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property, publication, copy, law, opinion, nature and common

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COPYRIGHT, or, as it was formerly termed, Copy, has been defined by Lord Mansfield, "to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communicated by letters." By this "somewhat intellec tual" is to be understood something pro ceeding from the mind of the person by whom, or through whom, such a right is claimable. Yet, although mere republi cations of the compositions of others are no subject for copyright, it is not limited to such productions as contain new or original ideas. Translations both from ancient and modern languages, and notes and additions to existing works, are similarly protected. Further, a right of copy attaches to the authors of ideas expressed by other symbols as well as letters, to musical composers for example.

The origin of copyright must be sought in the general opinion of its justice and expediency. It has been supposed that a common-law right of copy existed in England previously to any statute on the subject. As a legal proposition, however, this cannot be supported by any proper and direct proof of a fair judicial de cision before the passing of the first sta tute relating to copyrigt, 8 Anne, c. 1 9 ; inasmuch as it never appears to have been directly controverted up to that time. But, in the absence of positive authority, it may be fairly inferred, from the old charters of the Stationers' Com pany, and much more from their regis ters, whence it appears that some thou sands of books, even as early as the times of Elizabeth, passed from one owner to another by descent, sale, and assign ment; from acts and ordinances of par liament which imply a recognition of it by the nature of their provisions respect ing printing ; and from decrees of the Star-chamber, which, though not binding precedents, are evidence of the opinion of many learned men as to the then state of the law. The non-existence of express decisions on the point is accounted for down to 1640 by the necessity of obtain ing a licence prior to the printing of any thing, so that authors had no occasion to apply to civil tribunals for protection, as none but themselves and those claiming under them were so licensed, and he who printed a book without this was subject to enormous penalties.

It has hardly been controverted in the various arguments upon this common law right of copy that literary composi tions in their original state, and the right of the publication of them, are the exclu sive property of the author. The argu ment has been that this property was put an end to by publication : and yet without publication it is useless to the owner, because it is without profit, and property without the power of use or disposal is not property. In that state it is lost to society as a means of improvement, as well as to the author as a means of gain. Publication is therefore the necessary act and the only means to render such a pro perty useful to the public and profitable to the owner. If, says Lord Mansfield, the copy which belonged to the author before publication does not belong to him after, where is the common law to be found which says there is such a property be fore? All the metaphysical subtleties from the nature of the thing may be equally objected to the property before. It is equally detached from the manu script or any physical existence whatso ever. There is in fact nothing in the act of publication to vary the nature of the right, so that what is necessary to make a work useful and profitable should be taken as destructive at once of an au thor's confessed original property against his expressed will. It has accordingly been the almost unanimous opinion of the high authorities who were called on to decide the point, that by the common law of England authors were entitled to copyright, and as there was nothing in statute or custom to determine it, or dis tinguish this from other species of pro perty, that such right was once perpetual. The arguments for the contrary opinion are collected in the judgment of Mr. Jus tice Yates in the case of Millar v. Taylor, 4 Burrow, p. 2303. It must be observed that this argument in favour of a corn mon-law copyright is founded ou the as• sumption that copyright is property inde pendently of written law ; a proposition which may be denied.

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