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eth an exclusive title to his copy, without invading my property: for though he may be said to build on my foundation, yet he rears a different superstructure. An inconsiderable addition or improvement, however, will not support his claim: the supplying literal or verbal omissions, or the correéting of literal or verbal errors, for instance, will not be sufficient to found a new right in him: and a Jury endowed wish the flightest degree of common understanding, may, be the subject what it will, distinguish, or be taught to distinguish, where the difference is effential, and where it is evasive."
If this be not thought a fufficient answer to what the Enquirer advances, about perplexing the courts with causes of this kind, we may venture to say, that an exclusive right to the title, form, and composition of the piece, will be liable to no such perplexity; and that such a right is all that cither Authors or Bookfellers expect the law can fecure to them.
As to what has been advanced on either side the question, about Utility as the basis of property in this subject, it has been to little purpose. Mere pleasure, says the Enquirer, is not the object of the Legislature ; and therefore books of entertainment, we suppose, are not susceptible of property. The term, Utility, however, is here made use of in a vague and indeterminate sense. Does it mean a physical or political utility? Is it that of individuals or of society? There are many inventions and discoveries that have been adopted and encouraged, as useful to fociety, which have been nevertheless evidently destructive to our species. Mere amusements and idle diffipations have also their political use. And there are some governments that would think the exhibitions of a popular actor or buffoon more useful than the discovery of the longitude. It is idle, therefore, to talk of utility as the basis of property, before we ascertain what that utility is. We do not deny that the utility of a book is problematical ; but we would be glad to know what new invention or design is not fo.
The second affertion of the opponents of literary property is, that fuppofing a literary copy susceptible of property, it is incapable of perpetual exclusive poffeffion.
If, indeed, this property be supposed to exist only in the fenical or doctrinal part of the book, we see no poflibility of Pering such perpetual exclusive posseflion. "But if we suppuss that property placed where it really exists, the difficulty vanishes. By its being incapable of such posession,
however, is farther understood that it is inconsistent with the principles and practice of the common-law, so to establish and protect this property. This matter we thall congder, therefore, under the next division of our subject.
What we have said above, respecting the nature of this property, may serve as an answer to what has been advanced, concerning that protection which the law is capable of afford ing it. How far it has been protected by the common-law of England, therefore, becomes the next object of consideration.
Both the Author of the Enquiry, and of the present Vindi. cation, have, in order to clear up this poínt, endeavoured to trace back the claim in question to its source, and to deduce thence an argument in favour of their different opinions, Their method is ingenious, but we think no argument drawn from thence can be conclusive. The estimation in which a property might be held when such property was of no value, is little to the purpose. The strongest hold, says the present writer, wherein the opponents of literary property have entrenched themselves, is in the fimilitude between a literary copy and a mathematical or mechanical machine.
It is admitted by all parties that at common-law, the inventor hath no property in the form of his machine ; and hence it is queried how the Author can claim any in his
The Author of a Letter to a Member of Parliament, endeavoured to establish an essential difference between a copy and a machine. His principal arguments were, That the chief expence of a machine is in the materials employed, whereas in that of a book it lies in the composition or invention. That the imitator of a machine must work with the ideas of the inventor, but that a book may be copied by the most ignorant and illiterate feribler : That the inventor of a machine hath plainly no regard to any one's benefit but his own, whereas the author writes for public use. These arguments the Enquirer engages to refute. He obferves, in particular, that it is not always true that the chief expence of a machine lies in the materials employed : That the claim of an ignorant imitator of a machine is equally good with that of the illiterate transcriber of a book; and that there are many useful machines invented, which are of no other benefit to the constructor than what accrues from the sale of them. " Where then, says he, is the justice that the profit of the
inventor should terminate in the individual machine, which possibly might cost him some years in inventing, and might be imitated by another in a few days ? The end of the invencor is not more fully obtained in the first individual machine, than the end of the author, in the first individual book.” Hence he concludes that if the inventor has, at commonlaw, no exclusive right in his machine, it must necessarily follow that the author hath none in his copy.
