has now been repealed; and, by several recent statutes, the law of copyright has been placed upon a different footing. By the statute 5 & 6 Vict. c. 45, the protection of the law is extended to the period of forty-two years from the first publication of a work or the period of the life of the author, and seven years following, whichever of these two terms may be the longer. And the copyright of a book published after the author's death endures for forty-two years from the publication. With regard to encyclopædias, reviews, and periodicals, the act provides that the copyright of articles supplied to such works shall belong to the proprietors of the works for the same period as is given to the authors of books whenever the article has been written on the terms that the copyright shall belong to the proprietor; but the copyright does not vest until payment has been actually made.
În the absence of any agreement, after twenty-eight years from the publication of an article the right of publishing it in a separate form reverts to the author for the remainder of the term of forty-two years given by the statute. During the twenty-eight years thus allowed to the publisher in the absence of an agreement, the consent of the author or his assigns must be obtained to enable the proprietor of the encyclopædia, review, or periodical to publish the article in a separatē form. The statute also reserves to the author of any dramatic piece or musical composition, and to his assigns, the sole right of representation or performance in public for the same term as is appointed for the duration of copyright in books. These rights extend to foreigners residing in this country. It has also been decided that a foreigner residing abroad is entitled to the copyright of a work composed by him which has been first published in this country. Boosey vs. Davidson, 13 Q. B. 257. Boosey vs. Jeffries, 6 Ex. 580.-KERR.
By the act of Congress 4 Feb. 1831, (4 Stat. 436. 4 Story's Laws, 2221,) which has superseded and repealed all former laws on the subject, the authors of books, maps, charts, and musical compositions, and the inventors and designers of prints, cuts, and engravings, being citizens of the United States or residents therein, are entitled to the exclusive right of printing, reprinting, publishing, and vending them for the term of twentyeight years from the time of recording the title thereof; and if the author, inventor, or designer, or any of them, where the work was originally composed and made by more than one person, be living, and a citizen of the United States, or resident therein at the end of the term, or, being dead, shall have left a widow or child or children, either or all of them living, she or they are entitled to the same exclusive right for the further term of fourteen years on complying with the terms prescribed by the act of Congress, 2 Kent's Com. 373.-SHARSWOOD.
virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee.(k)*
(4) 1 Vern. 62.
15 When the crown, on behalf of the public, grants letters-patent, the grantee thereby enters into a contract with the crown, in the benefit of which contract the public are participators. Under certain restrictions, affording a reasonable recompense to the grantee, the use of his invention, improvement, and employment of capital is communicated to the public. If any infringement of a patent be attempted after there has been an undisputed enjoyment by the patentee under the grant for a considerable time, courts of equity will deem it a less inconvenience to issue an injunction until the right can be determined at law than to refuse such preventive interference merely because it is possible the grant of the crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be that the patentee must be ruined by litigation. Harmer vs. Plane, 14 Ves. 132. Universities of Oxford and Cambridge vs. Richardson, 6 Ves. 707. Williams vs. Williams, 3 Meriv. 160. But if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill vs. Thompson, 3 Meriv, 624,
The grant of a patent, as already stated, is in the nature of a purchase for the public, to whom the patentee is bound to communicate a free participation in the benefit of his invention at the expiration of the time limited. Williams vs. Williams, 3 Meriv. 160. If, therefore, the specification of a patent be not so clear as to enable all the world to use the invention, and all persons of reasonable skill in such matters to copy it, as soon as the term for which it has been granted is at an end, this is a fraud upon the public, and the patent cannot be sustained. Newbury vs. James, 2 Meriv. 451. Ex parte Fox, 1 Ves. & Bea. 67. Turner vs. Winter, 1 T. R. 605. Harmer vs. Plane, 11 East, 107.
The enrolment of a patent cannot be dispensed with upon the ground that, if the specification is made public, foreigners may take advantage of the invention ; for the king's subjects have a right to see the specification. Ex parte Koops, 6 Ves. 599. Nor can the date of the patent be altered after it is once sealed in order to enlarge the time (four months) allowed by the statute for the enrolment of specifications, even though the case may be a hard one and the delay has arisen from innocent misapprehension. Ex parte Beck, 1 Br. 577. Ex parte Koops, ubi supra. And if a patentee seek by his specification more than he is strictly entitled to, his patent is thereby rendered ineffectual, even to the extent to which he would otherwise be entitled. Hill vs. Thompson, 3 Meriv. 629. Harmer vs. Plane, 14 Ves. 135.
