The Law of Intellectual Property : or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas

Part 2, Chapter 6, Section 4
SECTION IV. Review of the Case of Donaldson and another, vs. Becket and another. This case came before the House of Lords, in 1774, on an appeal from an injunction against publishing a book, whose statutory term of copyright had expired. The Lords directed the judges to give their opinions to the House on the following questions, viz.: 1. "Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published and sold the same without his consent?" 2. "If the author had such a right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterwards reprint and sell, for his own benefit, such book or literary composition, against the will of the author?" 3. "If such action wo...

Part 2, Chapter 6, Section 3
SECTION III. Review of the Case of Millar vs. Taylor. The question of an author's copyright at Common Law, first came to a decision by the court of King's Bench in 1769, in the case of Millar vs. Taylor. Three of the Justices, Willes, Aston, and Lord Mansfield, decided in favor of the right; one, Justice Yates, opposed it. Each of the judges gave a written argument on the question. The want of unanimity in the court, and the inconsistency and deficiency of the arguments of the three Justices in favor of the right, have prevented their decision from being received as a settlement of the question; and there has probably been nearly or quite as much doubt on the point, among lawyers, since that decision as before. The Justices argued the question, both on precedent, and as an abstract one of natural, or common law. The precedents were from the court of chancery; and the most of them were en...

Part 2, Chapter 6, Section 2
SECTION II. Why the Common Law Right of Property in Ideas has not been more fully Acknowledged. It will, I think, be hereafter rationally shown, that the nonestablishment, in England, of the right of property in ideas, is to be attributed solely to the overthrow of the ancient, constitutional, Common Law government, and to the establishment of arbitrary power in its stead. But to understand how such a cause has been productive of such an effect, we must attend somewhat to events and dates. The Great Charter—which was at once the embodiment and guarantee of the Common Law form of government, and which, within about two hundred years from the grant of it in 1215, was confirmed more than thirty times, was confirmed for the last time in 1415. It had been much encroached upon before; but from this time the government degenerated rapidly into absolutism. And such has now been its character for some four hundred...

Part 2, Chapter 6, Section 1
PART II THE COMMON LAW OF ENGLAND. (VOL. I) CHAPTER VI. THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY. SECTION I. What is the Common Law of England? In order to determine whether the Common Law of England sustains the right of authors and inventors to an absolute and perpetual property in their ideas, it is only necessary to determine what the Common Law of England really is. To many unprofessional readers, the term Common Law will convey no very certain or precise idea; and as I am anxious that they should fully understand this discussion, at every step, I shall define the term more at length than would otherwise be necessary. The Common Law of England, then, with a few exceptions, which are wholly immaterial to the question of intellectual property, consists of, and is identical with, the simple princip...

Part 1, Chapter 5
CHAPTER V. THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY. As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas, is as clear as is that of allowing him a perpetual property in material things. What is the argument of policy against a perpetual property in ideas? Principally this—that the world will get ideas cheaper, if they get them for nothing, than if they pay for them. This argument would be just as good in favor of abolishing the right of property in the material products of men's labor, as it is for abolishing it in intellectual ones. Take wheat, for example. If the right of property in wheat were abolished, the world would get the stock of wheat, that is now on hand, for nothing. But the next crop of wheat would be a small one; and people would then learn, that in the long run, the cheapest mode, and the only mode, of procuring a consta...

SECTION II. Descent of Intellectual Property. There is the same reason, and as strong reason, why a man's intellectual property should descend to his relatives, as there is why his material property should do so. What is the ground, on which the law allows any man's property to go, at his death, to his wife, children, or other relatives? This, and nothing else, viz.: the law presumes that he acquired it for them, and intended it for their benefit. In short, it presumes that it was his will that it should go to them, rather than to mankind at large. And this is a reasonable presumption, (in the absence of express evidence to the contrary,) because, during life, men usually labor for, and devote their property to the support and welfare of, t...

Part I: The Law of Intellectual Property. Chapter I.: The Law of Nature In Regard to Intellectual Property. Section I.: The Right of Property In Ideas to Be Proved By Analogy. Section II.: What Is Wealth? Section III.: What Is Property? Section IV.: What Is the Right of Property? Section V.: What Things Are Subjects of Property? Section VI.: How Is the Right of Property Acquired. Section VII.: What Is the Foundation of the Right of Property? Section VIII.: How Is the Right of Property Transferred? Section IX.: Conclusions From the Preceding Principles. Chapter II.: Objections Answered. Section I.: Objection First. Section II.: Objection Second. Section III.: Objection Third. Section IV.: Objection Fourth.

SECTION VIII. Objection Eighth. It may be urged that, however just may be the principle of the right of property in ideas, still the difficulty of determining who is the true author of an invention, or idea, after that invention or idea has become extensively known to mankind, interposes a practical obstacle to the maintenance of any individual right of property in any thing so subtle, intangible, and widely diffused, as such an invention, or idea. This was unquestionably a very weighty and serious objection, in ruder times, when letters were unknown to the mass of the people, and when a thought was carried from mind to mind, unaccompanied by any reliable proof of the first originator. The facilities and inducements thus afforded to fraudul...

SECTION XI. Objection Eleventh. It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it. This objection lays wholly out of consideration the fact, that the idea has been produced by one man's labor, and not by the labor of all men; as if that were a fact of no legal consequence...

SECTION II. What is Wealth? Wealth is any thing, that is, or can be made, valuable to man, or available for his use. The term wealth properly includes every conceivable object, idea, and sensation, that can either contribute to, or constitute, the physical, intellectual, moral, or emotional well-being of man. Light, air, water, earth, vegetation, minerals, animals, every material thing, living or dead, animate or inanimate, that can aid, in any way, the comfort, happiness, or welfare of man, are wealth. Things intangible and imperceptible by our physical organs, and perceptible only by the intellect, or felt only by the affections, are wealth. Thus liberty is wealth; opportunity is wealth; motion or labor is wealth; rest is wealth; reputati...