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Report of the copy-right case of Wheaton v. Peters : decided in the Supreme Court of the United States : with an appendix, containing the acts of Congress relating to copy-right online

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to the government and security of person and property, which do
not rest for their authority upon any express and positive declaration
of the will of the legislature. A great proportion of the rules and
maxims, which constitute the immense code of the common law,
grew into use by gradual adoption, and received from time to time,
the sanction of the courts of justice, without any legislative act or
interference. It was the application of the dictates of natural justice,
and of cultivated reason, to particular cases. In the just language
of Sir Matthew Hale, the common law of England is not the pro-
duct of the wisdom of some one man or society of men, in any one
age, but of the wisdom, counsel, experience, and observation of
many ages of wise and observing men. And, in accordance with
these sound principles, and as applicable to the subject of copy-right,
are the remarks of Mr. Christian, in his notes to Blackstone's Com-
mentaries, (2 B. Com. 406, and note.) Nothing, says he, is more erro-
neous than the practice of referring the origin of moral rights, and the



112

sysfefti of natural equity, to the savage state, which is stipposedi to have
preceded civilized establishments, in which hterary composition, and
of consequence 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 neces*
sarily assent tOi No proposition seems more conformable to that
criterion, than that every one should enjoy the reward of his labour ;
the harvest, where he has sown, or the fruit of the tree, which he has
planted. Whether literary property is sui generis, or under whatever
denomination of rights 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
copy-right ought to be esteemed an inviolable right, established in
sound reason and abstract morality. It is unnecessary, for the pur-
pose of showing my views upon this branch of the case, to add any
thing more. In my judgment, every principle of justice, equity, mo-
rality, fitness, and sound policy, concur in protecting the literary
lobours of men to the same extent that property acquired by manual
labour is protected.

The objections to the admission of the common law right of authors
are generally admitted to be summed up in all their force and strength
by Mr. Justice Yates, in the case of Millar v. Taylor. These ob-
jections may be classed under two heads : the one founded upon the
nature of the property, or the subject matler ofthe right claimed, and
the other on the personal abandonment of the right by the author's!
publication. The first appears to me to be too subtle and metaphy-
sical to command the assent of any one, or to be adopted as the
ground of deciding the question. It seems to be supposed that the
right claimed is to the ideas contained in the book. The claim, says
Mr. Justice Yates, is to the style and ideas of the author's composi-
tion, and it is a well established maxim, that nothing can be an object
of property which has not a corporeal substance. The property
claimed is all ideal — a set of ideas which have no bounds or marks
whatever — nothing that is capable of a visible possession — nothing
that can sustain any one of the qualities or incidents of property.
Their whole existence is in the mind alone. Incapable of any other
mode of acquisition or enjoyment, than by mental possession or ap-
prehension, safe and invulnerable from their own immateriality, no
trespass can reach ihem, no tort afl^ect them, no fraud or violence
diminish or damage them. Yet these are the phantoms which the
author would grasp and confirm to himself, and these are what the
defendant is charged with having robbed the plaintiff of.

He asks, can sentiments themselves, (apart from the paper on



113

wliicli they are contained,) be taken in execution for a debt, or if the
author commits treason or felony, or is outlawed, can the ideas be
forfeited ? Can sentiments be seized, or by any act whatever be vest-
ed in the crown ? If they cannot be seized, the sole right of pub'
lishing them cannot be confined to the author.

How strange and singular, says he, must this extraordinary kind
of property be, which cannot be visibly possessed, forfeited, or seized,
nor is susceptible of any external injury, nor consequently of any
specific or possible remedy.

These, and many other similar declarations, are made by Mr.
Justice Yates, to illustrate his view of the nature of a copy-right.
And he seems to treat the question as if the claim was to a mere
idea not imbodied or exhibited in any tangible form or shape. No
such pretension has ever been set up, that I am aware of, by any advo-
cate of the right to literary property, and his view of it would hardly
deserve a serious notice, had it not been taken by a distingushed
judge. Lord Mansfield, in the case of Millar v. Taylor, in defining
the nature of the right, or copy-right, says, "I use the word copy in
the technical sense in which that name or term has been used for
ages, to signify an incorporeal right to the sole printing and publish-
ing of something intellectual, communicated by letters." And this is
the sense in which I understand the term copy-right always to be
used, when spoken of as property.

The other objection urged by Mr. Justice Yates, that the publica-
tion by the author is an abandonment of the exclusive right, rests
upon more plausible ground, but is equally destitute of solidity.

This would seem, according to his view of the case, the main point
in the cause. The general question, he says, is, whether after a vol-
untary and general publication of an author's works, by himself, or
by his authority, the author has a sole and perpetual property in that
work, so as to give him a right to confine every subsequent publica-
tion to himself, or his assigns, for ever.

