THE LAW OF INTELLECTUAL PROPERTY - THE COMMON LAW OF ENGLAND
CHAPTER 6 THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY
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.
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 encumbered, with
so many collateral questions, that, although they indicated very strongly, and perhaps quite clearly, that the chancellors had, in some instances at least, assumed Common Law copyright, still, as the decrees bad never
been [*198] rendered on a discussion of that point, they could not be held as decisive of the abstract question. The objections of Yates, on abstract grounds, so far as they were worthy of
notice, have been noticed, and replied to, in "Part First," of this Essay. The arguments of the three Justices, who favored the right, were erroneous and deficient to
such a degree, that it can hardly be said that they threw any light upon the points where the real difficulties lay. This is perhaps not to be wondered at. The question was essentially a new one, so far as any critical
investigation of it was concerned. Being a new one, an abstruse one, and liable to objections, which could not all be answered without much reflection, it is perhaps not surprising that, in the hurried and superficial
examination, which alone judges can give to new questions, their views should be, as they were, crude, inconsistent, superficial, and unsatisfactory; and that, instead of settling the questions involved, they did little or nothing
more than bring to light the real questions to be settled. Some of the most important of the errors and deficiencies of their arguments were the following.
1.While assertin that authors had a Common Law right of property in their works, they conceded and asserted that inventors had no Common Law right of property in their inventions;
that their rights depended wholly on the patents granted them by the king. So glaring an inconsistency as this was of course ivholly indefensible; and it was turned
against them, in the following terms, by Yates who opposed the right. He said: "The inventor of the air pump had certainly a property in the machine which he formed; but did he
thereby gain a property in the air, which is common to all? Or did he gain the sole property in the abstract principles
upon which he constructed his machine? And yet these may be called the inventor's ideas, and as much his sole property as the ideas of an author." 4 Burrows 2357. Also,
"Examples might be mentioned, of as great an exertion of natural faculties, and of as meritorious labor, in the mechanical [*199] inventions, as in the case of authors. We have a recent instance in Mr. Harrison's time-piece;
which is said to have cost him twenty years application. And might be not insist upon the same arguments, the same chain of reasoning, the same foundation of moral right, for property in his invention, as an author can for
his? "If the public should rival him in his invention, as soon as it comes out, might not he as well exclaim as an author, that they have robbed him of his production, and
have iniquitously reaped where they have not sown?' And yet we all know, whenever a machine is published, (be it ever so useful and ingenious,) the inventor has no right to it, but only by patent; which can only give him a
temporary privilege." Same, p. 2360. And again, "The whole claim that an author can really make, is on the public benevolence, by way of encouragement; but not
as an absolute coercive right. His case is exactly similar to that of an inventor of a new mechanical machine; it is the right of every purchaser of the instrument to make wbat use of it he pleases. It is, indeed, in
the power of the Crown to grant him a provision for a limited time; but if the inventor has no patent for it, every one may make it, and sell, it.
"Let us consider, a little, the case of mechanical inventions. "Both original inventions stand upon the same footing, in
point of property; whether the case be mechanical, or literary; whether it be an epic poem, or an orrery. The inventor of the one, as well as the author of the other, has a right to determine 'whether the world shall see it
or not; ' and if the inventor of the machine choose to make a property of it, by selling the invention to an instrument maker, the invention 'will procure him benefit. But when the invention is once made known to the world,
it is laid open; it is become a gift to the public; every purchaser has a right to make what use of it he pleases. If the inventor has no patent, any person whatever may copy the invention, and sell it. Yet every reason
that can be urged for the invention of an author, may be urged with equal strength and force, for the inventor of a machine. The very same arguments 'of having a right to his own productions,' and all others, will hold
equally, in both cases; and the immorality of pirating another man's invention is full as great, as that of purloining his ideas. And the purchaser of a book and of a mechanical invention has exactly the same mode of
acquisition; and therefore the jus fruendi [the right of enjoyment] ought to be exactly the same. "Mr. Harrison (whom I mentioned before) employed at least as much
time and labor and study upon his time-keeper, as Mr.[*200] Thompson could do in writing his Seasons; for, in planning that machine, all the faculties of the mind must be fully exerted. And as far as value is a mark of
property, Mr.Harrison's time
"So the other arguments will equally apply. The inventors of the mechanism may as plausibly insist, I that in publishing their invention, they gave nothing more to the public than merely
the use of their machines; 'that the inventor has the sole right of selling the machines he invented;' 'and that the purchaser has no right to multiply or sell any copies.' He may argue, 'that though he is not able to
bring back the principles to his own sole possession, yet the property of selling the machines justly belongs to the original inventor.' "Yet with all these
arguments, it is well known, no such property can exist, after the invention is published. "From hence it is plain, that the mere labor and study of the inventor, how
intense and ingenious soever it may be, will establish no property in the invention; will establish no right to exclude others from making the same instrument, when once the inventor shall have published it.
