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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 immediate 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 inter 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.
I proceed to enquire what sort of protection is actually Actual
State of afforded to these several kinds of property, by the law
Copyright 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, the author for twenty-eight years, with reversion for the 54 Geo. II. 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 as laid FOR EVER the sole right of multiplying copies, and Donaldson
v. Becket. remedy by action, incident to every right, against any 4 Burr. who should infringe it.
This limitation of the ancient rights of authorship Speech, by statute,” said Mr. Serjeant Talfourd, in his admirable May 18, speech on first moving the House of Commons for leave Bill June 6, to bring in a bill 'to consolidate the law relating to 7 Will. IV. copyright,' has not been compensated by uniformity Statutable 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. Bach v. Longman (Cowp. 623), it was held by Lord Mansfield that music was within the last-named Act.
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 Engraved
By the 8th George II. chap. 13, the inventor or dePrints. signer of any print has the exclusive privilege of pub8 Geo. II.
lishing copies of it for the term of fourteen years. This term is extended to twenty-eight years, by the 7th
George III. chap. 38, and is vested in all who either 7 Geo. III.
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. Gev. 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.
With respect to the practical value of the protection thus afforded, it will suffice to quote the evidence of Mr. Martin, the celebrated painter and engraver.
“The expense,” says Mr. Martin, speaking of the attempt to protect the copyright in his engravings, “is so great, that even if we gain our action we sustain a great loss, and can only recover so much as we can prove have been sold; and it is no easy matter to prove more than the sale of one or two prints, although we may know a
* These statutes only apply to engravings taken from pirated plates, and not to such
may have been struck off illegally from a lawful plate. - See Murray v. Heath. 1 Barnewell and Alderson's Reports, 1804.
thousand have been sold; we are therefore ruined if we go to law.
expenses, with the certainty of an enormous increase if I hazard an action. The above cases are surely enough to prove that there is no efficient protection."
Next of SCULPTURE:-
ginal Sculpmaking copies of new models, busts, statues, “or any ture, Mowork in which the representation of any human figure
38 Geo.III. or figures, or the representation of any animal or animals c. 71.
shall be introduced, or any new cast from nature of any part or parts of the human figure, or of any part or parts of any animal,” is vested in the maker or proprietor thereof for the term of fourteen years, provided the name of the maker and the date of publication be put thereon. Persons making copies without the written consent of the proprietor, duly attested, may be sued for damages in a special action on the case.
This Act was found to be so defective, that it was Godson, actually held to be no offence to make a cast of a bust,
provided it were a perfect fac-simile of the original. It 54 Geo. III. was the purpose of the 54th Geo. Ill. c. 56, to remedy
these defects, and to give double costs in actions for piracy, together with an additional term of fourteen years in case the maker or original proprietor of such models, busts, statues, or casts, “or of such subject being matter of invention in sculpture,” should then be living, and should not have sold his copyright.
Such works of sculpture, then, as can be brought within the terms of the enacting clauses of the Act last mentioned have copyright for half the present period of books and prints, or fourteen years, with a contingent right on the inventor's surviving that term, not for the remainder of his life (as in the case with books) but for
a second term of fourteen years only. Omissions But it will be seen that a large and increasingly im
portant class of works are wholly excluded, even from
the protection accorded by this statute. For example, Bronze. a model of arabesque scrolls, or of foliage of any
description, however costly and beautiful the design, may be Arts' Evid. pirated with impunity. In clocks, candelabra, and the 1.Q. 592-3. like, works of this kind continually occur.
Mr. J. Buonarotti Papworth, the eminent architect, states that
piracy is common in works of architectural ornament; Ib. 1253-9. that artists will not execute a fine design on their own
account, well knowing that as soon as they have sold
of this Statute.
Architectural Or. nament.