And he lays down this general proposition; that the right of publi-
cation must for ever depend on the claimant's property in the thing
to be published. Whilst the subject of publication continues his own
exclusive property, he will so long have the so!e and perpetual right
to publish it. But whenever that property ceases, or by any act or
event becomes common, the right of publication will be equally
common.

The particular terms in which Mr. Justice Yates states his propo-
sition are worthy of notice. He puts the case upon its being a gene-
ral publication, the meaning of which undoubtedly is, that the publi-
cation is without any restriction, expressed or implied, as to the use to
be made of it by the party into whose hands it might come, by pur-



114

chase or otherwise. Unless such was his meaning, the proposition,
I presume, no one will contend can be maintained. Suppose an ex-
press contract, made with a party who shall purchase a book, that he
shall not republish it, this surely would be binding upon him.

So if the bookseller should give a hke notice of the author's claim,
and a purchase of a book be made, without any express stipulation
not to republish, the law would imply an assent to the condition. And
any circumstances from which such an undertaking could be rea-
sonably inferred, would lead to the same legal consequences. The
nature of the property, and the general purposes for which it is pub-
lished and sold, show the use which is to be made of it. The usual
and common object which a person has in view in the purchase of a
book, is for the instruction, information, or entertainment to be
derived from it, and not for republication of the work. It is the use
of it for these purposes which is implied in the sale and purchase.
And this use is in subordination to the antecedent and higher right
of the author, and comes strictly within the maxim, sic utere tuo ut
alienum, non ledas. But the case is not left to rest on any implied
notice of the author's claim, and the conditions on which he makes
it public. This is contained on the title-page of the very book pur-
chased, and cannot be presumed to escape the notice of the pur-
chaser. It is there in terms announced, that the author claims the
right of publication ; and whoever purchases, therefore, does it with
notice of such claim, and is bound to use it in subordination thereto.
Mr. Justice Yates admits that every man is entitled to the fruits of
his own labour ; but that he can be entitled to it only subject to the
general rights of mankind, and the general rules of property, and
that there must be a limitation to such right, otherwise the rights of
others are infringed. The force of such limitation upon the right is
not readily perceived. If the right exists, it is a common law right,
growing out of the natural justice of the case, being the result of a
man's own labour. He thinks the statute of Anne fixes a just
limitation. But suppose no statute had been passed on the subject,
where would have been the limitation? The right existing, who
would have authority to say when it should end ? It must necessarily
be without limitation, and it is no infringement of the rights of others.
They enjoy it for the purpose intended, and according to the nature
of the property. The purchaser of a book has a right to all the
benefit resulting from the information or amusement he can derive
from it ; and if, in consequence thereof, he can write a book on the
same subject, he has a right so to do. But this is a very different
use of the property, from the taking and publishing the very language
and sentiment of the author, which constitute the identity of his
work.



115

Mr. Justice Yates puts the effect of a publication upon the ground
of intent in the author. The act of publication, says he, when
voluntarily done by the author, is virtually and necessarily a gift to
. the public, and he must be deemed to have so intended it. But no
such intention can surely be inferred, when the contrary intention
is inscribed upon the first page of the book, which cannot escape
notice.

The case of Percival v. Phipps, (2 Ves. and Beames, 19.) recog-
nises the implied prohibition against publishing the work of another,
arising from the very nature of the property. It was held in that
case, that private letters, having the character of literary composition,
were within the spirit of the act protecting literary property, and that
by sending a letter the writer did not give the receiver authority to
publish it. And this is the doctrine of Lord Hardwicke, in Pope v.
Curl, ("2 Atk. 342.) where it is said that familiar letters may form a
hterary composition, in which the author retains his copy-right, and
does not, by sending them to the person to whom they are ad-
dressed, authorize him or a third person to use them for the purpose
of profit, by publishing them, against the interest and intention of
the author. That by sending the letter, though he parts with the
property of the paper, he does not part with the property of the
copy-right in the composition.

But how stands the case with respect to the effect of publication
by the author, according to Mr. Justice Yates' own rule ? He says,
" in all abandonments of such kinds of property, two circumstances
are ncessary," — an actual relinquishing- the possession, and an inten-
tion to relinquish it. That the author's name being inserted in the
title-page, is no reason against the abandonment, for many of our
best and noblest author's have published their works from more
generous views than pecuniary profit. Some have written for fame
and the benefit of mankind. That the omission of the author's name
can make no difference, for if the property be absolutely his, he has
no occasion to add his name to the title-page. He cannot escape, it
seems, from calling the copy-right proper??/ although a mere idea, and
resorts again to his favourite theory, that it has no indicia, no distin-
guishing marks to denote his proprietary interest therein ; and hard,
says he, would be ihe law, that should adjudge a man guilty of a crime
when he had no possibility of knowing that he was doing the least
wrong to any individual. That he could not know who was the
proprietor of these intellectual ideas, they not having any ear marks
upon them, or tokens of a particular proprietor.

