Part 48 (1/2)

At the time of the Commonwealth publication became free and was free, but there was still no notion of any exclusive right to publish a particular literary or musical composition inhering in the author of that composition; and that right never did begin and never was heard of in England until the reign of Anne, when Parliament pa.s.sed a statute establis.h.i.+ng such a right for a limited time.

In 1769 a copyright which had been issued under the statute of Anne had expired, and the owner of that copyright determined to test the question in the English courts as to whether or not there was a perpetual right of copyright under the common law of England, regardless of the statute of Anne, and the owners of that copyright brought suit for its infringement after the term established by the statute of Anne had expired; and the question whether such a common-law right existed or not came before the court of king's bench when Lord Mansfield was chief justice of that court. The court of king's bench decided, as an academic proposition, that there had been anciently an exclusive right to an intellectual production under the laws of England. That was, however, a purely speculative statement.

They could not point to the time when anybody a.s.serted any such right or to an instance when anybody had acquiesced in it. They simply took the ground, as an academic proposition, that anciently there had been such a right. They also decided, however, that whether that right existed or not, it had been ended by the statute of Anne, and that the statute of Anne circ.u.mscribed the right to the limited time provided for by that statute.

From that decision or the court of king's bench the plaintiff appealed to the House of Lords, sitting in its judicial capacity. We sometimes have the notion that when the House of Lords sits in its judicial capacity all the peers of the Realm--500 in number--a.s.semble together and hear the arguments and render a final decision, but it is not so.

Only the law lords partic.i.p.ate; and if an ordinary n.o.bleman should venture to sit when the House of Lords was sitting in its judicial capacity he would be hooted out of the room, and his presence would be made to appear to him to be extremely unwelcome. The number of law lords that sat at the time of the hearing of that argument was 11, and 6 of them rendered the opinion that the statute of Anne was the only foundation known to the law of England for exclusive right to an intellectual production, and that therefore the plaintiff was not ent.i.tled to recover.

That was the situation of the laws of England at the time of the foundation of our Union, at the time of the Declaration of Independence, and at the time of the framing of our Const.i.tution. In 1787 our Const.i.tution was framed, and the fathers inserted in that Const.i.tution this provision:

The Congress shall have power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

That is the only foundation that exists for the patent laws of the United States, and it is the only foundation that exists for the copyright laws of the United States. It is true that a copyright when it is issued in accordance with the statute made in pursuance of that Const.i.tution is property, but it is not property in the historic sense of property. It entirely lacks the notion of continuity. It entirely lacks the notion of permanency. It is a species of property created, and not arising out of the circ.u.mstances of civilization and human life, as property in general has always done, long preceding governments. It is a species of property created by the law-making power, and a species of property created by the law-making power in a matter not inherently subject to property right.

In creating that particular property the const.i.tutional convention was influenced by this consideration: We will not grant a permanent property right in any intellectual production, because in our judgment that would be inconsistent with the progress of civilization as a whole, but we can consistently, with the progress of civilization as a whole, grant a limited property right in an intellectual production.

Therefore they did provide in the Const.i.tution that though Congress might give to authors an exclusive right, the right must be limited in point of duration, and therefore Congress has not the slightest power to grant a permanent right in any intellectual production.

Victor Herbert may hereafter, as I hope he may, rival some of the great composers of the past and produce music far better than the splendid music that he has thus far produced, but if he does it will be impossible for Congress to reward him and his heirs with a permanent absolute property right in any such intellectual production.

The best we can do, Mr. Herbert, is to give you a limited right to your intellectual production. That limited right is limited not only in respect of duration, but it is limited in respect of quality, in respect of formal expression, and it is limited thus: There shall be, according to the const.i.tutional provision, an exclusive right for a limited time and for a limited form of expression, and that limited form of expression is defined by the word ”writings.”

Mr. Chairman and gentlemen of the committee, I have spent my laborious life as a lawyer, a scholar, an inventor, an author, and a lecturer. I have delivered hundreds of addresses that never were reduced to writing. I have delivered but few that were. In so far as I delivered those lectures that were never reduced to writing, I am not ent.i.tled, either by law or by ethical principles, to any exclusive right. I am ent.i.tled to an exclusive right to my intellectual productions only when I reduce them to writing and file them in the office of the Librarian of Congress, where they will remain a permanent monument, and can be handed down to future times and can be read and availed of by my contemporaries.

The Const.i.tutional Convention wisely provided that if the American people are to grant a monopoly in an intellectual production the man who makes that intellectual production shall give it to the American people; and he gives it to the American people by first furnis.h.i.+ng them the fullest information of its character, in the case of a patent, or in the case of a copyright he gives it to the American people by consenting to the terms upon which it was issued, namely, that it shall be free after the expiration of the limited time for which it was granted. Further than that, in taking out a copyright, or in taking out a patent, the man consents that the copyright shall be confined to his writing, and shall not extend to any other form of expression of his intellectual idea.

I am not alone in this. The Supreme Court of the United States is with me.

Mr. CHANEY. Just a moment: It has not occurred to me that this is not either a question of continuity of property or a question of the quality of the property. It is simply a question of just to what extent people are to be given the control of their own writings, and as to just through what different forms they will be able to trace their property.

Mr. WALKER. That is the question, and that is the exact question which I am going to address myself to now.

Mr. CHANEY. Very well.

Mr. WALKER. The case of the ”Trade-Mark Cases” was decided by the Supreme Court of the United States in 1880, and it is reported in 100 United States Reports, at page 94. In that case the owners of certain collocations of words which they were using as trade-marks sought to sustain the validity of their trade-mark under the copyright law, holding that those words const.i.tuted writings which were copyrightable and which had been copyrighted.

The Supreme Court unanimously decided that the statute which they invoked, which statute was abundantly broad enough to cover that provision, was unconst.i.tutional, because although these collocations of words were writings in the literal sense they were not writings within the sense of the Const.i.tution. In so deciding, the Supreme Court narrowed down the meaning of the word ”writings” instead of extending it, by holding that the Const.i.tution gives a monopoly not to writings in general but only to such writings as have some literary character and permanent value in themselves. This is the language of Justice Miller:

And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.

The case which the Supreme Court had before it on this subject next is the Sarony case, decided in 1883, and reported in 111 U.S., page 58.

Mr. CHANEY. We had that yesterday.

Mr. WALKER. In that case Mr. Sarony sought to sustain the validity of a copyright upon a photograph of that then very ornamental gentleman, Oscar Wilde. It turned out that in this picture which Mr. Sarony personally took of Oscar Wilde, in his esthetic costume at the time he captured the hearts of the American women by his highly ornamental appearance [laughter], Mr. Sarony had personally posed Oscar Wilde, so as to give him a peculiar beauty, which might not have been developed by the ordinary photographer; and the Supreme Court of the United States sustained the validity of that particular copyright upon the particular ground that Mr. Sarony put particular skill in the posing of the man so as to produce a particularly artistic effect.

But if I should go into a photograph gallery and have somebody pose me who did not have that skill--and also because the subject would not admit of it, and would not produce any particularly attractive effect--and the attempt should be made to copyright that photograph, he would go right up against the decision of the Supreme Court in the Sarony case, and he would be told that the copyright was invalid, because it did not involve any intellectual effort in its production.

Mr. CHANEY. I think your picture would influence the committee quite as much as Oscar Wilde's. [Laughter.]

Mr. WALKER. Well, Oscar Wilde is dead, and not here to speak for himself; and I am living still.

Mr. CHANEY. I hope you will live long, sir.