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 III. Objection Third. A third objection, that has been urged against a right of property in ideas, any longer than they remain in the exclusive possession of the originator, is, that ideas are of the nature of wild animals, which, being once let loose, fly beyond the control of man; thus interposing an obstacle, in a law of their own nature, to the maintenance of any dominion over them, after they have once been liberated. This objection is utterly fanciful and unfounded. The resemblance between a flying thought, and a flying bird, may be sufficiently striking for purposes of poetry and metaphor, but has none of the elements of a legal analogy. A thought never flies. It goes only as it is carried by man. It never escapes beyond the ...

SECTION X. Objection Tenth. Another theory, advocated by some persons, is, that abstractly, and on principles of natural justice, men have the same right of property in their ideas, that they have in any other products of their labor; but that this property requires peculiar and extra ordinary protection; and that the present laws on the subject are in the nature of a compromise between the government and the inventor; the government giving extraordinary protection for a time, and the inventor, in consideration of that protection, giving up his property at the end of that time. There is plainly no foundation for this theory. In the first place, the government, instead of giving extraordinary protection, does not give even ordinary protectio...

CHAPTER IV. THE SALE OF IDEAS. There remain to be considered some important questions, in regard to the sale of ideas, in connection with books, machines, statues, pictures, &c. We will first speak of the sale of them in connection with books; and of the other cases afterwards. When an author sells a copy of his book, does that sale carry with it the right to reprint the book? Or does he reserve that right exclusively to himself? If he reserve that right exclusively to himself, how does that reservation legally appear, when no express stipulation of the kind is shown? If the purchaser of a book do not buy with it the right to reprint it, what right of property or use does he buy, in the ideas which the book communicates? And how are leg...

SECTION IX. Objection Ninth. It is generally, if not universally, conceded that an inventor has a good moral claim for compensation for his invention; that he ought to be suitably, and even liberally, paid for his labor. At the same time, many, who make this concession, will say that to allow him an exclusive and perpetual property in his invention, would be transcending all reason in the way of compensation. This view of the case, it will be seen, denies to the inventor all exclusive right of property in his invention. It asserts that the invention really belongs to the public, and not to himself. And it only advocates the morality and equity of allowing him such compensation for his time and labor as is reasonable. And it maintains that s...

SECTION V. What Things are Subjects of Property? Every conceivable thing, whether intellectual, moral, or material, of which the mind can take cognizance, and which can be possessed, held, used, controlled, and enjoyed, by one person, and not, at the same instant of time, by another person, is rightfully a subject of property. All the wealth, that has before been described—that is, all the things, intellectual, moral, emotional, or material, that can contribute to, or constitute, the happiness or well-being of man; and that can be possessed by one man, and not at the same time by another, is rightfully a subject of property—that is, of individual ownership, control, dominion, use, and enjoyment. The air, that a man inhales, is h...