If, as Mr. Justice Yates admits, it is a question oi intention whether
the author meant to abondon his work to the public, and relinquish



116

all private and individual claim to it, no possible doubt can exist as
to the conclusion in the present case. Would a jury hesitate a mo-
ment upon the question under the evidence before the court. The
right set up and stamped upon the title-page of the book shuts the
door against any inference that the publication was intended to be a
gift to the public.

Mr. Justice Yates admits that so long as a literary composition is
in manuscript, and remains under the sole dominion of the author, it
is his exclusive property. It would seem therefore that the idea when
once reduced to writing, is susceptible of identity, and becomes the
subject of property. But property without the right to use it is empty
sound, says Mr. Justice Yates in Millar v Taylor, and indeed it would
seem a mere mockery for the law to recognise any thing as property
which the owner could not use safely and securely for the purposes
for which it was intended, unless interdicted by the principles of
morality or public policy.

It is not necessary that I should go into any particular examination
of the construction of the statute of Anne, or to what extent it may
affect the common law right of authors in England, because, as I shall
hereafter show, that statute was never considered in force in Penn-
sylvania. The mere common law right uninfluenced by that statute
is alone drawn in question under this branch of the case, and the
decision in Millar v. Taylor would seem to put that question at rest
in England, at that ^day. Mr. Justice Yates, in aid of his opinion,
relied much upon that statute, arguing that from the title, which 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," and from the provision in the act, that the sole
right should be vested, &c. for twenty-one years and no longer, the
right was created, and limited by the act, and did not rest upon the
common law.

The other three judges however maintained, that an author''s right
was not derived from the statute, but that he had an original perpetual
common law right and property in his work, and that the statute was
only cumulative, and giving aditional remedies for the violation of tiie
right. That the preamble in the act, proceeds upon the ground of a
right of property in the author having been violated, and that the act
was intended as a confirmation of such right, and that from the remedy
enacted against the violation of the right being only temporary, it
might be argued that it afforded an implication that there existed no
right but what was secured by the act. To guard against which
there is an express saving in the 9th section of the act : " Provided
ihat nothing in this act contained, shall extend, or be construed to



117

extend, either to prejudice or confirm any right that the said univer-
sities or any of them, or any person or persons, have or claim to have,
to the printing or reprinting any book or copy already printed or
hereafter to be printed." That the words any right, manifestly meant
any other right than the term secured by the act. It may be observed
here, that whatever may be the just weight to be given to the argu-
ment drawn from the term ^'■vested,'''' and the words "no longer"
as used in the statute of Anne, and so much relied on by Mr. Justice
Yates, it can have no application to our acts of Congress, no such
term or provision being used. A writ of error was brought in this
case of Millar v. Taylor, but afterwards abandoned, and the law
was considered settled, until called in question in Donaldson v.
Becket, (4 Burr. 2408.) which came before the House of Lords in
the year 1774, upon an appeal from a decree of the Court of Chan-
cery, founded on the judgment in Millar v. Taylor.

Upon this appeal certain questions were propounded to the twelve
judges. Lord Mansfield, however, gave no opinion, it being very un-
usual, (from reasons of delicacy,) as the reporter states, for a peer to
support his own judgment upon appeal to the House of Lords. This
statement necessarily implies, however, that he had not changed his
■opinion. There were, therefore, eleven judges who voted upon the
questions.

One of the questions propounded, was. Whether at common Jaw

an author of any book or literary composition, had the sole right of

__^rs<j>nnit«^ and publishing the same for sale, and might bring an

action against any person, who printed, published and sold the same

without his consent.

Upon this question ten voted in the aflSrmative, and one in the
negative.

Another question was. If the author had such right originally, did
the law take it away upon his printing and publishing such book or
literary composition, and might any person afterwards reprint and
sell for his own benefit, such book or literary composition, against
the will of the author ?

Upon this question seven v.'ere in the negative, and four in the
affirmative.

The vote upon these two questions settled the point, that by the
common law, the author of any literary composition, and his assigns,
had the sole right of printing and publishing the same in perpetuity.

Another question propounded was. If an action would have lain
at common law, is it taken away by the statute of Anne ? And is an
author by the said statute precluded from every remedy, except on
the foundation of the statute, and on the terms and conditions pre-
scribed thereby ?

15



118

Upon this question six voted in the affirmative, and five in the
negative; and it will be perceived, that if Lord Mansfield had voted
on this question, and in conformity with his opinion in Millar v.
Taylor, the judges would have been equally divided.

