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Price Seven Shillings and Sirpence, bound in cloth.
Vice-Chairman-JOHN WOOD, Esq.
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COPYRIGHT, or, as it was formerly termed, copy, has evidence of the opinion of many learned men as to the then been defined by Lord Mansfield, 'to signify an incorporeal state of the law. "It is further to be noted, that the non-ex right to the sole printing and publishing of somewhat in- istence of express decisions on the point is accounted for tellectual, communicated by letters. By this somewhat down to 1640 by the necessity of obtaining a license prior intellectual' is to be understood something proceeding from to the printing of anything, so that authors had no occasion the mind of the person by whom, or through whom, such a to apply to civil tribunals for protection, as none but themright is claimable. Yet, although mere republications of selves and those claiming under them were so licensed, and the compositions of others are no subject for copyright, it is he who printed a book without this was subject to enormous by no means limited to such productions as contain new or penalties. original ideas. Thus translations both from ancient and It has hardly been controverted in the various arguments modern languages, notes and additions to existing works, that exist upon this common-law right of copy that literary even mere compilations and abridgements, are similarly pro- compositions in their original state, and the incorporeal tected. As to these last however it is often a question for right of the publication of them, are the private and exclucourts and juries to decide, whether the compiler or abridger sive property of the author. The question made has been really intended to present the original matter in a more that this property was put an end to by publication: and useful or agreeable form, expended his own labour upou it, yet without publication it is useless to the owner, because and so entiiled himself to protection, or whether he only it is without profit, and property without the power of use sought, under false pretexts, to defraud the author or his or disposal is not property. În that state it is lost to society assigns of a portion of their lawful profits. This decision as a means of improvement, as well as to the author as a depends of necessity on the circumstances of each particu- means of gain. Publication is therefore the necessary act lar case. Further, a right of copy attaches to the authors and only means to render such a property useful to the of ideas expressed by other symbols as well as letters, to public and profitable to the owner." if, says Lord Mansmusical composers for example.
field, the copy which belonged to the author before publiThe origin of copyright must be sought in the general cation does not belong to him after, where is the common conviction which has always prevailed of its justice and ex
law to be found which says there is such a property before. pediency. When a man,' says Blackstone, 'by the exer- All the metaphysical subtleties from the nature of the tions of his rational powers has produced an original work, thing may be equally objected to the property before. It he seems to have clearly a right to dispose of that identical is equally detached from the manuscript or any physical work as he pleases ; and any attempt to vary the disposi- existence whatsoever. There is in fact nothing in the act tion he has made of it, appears to be an invasion of the of publication to vary the nature of the right, so that that right. Now the identity of a literary composition consists which is necessary to make a work useful and profitable entirely in the sentiment and the language. The same should be taken as destructive at once of an author's conconceptions, clothed in the same words, must necessarily be fessed original property against his expiessed will. It has the same composition; and whatever method be taken of accordingly been the almost unanimous opinion of the high exhibiting that composition to the eye or ear of another, by authorities who were called on to decide the point, that by recital, by writing, or by printing in any number of copies, the common law of England authors were entitled to copyor at any period of time, it is always the identical work of right, and as there was nothing in statute or custom to dethe author which is so exhibited, and no other man, it hath termine it, or distinguish this from other species of property, been thought, can have a right to exhibit it, especially for that such right was once perpetual. The arguments for the profit, without the author's consent.'
contrary opinion are collected in the judgment of Mr. Justice Accordingly it has been supposed that a common-law Yates in the case of Millan v. Taylor, 4th Burrow, p. 2354. right of copy existed in England previously to any statute From the above premises arose the question, after the on the subject. As a legal proposition however this cannot passing of the first statute respecting literary property in be supported by the proper and direct proof of a fair judi- 1710, whether by certain of its provisions this perpetual cial decision before the passing of the first statute relating copyright at common law was extinguished for the future. to it in the reign of Queen Anne; inasmuch as it never After sowe less important decisions in the negative on moappears to have been directly controverted up to that time. tion in the Court of Chancery and elsewhere, the question But, in tho absence of positive authority, it may be fairly in- was solemnly argued before the Court of King's Bench, ferred, from the old charters of the Stationers' Company, and during the term, when Lord Mansfield presided, in 1769. much more from their registers, whence it appears that some The result was a decision in favour of the common-law right thousands of books, even as early as the times of Elizabeth, as unaltered by the statute, with the disapproval however passed from one owner to another by descent, sale, and con- of Mr. Justice Yates. Subsequently, in 1774, the same veyance; from acts and ordinances of parliament which ne- point was brought under the consideration of the House of cessarily imply a recognition of it by the nature of their Lords, and the decision of the court below reversed by a provisions respecting printing; and from decrees of the majority of six judges in eleven, as Lord Mansfield, who Star-chamber, which, though not binding precedents, are adhered to the opinion of the minority, declined to inter
(THE PENNY CYCLOPÆDIA.]