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OF THE PROTECTION OF COPYRIGHT IN INVENTION. “ I am unable to understand why that which springs wholly from within, and contracts no other right by its usurpation, is to be regarded as baseless, because, by the condition of its very enjoyment, it not only enlarges the source of happiness to readers, but becomes the means of mechanical employment to printers, and of speculation to publishers. ... The author's reward can but be so much as his readers are delighted to pay bim. ... Why then should we grudge it, any more than we would reckon against the soldier, not the pension or the grant, but the very prizemoney which attests the splendour of his victories, and in the amount of his gains proves the extent of ours?" -TALFOURD - Second Speech on Copyright, April 25, 1838.
“Considering that every new idea, whereof the manifestation or development may become useful to society, belongs originally to him who has conceived it; and that it would be to attack the rights of property in their essence, not to regard a discovery in industry as the property of its author; .. . considering also that all the principles of justice, of public order, and of national interest, require imperatively that public opinion respecting this species of property should be fixed, by a law which shall protect and render it sacred, it is decreed as follows." . . . - Preamble to the French Law of Patents (No. 308).
OF THE PROTECTION OF COPYRIGHT IN INVENTION.
Plastic Art is the subject of COPYRIGHT, both in n. its higher branches-chiefly by means of engraving- Copyright. and in its application to manufactures—whether by designs, or models, or patterns. In its literature it is connected with the copyright of books, and by many of its methods with the protection of mechanical inventions.
The exclusive right of publishing copies of any work of original invention is too frequently regarded as a bounty bestowed by the Legislature upon the inventor, for the purpose of encouraging the production of such works. In the recent discussions upon the proposed enlargement of the copyright of books, this assumption has run through at least nine tenths of the arguments which have been put forth on either side.
That this view of copyright is not only partial and imperfect as to its actual nature, in a legal sense, but also essentially unjust as to its origin and basis, will, I think, appear to every one (however accustomed to regard copyright as “a monopoly against the public") who will take the trouble to ask himself this questionif the putting forth of labour to create a valuable, distinguishable, and exchangeable product, which before had
no existence, does not constitute a RIGHT OF PROPERTY,* what does ?
That copyright property is different from other kinds of property, in several respects, as to its accidents, is most true, but its essential nature is ever the same. And in common with all other kinds, it claims at the hands of Law equal and perpetual protection.
Among the minor characteristics which difference this kind of property from most others, these two appear chiefly important, and they evidently arise out of its incorporeal nature, it is at once more difficult to identify, and more troublesome to protect.
These, indeed, are no reasons why law should abrogate its office. They are but cumulative proofs of the necessity of its interposition.
But if the possessors of this particular kind of property do, of their own motion, approach the legislature, and while requesting the special enactment of penalties more stringent, and of remedies more immediate, than those which are found adequate for the protection of other property, do voluntarily offer to cede some portion of their absolute right, then I can conceive that this cession may possibly afford sufficient ground for the enactment of a law restricting the period of the enjoyment of that right.
I say possibly, because I cannot admit that any right should be ceded in part, as the price of its adequate protection, adequate protection to all property being the proper end of law. But it may happen that out of the very circumstances which call for these special remedies, there arises a sort of contingent interference with other rights, which may fairly be matter of compensation. And I know of no ground which can justify the legisla
• "And surely, if there be degrees of right,” says Bishop Warburton, “ that of authors seemeth to have the advantage over most others; their property being in the truest sense their own, as acquired by a long and painful exercise of that very faculty which denominateth us men."
tive curtailment of a clear and positive right, except its necessary interference with other clear and positive rights.
This may be the more apparent, if we proceed to enquire what are the distinctions which difference the several kinds of copyright property amongst themselves.
In works of painting, the creative idea of the painter seems to be inseparably connected with the means used in Works
of Painting. to express it. Of the work of the painter's imagination -of that which is his property, we have no knowledge, independently of the canvass on which it is represented. The painter's object is the single picture he is employed upon, not the multiplication of it by copy-pictures.
Again : from this inseparable connexion of the conception with the execution, the painter derives à certain protection against piracy. And hence the question of property in a picture affects him only as respects the right to engrave it. The protection of the engraver is entirely distinct.
Undoubtedly this right to engrave, in respect of a picture which the painter sells, may be made matter of special agreement at the time of such sale : but where there has been no express stipulation, the law justly regards the right as going with the picture, and belonging to its possessor for the time being; assuming that in this case engraving was no part of the object of the painter's labour.
The engraver of a print, the author of a book, the cor composer of an opera, or the sculptor of a bust, is in in Prints,
Books, and quite a different position; in either case, the multipli- Sculpture. cation of copies is the very aim and purpose of his labour. The real work of his genius (materialised, so to speak, in the plate of the first, the manuscript of the second, the score of the third, the model of the fourth,) remains always his, and the imparting of printed copies or of plaster casts to the public, in whatever number, deprives him of no portion of his property, which lies not in the printed copies or the casts which he sells, but