THE

MONTHLY REVIEW,

For AUGUST, 1774.

ART. I. The Queftion concerning Literary Property, determined by the Court of King's Bench, on the 20th of April, 1769, in the Caufe between Andrew Millar and Robert Taylor; with the Separate Opinions of the four Judges, and the Reafons given by each in Support of his Opinion. By Sir James Burrow. 4to. 127 Pages. Strahan and Woodfall. 1773.

ERHAPS there never was a period which better deserved to be called the Golden Age of Authors than the prefent. In former times, when the circulation of literary productions was confined, and the number of readers was fmall, genius often lay buried in obfcurity, and merit was not fufficient, without a fortunate coincidence of circumftances, to enfure protection and support. The moft fuccefsful adventurers could receive no other recompence than the patronage of the great, and at beft could only enjoy a precarious and irkfome dependence; and many a true fon of philofophy or the mufes, who deferved a better fate,

Check'd by the fcoff of Pride, by Envy's frown,

And Poverty's unconquerable bar;

In life's low vale remote hath pined alone,

Then dropt into the grave unpitied, and unknown.

It is only fince the art of printing rendered it easy to multiply copies at pleasure, and the progrefs of fcience and letters has introduced a tafte for reading among people of all claffes, that authors have had it in their power to repay themselves for their labours, without the humiliating idea of receiving a favour, where they had a right to claim a debt. Instead of fubmitting to practife the arts of adulation in order to obtain an uncertain reward from his patron, an author has now only to offer copies of his production to public fale, and he is in general certain of reaping as much advantage-not, perhaps, as his vanity promised him-but as the real merit of the work gives him a right to expect.

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Nothing can prevent this, except the rapaciousness of those whom he employs as his agents, or appoints his affigns, or the knavery of literary pirates, who, by republishing his work without his confent, rob him of the natural fruits of his labour. It is poffible for him to arm himself against the former, provided he poffeffes a larger portion of worldly wisdom than commonly falls to the lot of authors; or he may perhaps escape it, by falling into the hands of an honeft bookfeller, who will not think it quite an equitable diftribution to give his author all the fame, and pocket all the profits himfelf-Era Sofiis-longum avum fcriptori. But against piratical invaders of his property he can have no fecurity, excepting what is granted him by the laws of his country.

Whether this fecurity fhall be given to authors only for a term of years, or for perpetuity, is a queftion of importance both to authors and to the public: to authors, becaufe, unless they are to divest themselves entirely of the feelings of humanity, it cannot be indifferent to them whether their labours fhall be thrown into the public ftock, or fhall be beneficial to themselves and their connections; and because the degree in which they are fo muft depend upon the fecurity and the duration of their literary property: to the public, becaufe literary works, like all others, will be undertaken and pursued with greater fpirit, when to the motives of public utility and fame, is added that of private emolument.

This great queftion, as it is juftly ftyled, has of late been largely difcuffed in our fuperior courts of judicature; and though at firft given in favour of authors and their affigns, has fince been determined against them. The chief grounds of these different determinations are now before the public, in the works which will come under our notice in this and fome enfuing articles; and it is in their power, as they have an undoubted right, to judge of the propriety of thefe decifions. To facilitate this judgment, we propose to bring into a concise view the feveral arguments urged on each fide of the queftion, as related in the feveral publications now before us.

In the prefent work Sir James Burrow recites, with great accuracy and minutenefs, the opinions given by the five judges WILLES, BLACKSTONE, ASTON, YATES, and MANSFIELD, on the cause in which Andrew Millar, the plaintiff, charged Robert Taylor, the defendant, with publishing and felling copies of Thomfon's Seafons, of which Millar was the fole proprietor.

The two chief points difcuffed on this caufe are, Whether the copy-right of a book belongs to the author by the common law; and whether, fuppofing fuch a right, it be taken away or reftrained by 8 Anne, c. 197

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In fupport of the common law-right, Mr. Juftice Willes urged, that the copy of a book, which had been used for ages as a term to fignify the fole right of printing and felling, fhews this fpecies of property to have been long known; quoted feveral decrees of the ftar-chamber, proclamations, &c. to prove that pirating copies was an abuse noticed in general terms; and obferved, that no licence could be obtained to print another man's copy, because the thing was immoral and unjust.

Judge Blackftone fhowed, from many entries in the books of the Stationers Company, from 1558 downwards; and from decrees of the ftar-chamber, and several ordinances made during the long parliament, that it was continually taken for granted that copy-right exifted. The act of 13, 14 Car. 2. prohibits printing without confent of the owner. Several cafes which arofe after this time, in which it was difputed whether particular works belonged to the author or the king, prove that copy right was then a well known claim.

The Court of Chancery has always proceeded upon the idea of a common law-right; neither requiring, in order to obtain relief, that the book should be entered, nor that the action fhould be brought within three months after the offence; both which are neceflary on the act of Q. Anne. A bill in Chancery is not given as the remedy in the act; the whole jurifdiction exercised by the Court of Chancery against pirates of copies, therefore supposes a precedent property in common law. All the injunctions granted and acquiefced in, prove that this Court has proceeded upon the ground of a common law-right. There are copies of which the king is proprietor, independent of every prerogative idea; thefe are held by common law-right, on the fame footing with private copy-right.-The publishing of an original or tranfcript, given or lent to a man to read, is a violation of the author's common law-right to the copy, and has often been fo determined. There is then a time when, without any 'pofitive ftatute, an author has a legal property in the copy of his own work. The author's fale of copies of his work does not neceffarily lay open this copy; if fo, crown copies would become open upon publication: the contrary of which is fettled.

