Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/387

Rh COPYRIGHT 357 should be recognized in law, have from the beginning been the subject of bitter dispute. By some it has been described as a monopoly, by others as a kind of property. Each of these words covers certain assumptions from which the most opposite conclusions have been drawn. As a monopoly it is argued that copyright should be looked upon as a doubtful exception to the general law regulating trade, -and should at all events be strictly limited in point of duration. As property, on the other hand, it is claimed that it should be perpetual. There would appear to be no harm in describing copyright either as property or monopoly, if care be taken that the words are not used to cover suppressed arguments as to its proper extent and duration. Historically, and in legal definition, there would appear to be no doubt that copyright, as regulated by statute, is a monopoly. The Parliamentary protection of works of art for the period of fourteen years by the 8 Anne c. 19 and later statutes appears, as Blackstone points out, to have been suggested by the exception in the Statute of Monopolies, 21 James I. c. 3. The object of that statute was to suppress the royal grants of exclusive right to trade in certain articles, and to reassert in relation to all such monopolies the common law of the land. Certain excep tions were made on grounds of public policy, and among others it was allowed that a royal patent of privilege might be granted for fourteen years &quot; to any inventor of a new manufacture for the sole working or making of the same.&quot; Copyright, like patent right, would be covered by the legal definition of a monopoly. It is a mere right to prevent other people from manufacturing certain articles. But objections to monopolies in general do not apply to this particular class of cases, in which the author of a new work in literature or art has the right of preventing others from manufacturing copies thereof and selling them to the public. The rights of persons licensed to sell spirits, to hold theatrical exhibitions, &c., are also of the nature of monopolies, and may be defended on special grounds of public policy. The monopoly of authors and inventors rests on the general sentiment underlying all civilized law, that a man should be protected in the enjoyment of the fruits of his own labour. The first Copyright Act in England is 8 Anne c. 19. The preamble states that printers, booksellers, and other persons were frequently in the habit of printing, reprinting, and publishing &quot; books and other writings without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.&quot; &quot; For preventing, there fore, such practices for the future, and for the encourage ment of learned men to compose and write useful books, it is enacted that the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book or books for the term of one-and-twenty years, and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee, or assignees, shall have the sole liberty of printing and ^reprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer.&quot; The penalty for offences against the Act was declared to be the forfeiture of the illicit copies to the true proprietor, and the fine of one penny per sheet, half to the Crown, and half to any person suing for the same. &quot; After the expiration of the said term of fourteen years the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, or their representatives, for another term of fourteen years.&quot; The last provision points to a particular view of the nature of copyright, to which we shall call attention further on. To secure the benefit of the Act registration at Stationers Hall was necessary. In section 4 is contained the provision that if any person thought the price of a book &quot;too high and unreasonable,&quot; he might complain to the archbishop of Canterbury, the lord chancellor, the bishop of London, the chiefs of the three courts at West minster, and the vice-chancellors of the two universities in England, and to the lord president, lord justice general, lord chief barcn of the Exchequer, and the rector of the college of Edinburgh in Scotland, who may fix a reasonable price. Nine copies of each book were to be provided for the royal library, the libraries of the universities of Oxford and Cambridge, the four Scotch universities, Sion College, and the faculty of advocates at Edinburgh. The copyright of the universities was not to be prejudiced by the Act. It was believed for a long time that this statute had not interfered with the rights of authors at common law. Ownership of literary property at common law appears to have been recognized in some earlier statutes. The Licensing^ Act, 13 and 14 Car. II. c. 33, prohibited the printing of any work without the consent of the owner on pain of forfeiture, &c. This Act expired in 167 9, and attempts to renew it were unsuccessful. The records of the Stationers Company show that the purchase and sale of copyrights had become an established usage, and the loso of the protection, incidentally afforded by the Licensing Act, was felt as a serious grievance, which ultimately led to the statute of Anne. That statute, as the judges in Millar v. Taylor pointed out, speaks of the ownership of literary property as a known thing. One of the petitions in support of the proposed legislation in 1709 states that by common law a bookseller can recover no more costs than he can prove damages. &quot; Besides,&quot; it continues, &quot; the defendant is always a pauper, and so the plaintiff must lose his costs of suit. No man of substance has been known to offend in this particular ; nor will any ever appear in it.&quot; Therefore the confiscation of counterfeit properties is prayed for. And many cases are recorded in which the courts protected copyrights not falling within the periods laid down by the Act. Thus in 1735 the master of the Rolls restrained the printing of an edition of the Whole Duty of Man, published in 1657. In 1739 an injunction was granted by Lord Hard vicke against the publication of Paradise Lost, at the instance of persons claiming under an assignment from Milton in 1G67. The question, however, was raised in the case of Millar v. Taylor (4 Burrow, 2303) in 17G9,in which the plaintiff, who had purchased the copyright of Thomson s Seasons in 1729, claimed damages for an unlicensed publication thereof by the defendant in 1763. The jury found that before the statute it was usual to purchase from authors the perpetual copyright of their works. Three judges, among whom was Lord Mansfield, decided in favour of the common law right; one was of the contrary opinion. The majority thought that the Act of Anne was not intended to destroy copyright at common law, but merely to protect it more efficiently during the limited periods. Millar v. Taylor, however, was speedily overruled by the case of Donaldson v. Beckett In. the House of Lords in 1774. The judges were called upon to state their opinions. A majority (seven to four) were of opinion that the author and his assigns had at common law the sole right of publication in perpetuity. A majority (six to five) were of opinion that this common law right had been taken away by the statute of Anne, and a term of years substituted for the perpetuity. Lord Mansfield did not deliver an opinion, as it was unusual for a peer to support his own judgment on an appeal to the Lords. Lord Camden argued against tho existence of a common law right, and on hie motion, seconded by tho lord chancellor, the decree of the court below was reversed. The