On the other hand, the present Vindicator takes upon him to second and enforce the arguments before advanced in support of the essential difference in question. To this end, he makes two distinctions in a literary copy; confidering it, I. as an ideal or doctrinal composition ; and II. as a manual or mechanical compofition. In the latter sense only he conceives it to resemble a machine, and to be esteemed an object of trade. “ Therefore, says he, if the question was, whether a printer should have a perpetual exclusive right of printing, the argument which places a book on the same footing with a machine, might apply with some force. But an author's right to a literary composition depends on different principles. It is a compleat compofition, before it is printed, and before it becomes an object of trade." We might here ask our author, however, what he means by an object of trade? He owns that a Writer may fell his original manuscript absolutely for a gross fum, before it be printed at all. Is it not then an object of trade ? If he has ever been at a bookseller's sale, he might know that copies and shares of copies are equally objects of trade with printed or bound books * How then can he maintain a literary copy to be only an object of trade, quatenus its mechanical composition ; that is, says he, the printing, &c? Again, he says,
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Supposing, however, that the transfering of copies from bookfellers to each other, as they are not the ultimate consumers, should be objected to, as a trade ; yet a machine may be as justly said to be compleated, when the design of it is fully and compleatly perfected and a draughe of it made, as a book when the manuscript is finished. New invented designs, and drawings of machines, may be sold 10 mechanics as well as copies of books to booksellers ; and one is in every care just as much an object of trade as the other. If there be sometimes more difficulty in conftructing a mechanical engine from a draught or design, thin in printing a book from a manuscript, there is at other times much less. That design also which is not reducible to praclice is no more a perse: design, than an illegible manuscript, is a perfect copy of a book.
“ A machine, if exhibited to view, may be copied or imitated without the leave of the inventor—but an author may produce his copy, may use it in public, and suffer it to be inspected, and yet no one without his consent can make themSelves masters of the contents.” Now we may safely venture to deny the truth of the affertions here advanced both in the one case and the other, as they thus stand expressed in general and indefinite terms. It must be a very simple machine indeed that, being exhibited to view, may be copied or imitated without leave of the inventor. An engine of a complicated structure could not be thus imitated. Again, what copy can be produced, made use of in public, be inspected, and yet no one, without the consent of the author, be able to make himself master of the contents ? If by inspection, indeed, our author means a bare, fuperficial view of the printed book, and not a perusal of it, we deny that such copy is publickly exhibited in the same manner as a mechanical invention or machine whose component parts are laid open to the eye of the spectator ; without which it cannot be imitated. Suppose, for instance, so complicated a piece of mechanism as a watch, had been invented at once, and by one man ; would any body have known how to imitate such a machine by looking on the case or the dial plate ? If you say the watch is not exhibited to view unless it be opened and its movement exposed and subjected to examination ; so we say must the book too, and be submitted to as long and as curious a perusal; in which case it must be a very voluminous and extraordinary book indeed that might not be sooner imitated than the me chanism of a watch. It may be said a man must have a prodigious memory to retain all the sentences in a book : but we know not that it is essential to a book to be too voluminous for the memory; nor that all, which may be original and worth imitating in a book, may not be stolen from it without our being under the necessity of remembering the words of a single period.
To this we may add, that a machine may, with as much propriety, be divided into a doctrinal and mechanical composition as a book ; and that so far is the imitator of the former from being under the necessity of working with the ideas of the inventor, that he has no more to do with those ideas than an amanuensis has to do with the idcas of his author. The inventor of a machine must know and consider the nature of mechanic powers, the friction and other resistances of bodies, and must form not only a thcoretical system of his
design, design, but must sketch out its several parts so far in idea that he may lay them down when he pleases on paper. A machine
be invented and defigned long before it be conftructed. The construction is frequently the easieft part,
and merely a manual operation. An imitator needs no knowledge of all this ; he has only to follow his draught or model. There are to be found numbers of excellent workmen in London, who, so far from knowing the theory of the machines they construct, know not even their use when they have made them.
In a word, we think the advocates for literary property a little unfortunate, in their insisting fo tenaciously, and laying fo great a stress, on this pretended difference. It is with much greater success the present writer hath undertaken to confute what the Enquirer had advanced, respecting the right in question having been recognized at common law.
« Let us suppose, says he, a literary copy to be, a personal thing, and it will be found to have every quality, by which the common law of England hath defined and decribed this species of property. For it may be acquired. 1. By the King's Prerogative. 2. By Gift. 3. By Sale. 4. By theft. 5. By testament. 6. By administration.*
" It may likewise be recovered in the same manner as any other personal property : for if any one wrongfully poffeffeth himself of an author's copy, he may sue what the law calls a mixed action against him ; that is an action to recover as well the thing demanded, as damages against the wrong doer for the unjust detention : and we may challenge the oppofers of literary property to produce an instance where it cannot be governed by the established rules of law,”
The division of property into corporeal and incorporeal (fays this writer) makes no dificulty in this case. For though the fentiment or doctrine, considered abftractedly, is incorporeal and ideal, yet, being impressed in visible characters on the fcript copy is a corporeal subject.
The argument drawn by the writer of the Enquiry from the proposition that "ideas are not susceptible of property,” may be granied without admitting his conclufions. For though ideas considered abstractedly, are not susceptable of property, yet when imprefled in visible permanent characters on paper, they then become as it were incorporated, and a literary copy is thereby made the property of the author.