"On what ground then can an author
claim this right? How comes his right to be superior to that of the ingenious inventor of a new and useful mechanical instrument? Especially when we consider this island as the seat of commerce, and not much addicted to literature in ancient days- and therefore can hardly suppose that our laws give a higher right, or more permanent property, to the author of a book, than to the inventor of a new and useful machine."
Same, p. 2386-7. To these arguments the three Justices offered only these replies.
Willes said, "But the defendant's insist, 'that by the author's sale of printed books, the copy [right] necessarily becomes open; in like manner as by the inventor's
communicating a trade, manufacture, or mechanical instrument, the art becomes free to all who have learnt, from such communication, to exercise it.' "The resemblance holds
only in this- As by the communication of an invention in trade, manufacture or machines, men are taught the art or science, they have a right to use it; so all the knowledge, which can be acquired from the contents of a
book, is free for every man's use- if it teaches mathematics, physic, husbandry; if it teaches to write in verse or prose; if, by reading an epic poem, a man learns to make an epic poem of his own; he is at liberty. "But printing is a trade or manufacture. The types and press are the mechanical instruments; the literary composition is as [*201] the material, which is always property. The
book conveys knowledge, instruction, or entertainment; but multiplying copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all
the book teaches." 4 Burrows 2331. This argument is utterly absurd, inasmuch as it assumes- what is not true- that if an inventor employ a mechanic, to
construct a machine, in accordance with his invention, and thereby learn him how to construct similar machines, the mecbanic thereby acquires a right to construct such machines in future, without the consent of the inventor ! It is
true such an idea once prevailed in England, and was acted upon by courts. But there would be just as much sense in saying that, if an author employ a printer to print his book, and thereby learn him how to print similar
books, the printer thereby acquires a right to print imilar books, (that is, the same literary composition,) without the author's consent. The argument is just as strong in favor of
the right of the printer to print the book, as it is in favor of the right the mechanic to construct the machine. Or, rather, the argument is just as weak, instead of strong, in one case as in the other.
Aston said, " That the comparison made betwixt a literary work and a mechanical production.; and that the right to publish the one, is as free and fair, as to imitate the other; carries no
conviction of the truth of that position, to my judgment. They appear to me very different in their nature. And the different consists in this, that the property of the maker of a mechanical engine is confined to that
individual thing which he has made; that the machine made in imitation or resemblance of it, is a different world, in substance, materials, labor, and expense, in which the maker of the original machine cannot claim any
property for it is not his, but only a resemblance of his; whereas the reprinted book is the very same substance; because its doctrine and sentiments and its essential and substantial part are. The printing of it is a more
mechanical act, and the method only of publishing and promulgating the contents of the book.
"The composition therefore is the substance; the paper, ink, type, only the incidents or vehicle. "The value proves it. And though the defendant may
say 'those materials are mine,' yet they cannot give him a right to [*202] the substance, [the literary composition,] and to the multiplying of the copies of it; which; (on whose paper or parchment soever it is impressed) must ever
be invariably the same. Nay, his mixing, if I may so call it, his such like materials with the author's property, does not (as in common cases) render the author's property less distinguisliable than it was before; for
the identical work or composition will still appear, beyond a possibility of mistake. "The imitated machine, therefore, is a new and different work; the literary composition, printed on another
man's paper, is still the same. "This is so evident to my own comprehension, that the utmost labor I can use in expressions, cannot strengthen it in my own idea." 4 Burrows 2348. This argument of Aston is equally absurd with that of Willes; because two books, of the same kind, are just as rauch two different things, (and not "the same," as Aston
asserts,) as are two machines, of the same kind. The ideas also, described in a book, are just as much distinct entities from the book itself, as the idea, after which a machine is constructed, is a distinct entity from the
machine itself. The ideas, described in a book, no more compose the "substance " of the book, and are no more "mixed " with the "materials" of the book, as Aston asserts,
than the idea, after which a machine is constructed, composes the "substance" of the machine, or is "mixed" with the "materials" of the machine. But this point has been
sufficiently explained in a previous chapter. The objects of a book and a machine are somewhat different. The object of a book is simply to communicate ideas. A
machine communicates ideas equally as well as a book (to those who understand the language of mechanics); but it also has another object, which a book has not, viz.: the performance of labor. This is the most noticeable
difference between them; a difference of no legal importance whatever, unless it be to prove that the mechanical idea is the more valuable of the two, and therefore the more worthy of protection as property. [*203]
Lord Mansfield made no argument of his own, as to the resemblance, or difference, betnveen mechanical inventions and literary compositions; but he must be considered to have endorsed the arguments of
Willes and Aston, on this point, as well as on all others; for he said he had read them (throughout), and ":fully adopted them." p. 2395- 6. There can certainly,
I think, be no necessity for any additional remarks on this subject. The identity of principle, in the two cases, is so perfect, and so palpable, that any theory, that excludes an inventor's ideas from the category of
property, must equally exclude those of authors. And any theory, that includes the ideas of authors in the cateory of property, must equally include those of inventors. Aston himself, five years afterwards, in the case,
of Donaldson vs.
