54 Arguments for and against Literary Property. this difference to be accounted for? Not from any uncommon generofity in the bookfellers; not from any fuperiority in point of merit in the books; but from the idea of a common law right prevailing, and from that idea's being established by the determination of the court of King's Bench in the cafe of Miller and Taylor; for it was idle to contend that the subject of the prefent appeal was not exactly on the fame grounds. The appellants wanted to fanctify the importation of Scotch books into England, in the fame manmer as the importation of Scotch cattle. The book on which the prefent caufe was grounded, was written, indeed, by a Scotchman, but it was written in English, and originally printed in EngJand. The appellants had invaded the legal purchafer, by printing in Scotland, and offering the copies to fale in London; it was hoped, therefore, that heir Lordships would teach them that Literary Property was facred, by affirming the deeree. After the Attorney General had made a final reply to the arguments of the refpondents counfel, the Chancelfor fated the great importance of the fubject which had been argued; and, as he doubted not but that their Lordfhips would be defirous of hearing the opinions of the judges upon the cafe, he moved that the questions, in fubftance as follows, fhould be propounded to the Law Lords for their mature confideration. 1. Whether at common law, the author of any literary compofition had ane fole first common law right of print ing and publishing the fanre for fale, and could bring an action against any perfon for publishing the fame without his confent? 2. If the author had fuch right originally, did the law take it away upon his printing and publishing the faid book or literary compofition, or might any perlon re-print and publish the aid literary compofition for his own benefit, against the will of the author? 3. If fuch action would have laid at common law, is the fame taken away by the flatute of Queen Anne? Or is an author precluded by fuch flatule from any remedy, except on the fourdation of the faid ftatute? After the above queßions had been sevice read and put to the learned fudges, 4.ord Camden moved that the two folLowing might also be put, viz. F. Whether the author of any lite rary compofition, or his affigns, had the fole right of printing and publishing the fame in perpetuity by the com mon law? 2. Whether this right is any ways impeached, restrained, or taken away by the 8th of Queen Anne? The Judges having required time to deliberate, and in a few days being ready, the Chancellor refumed the caufe by obferving, that, "as the learned Judges might maintain diffimilar opinions upon the fubject, their Lordships attendance was required to hear the opi'nion of each Judge delivered feriatim." Baron Eyre then arofe and delivered his opinion, in fubftance as follows: He obferved," that great pains had been taken by the ingenious council for the Refpondents, to avoid confidering the fubject as at all connected with metaphyfic fubtleties; that fuch an attempt, though highly praife-worthy in those who had the intereft of their clients at heart, was yet totally impracticable, as every endeavour to disclaim the use of metaphyfic reafoning tended only to few how neceffary it was to the accurate difcuffion of the fubject. That the queftion, in fact, was refpecting a right to appropriate ideas? That the objects over which a right, and in which an exclufive property was claimed, were incorporeal exiftences, which could not be treated of with any degree of accuracy, without having recourfe to the aid of fcientific difquifition.” That the thinking faculty was a gift with which all men were endowed; that ideas produced by the operation of a thinking faculty common to all, fhould likewife be held common, and no more be deemed fubject to exclufive appropriation, than any other of the common gifts of nature.' Hence the Baron put an abfolute negative upon the first question, relative to the author of a book, or literary compofition, having a right at common law to the exclufive fale of fuch book or literary compofition." This the Baron denied in the moft pofitive terms. A right to appropriate ideas, was a right to appropriate fomething fo ethereal as to elude definition; fo intellectual as not to fall within the limits of the human mind to defcribe with any tolerable degree of accuracy. Ideas, if convertible into objects of property, fhould bear fome faint fimilitude to other objects of property; they did not bear any fuch fimilitude, they were altogether anomalous," Arguments for and against Literary Property. If, then, the notion of a common law right should be reprobated, fuch reprobation carried with it an explicit aufwer to the second question: there being no common law right, an action could not be maintained against the republishers of an author's book, or literary compofition, without his confent." The Baron next proceeded to brand an exclufive appropriation of literary works with the epithet of "A MONOPOLY," against every kind of which the ftatute of James I. had fufficiently provided. Yet the Baron contended, is that even monopolies, in fome cafes, were allowed; but then the fate had taken care to allow them only for a convenient time.” The Baron then reviewed the cafes which,by the Refpondents Counsel, had been adduced to prove "the fentiments of the Courts of K B. and Chancery in favour of a common law right." But the Baron contended, "that, although the Court of Chancery had frequently granted injunctions, it cautiouу avoided giving any final adjudication upon the matter. An antecedent commen law right was never hinted at; nor were the injunctions granted in the cafes cited at all in point; they had been granted on the appearance of fomething fraudulent upon the face of the tranfaction, as in the cafe of Pope and Curl." Nor did injuncions prove the Chancellor's opinion upon a matter of common law right, in confirmation of which, added the Baron, I will venture an anecdote. There is a paper now exifting, containing fome notes Lord Hardwicke had taken down, which fet forth, the fole and exclufive right of an author at common law to multiply copies for fale. In the margin of which paper, and oppofte to this very paffage, there is in