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OF THE PROTECTION OF COPYRIGHT IN INVENTION.
Plastic Art is the subject of COPYRIGHT, both in Nature of 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 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 Copyright 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 a 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
Copyrigbt 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
in the plate, the manuscript, or the model which he Copyright 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 Mecbanical Inventors of this class, to whom we are all so deeply or Chemical indebted, may be arranged under two divisions—those
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
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
between matters of
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 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 the Bill principle in legislation that the public are justly entitled the Law of to participate within a limited time in every valuable
&c. p. 1. discovery and invention.” . . . And again:
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 bad 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."