Becket, had changed his mind so far as to say, that "He thouht it would be more liberal to conclude, that previous to the monopoly statute, there existed a common law right, equally to an inventor of a machine, and an author of a work."
We, of this day, may well feel amazed that three out of four, of the judges, occupying, so high a seat as that of the King's Bench, could fall into an error so absurd in itself, and
so evidently fatal to the cause they were advocating. The fact, that they did so, is one of the numberless instances, that show how the minds of judicial tribunals are fettered by the authority, or their consciences swerved by the
influence, of the government, whose servants they are; and consequently how little reliance is to be placed upon the correctness of judicial decisions. Many persons, no doubt, will
think that in this case, the consciences of the judges were served, rather than that their judgments were fettered that inasmuch as the granting of patents had, for hundreds of years, been held to be a branch of the royal
prerogative; and in some reigns, if not in all, a somewhat lucrative branch; the judges had not the courage to strike such a [*204] palpable blow at the authority, dignity, and revenues of the king, as they would do by declaring
that inventors could bold their property independently of his gracious pleasure and condescension." Other persons may perhaps imacine, that an unwillingness, on the part of the
judges, to impeach their own infallibility, and that of their court, by acknowleding the error of all their former decisions, in regard to inventions, was at the bottom of the absurd distinction, which they attempted to set up,
between the rights of authors and inventors, to a property in their respective ideas. Still other persons, however, of a more charitable disposition, especially if they are familiar
with the unreasoning stupidity, with which courts are habituated to acquiesce in every thing, however absurd in itself, that has the odor of authority or precedent, will perhaps give these judges credit for honestly imagining, that
there must be some difference between the rights of authors and inventors notwithstanding they themselves (the judges) were unable to make that difference appear. But whatever may have
been the cause of so patent an inconsistency on their part, the inconsistency itself was sufficient to deprive their decision of all weight as an authority. 2. The arguments of
the three Justices, in favor of the right, were imperfect for another reason, to wit: that they failed to answer the following argument of Yates against the right, viz.: That it was a supposable case that two men might produce the
same ideas, independently of each other and that, in such a case, it would be unjust to give, the one who first produced them, an exclusive property them.
The three judoes made no reply to this argument. I have attempted to answer this objection, in a former chapter, 3. A third error, or deficiency, in the arguments of the three Justices, in favor of the Common Law copyright, arose in this way. [*205]
It is not now, and I suppose never has been, the custom in England, to make any entry- such as "copyright reserved," or other equivalent expression- on the title page, or other
part of a book itself, to give notice to purchasers that the copyright is retained by the author. The act of parliament required no such entry to be made in the books
themselves. It only protected the copyright of those books, whose title should be entered in the register book of the Company of Stationers. But as this was a merely arbitrar provision, the entry or
non-entry of the title there, could have nothing to do with the question of copyright at Common law. Hence the important question arose, how is a purchaser of a book to
know how much he purchases? That is, How is he, to know whether, in buying, a book, he also buys the right to reprint it, or only the right to read it? On what legal grounds can it be said, that there is any
implied contract between the author and the purchaser, by which the former reserves the exclusive right to multiply copies? These were important questions, which the three
Justices, who favored the common law copyright, were bound to answer. But they did not answer them satisfactorily or fully. I have attempted to answer them in a former chapter.
4. A fourth error, in the argument, of the three Justices, who favored the right, was this. Willes said, (and it was apparently concurred in by
both Aston and Mansfield,) that "All the knowledge, which can be acquired from the contents of a book, is free for every man's use. The book conveys knowledge, instruction, or entertainment; but multiplying
copies in print is quite a distinct thing from all the book communicates. And there is no incongruity, to reserve that right, and yet convey the free use of all the book teaches." p. 2331.