Lord Hardwicke's own hand writing a very large Q which proves that his Lordship entertained doubts refpecting the lega lity of the pofition." The Baron then obferved, "that the council for the Refpondents had Lipped over the cafe of mechanical inventions." The Baron thought them highly commendable for fo doing, as they were all aware how ftrenuously every argument drawn from the cafe of mechanical inventions would militate against the intereft of their clients. The Baron confidered a book precifely upon the fame footing with any other mechanical invention, In the 59 cafe of mechanic inventions, ideas were in a manner embodied, so as to rendeɛ them tangible and visible; a book was no more than a transcript of ideas; and, whether ideas were rendered cognizable to any of the fenfes by the means of this or that art, of this or that contrivance, was altogether immaterial: yet every mechanical invention was common, whilft a book was contended to be the object of exclufive property ! So that Mr. Harrison, after conftructing a time-piece, at the expence of forty years labour, had no method of fecuring an exclusive property in that invention, unless by a grant from the State; yet, if he was in a few hours to write a pamphlet, defcribing the properties, the utility and conftruction of his time-piece, in fuch pamphlet he would have a right fecured by common law! though the pamphlet contained exactly the fame ideas on paper, that the time-piece did in clock-work ma chinery! The cloathing is diffimilar; the effences, cloathed, are identically the fame." On the whole, the Baron contended, "that a mechanic invention, and a literary compofition, exactly agreed int point of fimiliarity; the one therefore was no more entitled to be the object of common law property than the other; and as the common law was entirely filent with respect to what is called terary property, as antient ufage was against the fuppofition of fuch a property; and as no exclusive right of appropriating thofe other operations of the mind, which pafs under the denomination of " mechanical inventions," was vested in the inventor by common law, the Baron, for these reasons, declared himfeif AGAINST the principle of admitting the author of a book, any more than the inventor of a piece of mechanism, to have a right at common law to the exclufive appropriation and fale of the fame." This was an answer to the first and fecond questions. It was alfo an an fwer to the first question proposed by Lord Camden; for if an author had no right at all by common law, he could have none in perpetuity. But admitting him to have had fuch common law right; in reply to the third and fifth question, which asks, "how far the fatute of the 8th of Queen Anne affects the cafe, or takes away a common law right exifting antecedently in an author or his affignees?" Baron Eyre contended, " that every principle 56 The Difpute concerning the Moon's Motion flated. The Baron contended, "that he knew of no right the Crown had at common law to print what were deemed Crown copies; fuch exclufive right originating only from an exertion of the perogative. Before the invention of printing it was proper for the Crown to have copies of the public acts taken from the parliamentary rolls to tranfinit to the fheriffs of the feveral counties; and printing being no more than an expeditious art of tranfcribing copies, the fame power, and for pretty much the fame ends, continues now to be a part * of the Crown's prerogative, and as fuch the Crown takes care to have the Statutes printed for the public promulgation of the law. So, in virtue of the fame authority, Bibles and Commonprayer books are printed, and the copies of them thus multiplied for the Tervice of religion, which it becomes the chief magiftrate to protect; but no common law right was vefted in the Crown of thus printing and multiplying Crown cop es." [The Judges opinions in this great caufe to be continued.] Mr. URBAN, Y difficulty of defcribing flowing quant ties by dead numbers); for, if you can make a fimilar motion, it matters not whether it revolves round a table, or round the orbit of Saturn. I am fuiprifed the prefident of our royal fociety fhould mistake the effects of one motion, and afcribe another to it. The example he gave, of going round a table, with a candle in the center, and keeping his face to the candle, is a proof that the perfon did not fir upon his own axis, for, tho' he faces different parts of the universe, this is in confequence of his fingle nio. tion round the table, and, to thofe perfons who viewed him,out-side of his orbit, he muft fhew all his fides, as the moon does, viewed from any other planet but our earth; for, let what body will move round another body, if it does not move upon its own axis, it must conftantly fhew the fame face to the body it moves round; and to the rest of the univerfe, outfide its orbit, it muft fhew its different fides, in confequence of its first motion, though it be only one motion: as the nail in a coach-wheel, when it moves round the center, keeps the fame point to the center, and to the reft. of the universe prefents its different fides; and that it does not move upon its own axis is palpable. The nail in a coach-wheel is not a bad illuftration of the different motions of the moon; for, while a coach is running round the ring in Hydepark, the head of one of the nails performs the fame motions that the moon does in its monthly and annual attendance upon the earth, especially if it fhould be loose, to answer the moon's libations. GAMALIEL SMETHURST. W. S.'s favour is received, and fhall be inferted in our next; as is that of T. Row. J. J.'s favour is likewise received, and is under confideration, much having been faid on the fubject in former Magazines. Shakespeare's allufions to fcripture in our next.-This corref pondent's further favours are requested, particularly the account of the Abyffinian MS. Our correfpondent Q.'s favour came too late for the prefent month. Dædalus is the laft of five on the fame fubject. Simplex's remarks are difcontinued, to give the author an opportunity of fupporting his charge against Mr. Ferguson. Other letters that have been received in the course of the month are under contideration. 1 For the different crowns worn by our Kings, fee the last Supplement. |