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eht in the plate, the manuscript, or the model which he in Patterns retains. for Manu. factures,
· The draughtsman, who designs a pattern, whether for a stove-grate, or a piece of silk, or a printed cotton, differs from all these only in that his personal interest in his design usually passes over to the manufacturer by whom it is commissioned. And its object is the multiplication of copies in one particular fabric, and in no other.
There remains the case of the author of a mechanical invention, or of a chemical discovery applicable to some kind of manufacture: in other words, of that large class of inventors whose multifarious interests have been
hitherto intrusted to the protection of our patent laws. :: . and in Mechanical Inventors of this class, to whom we are all so deeply or Chemical
al indebted, may be arranged under two divisions—those Inventions.
who invent some machine or some process with the view of benefiting by its use in the trade in which they are themselves engaged; and those who invent with the view of imparting their inventions to others for profit.
Now, provided the inventions of either class are really new, and have never before been publicly used, I am at a loss to perceive why the claim to property in them should be less absolute or less perpetual than the claim to any other kind of property. Nor can I at all understand in what sense it is true that the exclusive use of that which was not before known can be said to be a “monopoly against the public.”
But if, in practice, it be found that the exclusive use or the exclusive right of vending the great majority of mechanical and chemical inventions cannot be adequately and efficiently protected, without barring the improvement* of those inventions in all future time,
* For instance, one man first conceives the idea of introducing gas into a bollow wheel to turn it round, and constructs the first revolving gasometer. He takes a patent for it. In the course of a short time it is found that, from its defective construction, this machine will not answer its purpose, and it therefore does not come into use. Another man sees
the Bill to Amend
then it becomes evident that such right, however positive, will in course of time trench upon other rights not less positive. And hence arises a reasonable argument for the legislative limitation of the term of this right, for the very purpose of adequately protecting its fruits.
And here, I apprehend, lies the true distinction Distinction between the copyright in books and works of art, and be that in mechanical inventions, which has been so fre- Copyright quently kept out of sight. Of late, indeed, the objectors of Patent to the enlargement of the former have gravely put forth such arguments as the following: “Copyright and objections patent-right are synonymous, and it is an acknowledged to principle in legislation that the public are justly entitled the Law of to participate within a limited time in every valuable &
e &c. p. 1. discovery and invention.” ... And again : “Already literary men have secured to them, without any expense, an absolute patent right to twice the extent which is given to the author of the most splendid discoveries,”* &c. &c.
If evidence on a matter so obvious were necessary, experience has shown that the copyright in a good book, upon any subject, can never prevent the publication of a better. The preservation of the copyright, on the contrary, has always tended to improve the book itself in its subsequent editions. And of this, our literature presents many splendid proofs.
In brief, it may be said that, while the perpetual
that the idea is good, but the mode of execution bad, and invents a better. He makes the first machine that will answer its purpose, and goes on making. But the first man seizes on the second man's method ; makes all his machines by it; brings his action for infringement, and obtains a verdict. Lord Tenterden holding that the second man had no property in his improvement during the term of the first man's patent, the principle being the same.—See Moody and Malham's Reports, vol. i., p. 280.
• As a specimen of reasoning, this resembles the too celebrated saying of King George III.: “If Dr. Dodd be pardoned, the Perrots will have been murdered.”
exclusive right in mechanical inventions would really, to some extent, involve “ an appropriation of ideas,”* a perpetual literary copyright leaves the use of the ideas free to all the world.
I do not dwell on many minor, though not entirely unimportant, distinctions, which further difference these two kinds of copyright. It may suffice merely to indicate a few of them: e.g. in most cases the reward of an ingenious and useful machine will be far more iminediate than that of any equally ingenious and useful book ; in most cases, too, even the imitation of such a machine involves considerable thought and labour, but the piratical reprinting of a book involves neither ;-and above all, in the case of the most important mechanical inventions, there is, from their very nature, a strong probability of independent reproduction, which, in the case of equally important books, does not exist at all. No one imagines that if Shakspeare had not written Hamlet, anybody else would have written it. On the other hand it is more than probable, that if Arkwright had not invented his important improvements in spinning machinery, Crumpton would, ere long, have discovered similar improvements. But it is not, I repeat, on these minor differences that I wish to insist.