This is the error throughout. It is, of course, generally true, that "all the knowledge that can be acquired from the contents of a [*206] book, is free for every man's use,"
in every way except that of reprinting descriptions of it; but it is, by no means, a necessary consequence of the publication of a book, that all the knowledge it conveys, is, even thus far, free for the use of
every body, or even for the use of the purchaser of the book. Suppose a book describe a steam engine so fully, that a mechanics from the knowledge thus conveyed, would be able to construct and operate a steam engine; does it
follow, because he has obtained that knowledge from a book, (even though the book were written and sold by the inventor of the engine,) that it is therefore free for his use? Not at all. The book may have been, and most
likely was, written by the inventor, simply for the purpose of conveying, to the reader, such a knowledge, of the steam engine, as would induce him to purchase the right to construct, or use one.
If special notice be given, in the book, that the copyright is reserved, that notice may- and, in the absence of any ground of presumption to the contrary, perhaps would- imply that the
author reserves nothing else than the right of multiplying copies; ; and that the knowledge conveyed by the book, is therefore free for all other uses. But, in England, where no notice is given, in the book,
that the copyright is reserved, no implication can be drawn, from the simple fact of publication alone, that the knowledge conveyed is desiged to be free. The law must infer, from the nature of the knowledge
conveyed, and from other circumstances, whether the author designs the knowledge to be free, or not. In a large proportion of the books printed, the knowlege is of seen trivial market
value, that, in any other form than in a book, it would bring nothing worth bargaining for. In such cases, it would be reasonable for the law to infer that the knowledge was, designed to be free for all uses, except that
of being reprinted. But wherever the knowledge had an important market value, independently of the book, it would be reasonable to infer, that object of the book was, to advertise the knowledge, with a view to
its sale for use, rather than that the price of the book, was the price also for the free use of knowledge. [*207]
This matter, however, has perhaps been sufficiently discussed in a former chapter.
Willes says, "There is no incongruity, to reserve that right, [the right of multiplying copies,] and yet convey the free
[unlimited] use of all the book teaches." Yes, there is a plain incongruity; because the "multiplying copies in print," is itself one of the "uses," which is made of what the book
teaches. We cannot multiply copies of the book, without using the ideas it communicates; for these ideas are an indispensable guide to the work of setting the type for the new copies. The use of the ideas,
for this purpose, is generally the only "use," from which the author derives his pecuniary profit. And it is because this "use " of them is lucrative, that he reserves it
exclusively to himself. To say, therefore, that an author reserves to himself the copyright- that is, the exclusive right of using the ideas to multiply copies of the book- and yet that he conveys to others the free
[unlimited] use of the same ideas, is a contradiction; because the unlimited use of the ideas, would include the use of them for multiplying, copies of the book. He may, therefore, reserve the right of multiplying copies, and yet convey a right to use,
in every other way, than that of multiplying copies, "all that the book teaches; " but be cannot reserve the copyright, "and yet convey the free [unlimited] use of all the book teaches." In reprinting the book, the ideas, which the book teaches, or communicates, are necessarily used as a guide to the work of printing
and the sole right of using them, for that purpose, is the copyright, or right of property, which the author has reserved to himself. But WiIles says that "multiplying
copies in print is quite a distinct thing from all the book communicates." He obviously means, by this remark, that the right of "multiplying copies [of the book] in
print, is quite a distinct thing from "the right of property in the ideas," that the book communicates [*208] But in this, lie is in a great error; for it is the right o
f property alone, in the ideas, "that the book communicates," that gives him the exclusive right to use them for the purpose of multiplying copies [of the book] in print." Before the book was printed, all
the ideas it describes, (or so many of them as were original with him,) were the sole property of the writer. By printing the book, and selling it, with a reservation of copyright, he conveyed a partial
property in the ideas, to his readers. That is, he conveyed to them a right of possession, in common with himself, of all the ideas "the book communicated;" and (in most cases) he abandons (as being worthless to
himself) his exclusive right to the "use" of them, for every purpose, except that of reprinting descriptions of them. The sole right of using them, for the purpose of reprinting descriptions of them, is a
part of his original exclusive right of property, or dominion, in the ideas themselves. It is the part, of that original exclusive right of property, or dominion, which he has reserved to himself. The rest
of his original right of property in them, be has (in most cases) conveyed, or abandoned, to be enjoyed by others, in common with himself. The copyright, therefore, is a remnant, remainder, or reserved portion,
of his original exclusive right of property in the ideas" that the book communicates," or describes; and it is nothing else. This attempt, on the part of the
three Justices, (or certainly on the part of Willes,) to make it appear, that the right of multiplying copies of a book, was "quite a distinct thing" from all right of Property in, or dominion over, the ideas,
"that the book communicates," confused and destroyed their whole argument; for it was an attempt to prove a legal impossibility, viz.: the existence of a legal right, which attached to no legal entity. The idea, that an author could retain an exclusive right of multiplying copies of a book, after be had parted with every vestige of exclusive property in "all that
the book communicated," is a perfect absurdity. The copyright, or the right of multiplying copies, therefore, [*209] although it is not necessarily a sole
and absolute right of property, in the ideas themselves, for all uses and purposes whatsoever, is, nevertheless, a sole and absolute right of property, in the ideas themselves, for a particular use and a particular
purpose, to wit : that of printing of books describing them. It is not, therefore, as these Justices assumed, a mere shadow, or phantom of a right, existing independently of all exclusive right of property
whatever, in the ideas themselves. It is a substantial property right, in the ideas themselves, which the book describes, and which are necessarily used in reprinting the book.