That the law in England has not been considered as settled in
conformity with the vote on this last question, is very certain ; for,
it is the constant practice in chancery, to grant injunctions to restrain
printers from publishing the works of others ; which practice can
only be sustained, on the ground that the penalties given by the
statute are not the only remedy that can be resorted to. In Millar
V. Taylor, Lord Mansfield says, the whole jurisdiction exercised by
the Court of Chancery, since 1710, (the date of the statute of Anne,)
against pirates of copies, is an authority, that authors had a property
antecedent, to which the act gives a temporary additional security.
It can stand upon no other foundation, and in the case of Bedford
V. Hood, (7 Term, 616.) it was decided, that an author whose work
is pirated before the expiration of the time limited in the statute,
may maintain an action on the case for damages against the offend-
ing part3^ Lord Kenyon says, 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 vs'ithin the time limited
by the act of Parliament. Within those periods the act says, that
the author shall have the sole right and liberty of printing, &c.
Then the statute having vested that right in the author, the common
law gives the remedy by action on the case for violation of it, and
that the meaning of the act in creating the penalties was to give an
accumulative remedy; and in this all the judges concur; and Mr.
Justice Grose observes, that in the great case of Millar v. Taylor,
Mr. Justice Yates gave his opinion against the common law right of
authors, but he was decidedly of opinion that an exclusive right of
property was vested by the statute for the time limited ; and he says
that by the decision in the House of Lords, oi Donaldson v. Becket,
the common law right of action is not considered as taken away by
the statute of Anne, but that it could not be exercised beyond the
time limited by that statute ; and it is worthy of notice, that this
action on the case for damages was sustained, although the work was
not entered at Stationers' Hall, nor the author's name affixed to the
first publication. This, Lord Kenyon observes, was to serve as a
notice and warning to the public, that none might ignorantly incur
the penalties and forfeitures, given against such as pirate 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.

From this view of the law as it stands in England, it is very clear



119

that previous to the statute of Anne, the perpetual common law right
of authors was undisputed. That after that statute, in the case of
Millar v. Tat/lor, it was held, that this common law right remained
unaffected by the statute, which only gave a cumulative remedy.
That the subseciuent case oi Donal hon v. Beckct, limited the right to
the times mentioned in the statute ; but that for all violations of the
right during that- time, all the common law remedies continued, al-
though no entry of the work at Stationers' Hall had been made, ac-
cording to the provisions of the statute, such entry being necessary
only for the purpose of subjecting the party violating the right to the
penalties given by the act.

I do not deem it necessary particularly to inquire whether, as an
abstract question, the same reasons do not exist for the protection of
mechanical inventions as the productions of mental labour. The in-
quiry is not whether it would have been wise to have recognised an
exclusive right to mechanical inventions. It is enough, when we are
inquiring what the law is, and not what it ought to have been, to find
that no such principle ever has been recognised by any judicial de-
cision. The argument was urged with great earnestness by Mr.
Justice Yates, in Millar v. Taylor, but repudiated by Lord Mans-
field and the other judges. With respect to copy-rights, however, the
law has been considered otherwise, and the original common law
right fully established, though modified in some respects by the statute
of Anne.

I shall proceed now to some notice of the light in which copy-
rights have been viewed in this country. It appears from the jour-
nals of the old Congress, (S Journal, 257.) that this question was
brought before that body by sundry papers and memorials on the
subject of literary proper^f/, and which were referred to a committee,
of which Mr. Madison was one ; and on the 27th of May, 1783, the
following resolution was reported and adopted : —

" Resolved, That it be recommended to the several states, to se-
cure to the authors or publishers of any new books, not hitherto print-
ed, being citizens of the United States, and to their executors, ad-
ministrators, and assigns, the copy-right of such books for a certain
time, not less than fourteen years from the first publication, and to
secure to the said authors, if they shall survive the term first mentioned,
and to their executors, administrators, and assigns, the copy-right of
such books, for another term of time not less than fourteen years,
such copy or exclusive right of printing, publishing, and vending the
same, to be secured to the original authors or publishers, their execu-
tors, administrators, and assigns, by such lavi^s and such restrictions,
as to the several states may seem proper."

This right is here treated and dealt with as property already ex-



120

isting, and not as creating any thing which had previously no being.
It is spoken of as something tangible, that might pass to executors
and administrators, and transferable by assignment. And the re-
commendation \o the states was to pass laws to secure such right.

It must be presumed that Congress understood the hght in which
this subject was viewed in the mother country, and it is deserving of
notice that Mr. Madison, one of the committee, afterwards wrote the
number in the FederaHst, where this subject is discussed, and where
it is expressly asserted, that this has been adjudged in England to be
a right at common law. And it is worthy of remark also, that no
mention is here made of any right in mechanical inventions ; and
although the arts and sciences are connected in the same clause in


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Online LibraryHenry WheatonReport of the copy-right case of Wheaton v. Peters : decided in the Supreme Court of the United States : with an appendix, containing the acts of Congress relating to copy-right → online text (page 13 of 20)