The act of the eighth of Q. Anne could not be meant to take away copy-right, or declare there was no fuch property at the common law; because the preamble speaks of detriment to authors by the liberty which had been taken to reprint their works without their confent, which could have been no injury if there had been no prior right in authors; and because it has this provifo to fave the ancient common law: "Provided that "nothing in this act contained shall extend, or be construed to "extend, either to prejudice or confirm any right that the faid

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"univerfities, or any of them, or any person or persons have, or "claim to have, to the printing or reprinting any book or "copy already printed, or hereafter to be printed."

Mr. Juftice ASTON eftablished the right of copy, on the fundamental principles of property, as laid down by Woolafton in his Religion of Nature. Property includes the fole right of ufing and difpofing of any thing. A partial difpofition is not to be carried beyond the intent of the proprietor. The true definition of the object of property is, not that which may be faftened on, but that which is capable of being diftinguished. Literary property agrees with this definition.

It is fettled and admitted, and is not now controverted, "that literary compofitions in their original ftate, and the incorporeal right of the publication of them, are the exclufive property of the author; that they may ever be retained fo, and that if they are ravifhed from him before publication, trover or trefpafs lies." Now, how are the damages in this cafe to be estimated by the value of the ink and paper? or by the profits which the work would probably have produced the author by publication Certainly the latter. But what would be the value of a work to the author, if after publication it is given to the public, and his private property in it no longer exifts? Publication is the only means to render this confeffed property useful to mankind, and profitable to the owner: now, to conftrue this neceffary act, as deftru&ive at once of the author's confeffed property against his exprefs will, feems harsh and unreasonable. With refpect to thofe things which are the fruits of human induftry, it cannot be doubted but that every one muft preferve his right to them till he makes an open renunciation. The act of publication is no renunciation. Selling the property in the work, and felling one of the copies, cannot mean the fame thing. Can it be conceived that in purchafing a literary compofition, the purchaser ever thought he bought the right to be the printer and feller of that specific work? The buyer might as truly claim the merit of the compofition by his purchase, as the right of multiplying copies.

The common law is founded on the law of nature and reafon. Where any wrong or damage is done to a man it gives him a remedy. The remedy by action upon the cafe is fuited to every wrong and grievance which the fubject may fuffer from a fpecial invafion of his right. The invasion of literary property is the proper fubject of fuch an action: for no property is more emphatically a man's own than his literary works, or more incapable of being mistaken.-That the author's fole right of publifhing his work is a known and acknowledged right, appears from the ancient legal ufe of the technical term, copy of a book; from various citations from hiftory, decrees, 6

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proclamations, ordinances, and statutes; from the concurrent fense of judges, to be collected from their expreffions in cafes at common law; and from the uniform conduct of the Court of Chancery. The statute of Q Anne treats the printing books without the confent of the author as an abuse it recognizes the common law-right by adopting the technical term, the copy of a book; it was obtained at the folicitation of booksellers, &c. not from any doubt of legal copy-right, but because the common law remedy was inadequate, only inflicting penalties on the offender. The provifo (before recited) is general, and feems to be the effect of extraordinary caution, that the rights of authors at common law might not be affected. The Court of Chancery has conftantly granted injunctions to protect this right on fuppofition of its being a legal one. No injunction was ever refused in Chancery, upon the common law-right, till the cafe of Tonfon v. Collins, which was dropped from a fuppofition of collufion.

Mr. Juftice YATES gave a different opinion. It is granted that a literary compofition is in the fole dominion of the author, while it is in manufcript: the manufcript is the object only of his own labour, and is capable of a fole right of poffeffion; but this is not the cafe with refpect to his ideas. No poffeffion can be taken, or any act of occupancy afferted on mere ideas. If an author has a property in his ideas, it must be from the time they occur to him; therefore if another man should afterwards have the fame ideas, he muft not prefume to publifh them; for they were pre occupied, and become private property.

Every man is entitled to the fruits of his own labour; but he must not expect that these fruits fhall be eternal; that he is to monopolize them to infinity. An author has certainly a right to a reward; but it doth not from thence follow that this reward is never to have an end. He has little caufe to complain of injustice, after he has enjoyed a monopoly for twenty-eight years, and the manufcript ftill remains his own property. Shall an author's claim continue without limitation, and for ever reftrain all the rest of mankind from their natural rights by an endless monopoly?

Whatever is the object of property must be visible; have bounds to define it, and marks to diftinguish it. But the property here claimed is all ideal; its existence is in the mind alone; fafe and invulnerable from its own immateriality. No right can exist without a fubftance to retain it, and to which it is confined: it would otherwise be a right without an existence. If it be faid that it is not the ideas, but the composition which is the principal object of property; this cannot continue the author's after publication. Nothing can be an object of property, which is not capable of a fole and exclufive enjoyment.

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