If, as these Justices held, the exclusive right of multiplying copies of the book, were a right existing independently of all exclusive right of property, in the ideas described in the book,
these questions would arise, viz.: Where did this anomalous right come from? How did it originate? What legal entity does it attach to? And how came it in the possession of the author of the book, in preference to any body else?
And these questions, I apprehend, would be wholly unanswerable. 5. The argument of the three Justices or rather of two of the Justices, Willes and Mansfield- in favor of the right,
were imperfect for still another reason, viz.: that their definitions of Common Law were inaccurate, and indefinite. Thus Justice Willes said, that
"private justice, moral fitness, and public convenience, when applied to a new subject, make common law without a precedent; much more, when received and approved by usage." p. 2312.
Lord Mansfield said, I allow them sufficient to show 'it is agreeable to the principle of right and wrong, the fitness of things, convenience, and policy, and therefore to the common law, to protect
the copy [right] before the publication.'" If they had said simply that natural justice was common law (in all cases whatsoever, new and old, except perhaps those very few,
which have before been alluded to, where some positive institution to the contrary has been in practical efficient operation from time immemorial)- their definition would have been correct. It would also have been definite,
precise, and certain, inasmuch [*210] as natural justice is a matter of science. But when they add that "moral fitness, and public convenience," and "the fitness of things, convenience, and
policy," must conspire with
"private justice," and "the principles of right and wrong," in order to make Common Law, they introduce confusion and uncertainty into their definition; inasmuch as "moral fitness and public convenience," "the fitness of things, convenience, and policy," if considered as anything separate from natural justice, are terms that convey no precise meaning, and open the door to an endless diversity of opinion. No stronger proof of this last assertion need be offered than the great diversity of opinion that exists as to the policy, expediency, and moral fitness, of the principle of property in ideas.
These terms are also improper and unnecessary ones to be introduced into a legal definition, for the reason that, in matters of government and law, natural justice itself has the very
highest degree of "moral fitness;" it subserves, in the very highest degree, the "public convenience;" and its principles are the soundest of all principles of "public policy." The simple
definition, natural justice, is therefore complete and sufficient of itself; and needs no additions or qualifications. Aston's definition of Common Law was better, for he held that
Right reason and natural principles [were] the only grounds of Common Law, originally applicable to this question;" that "the principles of reason, justice, and truth were the principles of the Common Law; that " the
Common Law, now so called, is founded on the law of nature and reason;" that it is "equally comprehensive of, and co-extensive with, these principles and grounds from which it is derived;" that "the Common Law,
so founded and named, is universally comprehensive, commanding what is honest, and prohibiting the contrary; " that "its precepts are, in respect to mankind, to live honestly, to hurt no one, and to give to every
one his own." p. 2337- 8, 2343- 4. Justice Yates, who opposed the copyright, held nearly the same views of the Common Law, with Aston. He said: "It was contended
'that the claim of authors to a perpetual copyright in their works, is maintainable upon the general principles [*211] of property.' And this, I apprehend, was a nccessarv ground for the plaintiff to maintain; for, however
peculiar the laws of this and every other country may be, with respect to territorial property, I will take upon me to say, that the law of England, with respect to all personal property,
had its grand foundation in natural law." p. 2355.