When a person has invented certain improvements upon an engine, or other subject for which a patent has been granted, and those improvements cannot be used without the original engine, at the expiration of the patent for such original engine a patent may be taken out for the improvements; but before that time there can be no right to make use of the substratum protected by the first patent. Ex parte Fox, 1 Ves. & Bea. 57. And where industry and ingenuity have been exerted in annexing to the subject of a patent improvements of such a nature that their value gives an additional value to the old machine, though a patent may be obtained for such improvements, yet, if the public choose to use the original machine without the improvements, they may do so without any restriction at the expiration of the original grant. If the public will ab stain from the use of the first invention, in consideration of the superior advantages of the improved instrument, it is well; but the choice must be left open. Harmer vs. Plane, 14 Ves. 134.--Caitty.
The Patent-Law Amendment Aet (15 & 16 Vict. c. 83) now regulates the terms upon which letters-patent may be granted. By this statute, the fees which it was formerly necessary to pay upon obtaining a patent have been greatly reduced, and the payment of them is spread over the space of several years; so that, if an invention be not found lucrative, the patent may be discontinued and the fees saved. Letters-patent granted under this act contain a condition that the same shall be void at the end of three years unless a fee of 401., with 101. stamp duty, be then paid; and again at the end of seven years from the grant, unless a fee of 801. and 202. stamp duty be paid.
The statute 5 & 6 Will. IV. c. 83 authorized a prolongation of the original term, not exceeding seven years, to be given, on the recommendation of the Judicial Committee of the privy council; and, by statute 7 & 8 Vict. c. 69, a further term, not exceeding fourteen years, may be granted, if it be shown that the inventor has not been remune rated during the former period for the expense and labour incurred in perfecting his invention.-KERR.
By the act of Congress of July 4, 1836, c. 357, (4 Story's Laws, 2504,) all former laws of the United States on the subject of patents are repealed, and the patent system re
OF TITLE BY PREROGATIVE AND FORFEITURE.
A SECOND method of acquiring property in personal chattels is by the kir. 's prerogative: whereby a right may accrue either to the crown itself, or to adeh as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an antient grant.
Such, in the first place, are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or antient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former book. In these the king acquires and the subject loses a property the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern statutes : which revenues created by statute do always assimilate, or take the same nature, with the antient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.
*In these several methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property
[*409 with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another person, (a) but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel ;(b) and so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown, the king shall have the entire horse, and entire debt.(C) For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right
(6) Oro. Eliz. 263. Plowd. 323. Finch, Law, 178. 10 Mod.
() See page 184.
enacted with important amendments. The Patent-Office is now attached to the Department of the Interior, (Act March 3, 1849. 9 Statutes, 395,) and a Commissioner of Patents appointed. Applications for patents are to be made in writing to the commissioner by any person having discovered or invented any new and useful art, machine, manufactúre, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter not known or used by others before his discovery or invention thereof, and not, at the time of his application for a patent, in public use or sale, with his consent or allowance as the inventor or discoverer. It must be accompanied with specifications, drawings, specimens of ingredients, and models, according to the nature of the case. It is the duty of the commissioner to examine the alleged new invention or discovery, and, if satisfied that the applicant is entitled under the law, he is to issue a patent in the name of the United States to him, his heirs, executors, administrators, or assigns, for the exclusive right of making, using, and vending the same for a term not exceeding fourteen years. The patent may, in special cases and in the discretion of the board of commissioners, be renewed and extended to the further term of seven years. If the application be rejected and the applicant persist in his claim, he is to make his oath or affirmation anew; and, if the specification and claim be not so modified as to remove the objection, the applicant may appeal to a board of three examiners, to be appointed by the Secretary of the Interior; and the Commissioner of Patonts is to be governed by their decision. 2 Kent's Com. 367.-STARSWOOD.
in any instance; but where they interfere, his is always preferred to that of another person;(d) from which two principles it is a necessary consequence, that the innocent though unfortunate partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstance.
This doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned; as the chattels thereby vested are originally and solely vested in the crown, without any transfer or derivative assignment either by deed or law from any former proprietor. Such 18 the acquisition of property in wreck, in treasure trove, in waifs, in estrays, *410]
in royal fish, in swans, and the *like; which are not transferred to the
sovereign from any former owner, but are originally inherent in him by the rules of law, and are derived to particular subjects, as royal franchises, by nis bounty. Those are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia, and therefore vested in the king, as well to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth.
There is also a kind of prerogative copyright subsisting in certain books, which is held to be vested in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulgating to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As supreme head of the church, he hath a right to the publication of all liturgies and books of divine service. 3. He is also said to have a right by purchase to the copies of such law-books, grammars, and other compositions as were compiled or translated at the expense of the crown. And upon these two last principles, combined, the exclusive right of printing the translation of the Bible is founded.?
There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before, the property of such animals feræ naturæ as are known by the denomination of game, with the right of pursuing, taking, and destroying them : which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an
() Co. Litt. 30. * If a joint-tenant of any chattel interest commits suicide, the right to the whole chattel becomes vested in the king. This was decided, after much solemn and subtle argument, in 3 Eliz. The case is reported by Plowd. 262, Eng. ed. Sir James Hales, a judge of the Common Pleas, and his wife, were joint-tenants of a term for years. Sir James drowned himself, and was found felo de se; and it was held that the term did not survive to the wife, but that Sir James's interest was forfeited to the king by the felony, and that it consequently drew the wife's interest along with it. The argument of lord chief-justice Dyer is remarkably curious. “The felony," says he, “is attributed to the act, which act is always done by a living man, and in his lifetime, as my brother Brown
aid; for he said Sir James Hales was dead. And how came he to his death? It may be answered, by drowning. And who drowned him? Sir James Hales. And when did he drown him? In his lifetime. So that Sir James Hales, being alive, caused Sir James Hales to die; and the act of the living man was the death of the dead man. And then for this offence it is reasonable to punish the living man, who committed the offence, and not the dead man. But how can he be said to be punished alive, when the punishment comes after his death? Sir, this can be done no other way but by divesting out of him, from the time of the act done in his lifetime which was the cause of his death, the title and property of those things which he had in his lifetime.”
This must have been a case of notoriety in the time of Shakspeare; and it is not improbable that he intended to ridicule this legal logic by the reasoning of the grave-digger in Hamlet upon the drowning of Ophelia. See Sir J. Hawkins's note in Stephen's edition.-CORISTIAN.
? However, it seems to be agreed now that both the Bible and statutes may be printed by others than those deriving the right from the grant of the crown, provided such edition comprise bona fide notes ; but, with this exception, the sole right to print these works is now vested in the Universities of Oxford and Cambridge and the patentees of the MOWI. Basket vs. Cambridge University, 2 Burr. 661.-KERR.
inquiry concerning the original of these franchises, or royalties, on whieh wu touched a little in a former chapter:(f) the *right itself being an incorporeal hereditament, though the fruits and profits of it are of a personal
In the first place, then, we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are feree naturæ, and therefore the property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian's time:- Feroe igitur bestiæ, et volucres, et omnia animalia quæ mari, cælo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur."(9) But iu follows from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may or may not be exercised; with respect to the animals that are the subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man's grounds, for any cause, without the owner's leave; have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize.(h) Many reasons have concurred for making these constitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by general liberty. 3. For prevention of idleness and dissipation in husbandmen, artificers, and *others of lower rank; which would be the unavoidable consequence of universal license. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people ;(() which last is a reason oftener meant than avowed by the makers of forest or game laws. Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed; since, as Puffendorff observes, the law does not hereby take from any man his present property, or what was already
but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him.
Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowledge that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline than a branch of municipal law. The Roman or civil law, though it know no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. “Qui alienum fundum ingreditur, venandi aut aucupandi gratiâ, potest a domino pra () Pages 38, 39.
(1) Puff. L. b. 1, 4, c. 6, & 5. () Inst. 2, 1, 12
Warburton's Alliance, 324.
3 I am inclined to think that this reason did not operate upon the minds of those who framed the game-laws of this country; for in several ancient statutes the avowed object is to encourage the use of the long-bow, the most effective armour then in use; and even since the modern practice of killing game with a gun has prevailed, every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game.CORISTIAN