Nor do I enter upon any elaborate arguments to prove that the interests of authors and inventors, and those of the public, are precisely the same. I believe, indeed, that the more closely the question is examined the more plainly will this truth be manifest. But it is sufficient for me that the careful maintenance of the rights of property is the interest of the public, and that this, and nothing else, is what authors and inventors claim at the hands of the Legislature.
• "An appropriation of ideas.”- See the celebrated argument of Mr. Justice Yates in Millar v. Taylor, reported in 4 Burrows, 2,303 seq. ; and Mr. Hargrave's notes.
I intưi then, that, as regards the productions of the author, the sculptor, the engraver, or the composer, there is nothing in their nature which should limit the term of the secure enjoyment of them, or in any way preclude the full participation in all the rights accorded by law to property in general; and that, as regards mechanical and chemical inventions, there is that in their nature which renders it necessary to limit the term of property in them, for the purpose of securing fair and equal protection to all inventors of every grade.
law as laid
I proceed to enquire what sort of protection is actually Actual
State of afforded to these several kinds of property, by the law Co of Great Britain in its present state. And first, of Protection. COPYRIGHT IN Books. By the 54th Geo. III. c. 156, books * are secured to 1. of Books,
54 Geo. III. the author for twenty-eight years, with reversion for the 2 remainder of his life, should he survive that term. It is to be observed that, by the common law of England, as solemnly expounded by a majority of seven to four of the judges, and as sustained by the additional opinion Common of Lord Mansfield, the author of an original work had law
down in FOR EVER the sole right of multiplying copies, and Donaldson
- v. Becket. remedy by action, incident to every right, against any 2. Bu who should infringe it.
2408. “This limitation of the ancient rights of authorship Speech, by statute,” said Mr. Serjeant Talfourd, in his admirable 1 speech on first moving the House of Commons for leave Bill,June 6,
1837. to bring in a bill 'to consolidate the law relating to 7 Will. IV. copyright,' has not been compensated by uniformity Statutable
limitations in the details of the law, by simplicity in the modes of not comproving the right or of transferring it, or by the cheap- pensated
either by ness or adequacy of the remedies. The penal clauses certainty of
- remedy, or • The words of the Act, like those of the former Act of the 8th of Anne, are, books and other writings. In Bach v. Longman (Cowp.623), it was held by Lord Mansfield that music was within the last-named Act.
8 Geo. II.
by simpli- have proved wholly worthless... and no provision city and cheapness is made for cheap transfer.” of transfer. We proceed to the case of Prints: 2. Of En
By the 8th George II. chap. 13, the inventor or degraved Prints. signer of any print has the exclusive privilege of pub
lishing copies of it for the term of fourteen years. This c. 13.
term is extended to twenty-eight years, by the 7th
George III. chap. 38, and is vested in all who either 7 Geo. III. c. 38.
invent and engrave the design, or who engrave from the design or picture of another. And it includes “the prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print.” The remedy for infringement is an action on the case for damages, which are recoverable at the rate of five shillings for each pirated copy "published, sold, or exposed to sale," and all such copies are to be forfeited and destroyed.* Under either of these statutes actions
must be brought within six months. Geo. III. The 17th George III. chap. 57, further gives the pro
prietor an action for damages, with double taxed costs. No limitation is here imposed as to the period of bringing the action. It results, then, that engraved prints have the same term as books, but without any contingent
interest on the author's surviving that term. Practical With respect to the practical value of the protection Operation of these
thus afforded, it will suffice to quote the evidence of Statutes. Mr. Martin, the celebrated painter and engraver. Martin's “The expense,” says Mr. Martin, speaking of the attempt to proEngrav
tect the copyright in his engravings, “is so great, that even if we Evid, on gain our action we sustain a great loss, and can only recover so much Arts, &c.
as we can prove have been sold; and it is no easy matter to prove Sess. 1835, p. 66.
", more than the sale of one or two prints, although we may know a (Q. 943-6.)
ing that term.
* These statutes only apply to engravings taken from pirated plates, and not to such as may have been struck off illegally from a lawful plate. - See Murray v. Heath. 1 Barnewell and Alderson's Reports, 1804.