Page:Harvard Law Review Volume 12.djvu/575

555 PATENT RIGHTS AND COPY RIGHTS. 555 Are there no other means by which an author, musical com- poser, artist, or inventor may prevent the use and enjoyment by others of his creation or invention without his consent? Yes,' the State may interfere in his favor by issuing its prohibition against the use of his creation or invention by others without his consent, and by arming him with the power to enforce such pro- hibition ; and this is what the State does when it grants letters- patent to an inventor, or enacts a law for the protection of authors, musical composers, or artists. The right thus secured to the in- ventor by letters-patent is a monopoly in the true sense; for it makes unlawful, except to one or a few, what, but for such letters- patent, would be lawful to all. The right thus secured by law to an author, a musical composer, or an artist may also be termed a monopoly in the strict legal sense; for such laws always assume that authors, musical -composers, and artists have, after publication, no property in their creations, regarded as incorporeal things, and they confer a right which is wholly independent of any such property. The right thus conferred by letters-patent, or by law, may prop- erly enough be termed incorporeal property ; but it is incorporeal property of a peculiar kind, being wholly negative in its nature, and it is therefore radically different from an author's, a musical composer's or an artist's property in his literary, musical, or artis- tic creations, regarded as incorporeal things. It follows from what has been said that if letters-patent be granted to two or more persons as joint inventors, the only right conferred upon them is that of preventing the use and enjoyment of the invention by others ; no right is conferred upon them as against each other, and therefore each of them may use and enjoy the invention, without accountability to the other, as if the letters- patent had been issued to him alone.^ And the same thing must be true of two or more joint creators of any literary, musical, or artistic production, so far as regards the right conferred upon them by statute ; but it is otherwise as to any property which authors, musical composers, or artists have in their creations, for such property, being positive and affirmative in its nature, is subject to the ordinary rules of property owned by several persons jointly or in common. There is another important distinction between the affirmative 1 Mathers v. Green, 34 Beav. 170; L. R., i Ch. 29, s. c. 72