Richard Bowker - Copyright - Its History and Its Law

Blackstone

Blackstone in his Commentaries of 1767, in which the word copyright seems to have been first used, lays down the fundamental principles of copyright as follows: "When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition; and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may, perhaps, be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway."

Property by creation

There is nothing which may more rightfully be called property than the creation of the individual brain. For property (from the Latin proprius , own) means a man's very own , and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of own -ership is that if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual thinking it had put it aside without such record, it would not, in any practical sense, exist. We cannot know what "might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity thus to materialize their thoughts.

Are thoughts created?

It is sometimes said, as a bar to this idea of property, that no thought is new – that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, – a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy – aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land, Farmer Smith can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado," though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona , that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

Property in unpublished works

Property right in unpublished works has never been effectively questioned – a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has "supreme control" over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent. "If he lends a copy to another," says Baron Parke, "his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it, he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

The question of publication

It is at the moment of publication that the undisputed possessory right passes over into the much disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use – that is, get beneficial results from – his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain "an implied undertaking" that the buyer has liberty to use his copy, but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass, to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

Inherent right

The inherent right of authors is a right at what is called common law – that is, natural or customary law. The common law, says Kent, "includes those principles, usages, and rules of action applicable 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." "The common law or lex non scripta ," says Blackstone, "depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary." So far as concerns the undisputed rights before publication, the copyright laws are auxiliary merely to common law. Rights exist before remedies; remedies are merely invented to enforce rights. "The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger in his standard English work on "The law of copyright," "is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein."

Statutory penalties

After the invention of printing it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became, therefore, the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished.

Statute of Anne

Supersedure of common law right