Part 1 (2/2)
The most important influence in support of the decision was exercised by the arguments of Justice Yates and Lord Camden. ”This judgment,”
says Drone, ”has continued to represent the law; but its soundness has been questioned by very high authorities.” In 1851 Lord Campbell expressed his agreement with the views of Lord Mansfield. In 1854, Justice Coleridge said: ”If there was one subject more than another upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give his judgment peculiar weight, it was this. I require no higher authority for a position which seems to me in itself reasonable and just.”
In 1841 an important debate took place in Parliament upon this same issue. The right at common law of owners.h.i.+p in perpetuity was a.s.serted by Sergeant Talfourd and Lord Mahon, and the opinion that copyright was the creation of statute law and should be limited to a term of years was defended by Macaulay.
The conclusions of the latter were accepted by the House, and the act of 1842, which is still in force, was the result. By this act the term of copyright was fixed at forty-two years, or if at the end of that time the author be still living, for the duration of his life.
I have referred to these discussions as to the nature of the authority through which the author's owners.h.i.+p exists or is created, as the question will be found to have an important bearing upon international copyright. In connection with this debate of 1842 was framed the famous pet.i.tion of Thomas Hood, which, if it were not presented to Parliament, certainly deserved to be. It makes a fair presentment of the author's case, and is worth quoting:
”That your pet.i.tioner is the proprietor of certain copyrights which the law treats as copyhold, but which in justice and equity, should be his freeholds. He cannot conceive how 'Hood's Own,' without a change in the t.i.tle-deeds as well as the t.i.tle, can become 'Everybody's Own' hereafter.
”That your pet.i.tioner may burn or publish his ma.n.u.scripts at his own option, and enjoys a right in and control over his own productions which no press, now or hereafter, can justly press out of him.
”That as a landed proprietor does not lose his right to his estate in perpetuity by throwing open his grounds for the convenience and gratification of the public, neither ought the property of an author in his works to be taken from him, unless all parks become commons.
”That your pet.i.tioner, having sundry snug little estates in view, would not object, after a term, to contribute his private share to a general scramble, provided the landed and moneyed interests, as well as the literary interest, were thrown into the heap; but that in the mean time, the fruits of his brain ought no more to be cast amongst the public than a Christian woman's apples or a Jewess' oranges.
”That cheap bread is as desirable and necessary as cheap books; but it hath not yet been thought just or expedient to ordain that, after a certain number of crops, all corn-fields shall become public property.
”That, whereas in other cases long possession is held to affirm a right to property, it is inconsistent and unjust that a mere lapse of twenty-eight or any other term of years should deprive an author at once of princ.i.p.al and interest in his own literary fund. To be robbed by Time is a sorry encouragement to write for Futurity!
”That a work which endures for many years must be of a sterling character, and ought to become national property; but at the expense of the public, or at any expense save that of the author or his descendants. It must be an ungrateful generation that, in its love of 'cheap copies,' can lose all regard for 'the dear originals.'
”That, whereas, your pet.i.tioner has sold sundry of his copyrights to certain publishers for a sum of money, he does not see how the public, which is only a larger firm, can justly acquire even a share in copyright, except by similar means--namely, by purchase or a.s.signment. That the public having const.i.tuted itself by law the executor and legatee of the author, ought in justice, and according to practice in other cases, to take to his debts as well as his literary a.s.sets.
”That when your pet.i.tioner shall be dead and buried, he might with as much propriety and decency have his body s.n.a.t.c.hed as his literary remains.
”That, by the present law, the wisest, virtuousest, discreetest, best of authors, is tardily rewarded, precisely as a vicious, seditious, or blasphemous writer is summarily punished--namely, by the forfeiture of his copyright.
”That, in case of infringement on his copyright, your pet.i.tioner cannot conscientiously or comfortably apply for redress to the law whilst it sanctions universal piracy hereafter.
”That your pet.i.tioner hath two children, who look up to him, not only as the author of the 'Comic Annual,' but as the author of their being. That the effect of the law as regards an author is virtually to disinherit his next of kin, and cut him off with a book instead of a s.h.i.+lling.
”That your pet.i.tioner is very willing to write for posterity on the lowest terms, and would not object to the long credit; but that, when his heir shall apply for payment to posterity, he will be referred back to antiquity.
”That, as a man's hairs belong to his head, so his head should belong to his heirs; whereas, on the contrary, your pet.i.tioner hath ascertained, by a nice calculation, that one of his princ.i.p.al copyrights will expire on the same day that his only son should come of age. The very law of nature protests against an unnatural law which compels an author to write for anybody's posterity except his own.
”Finally, whereas it has been urged, 'if an author writes for posterity, let him look to posterity for his reward,' your pet.i.tioner adopts that very argument, and on its very principle prays for the adoption of the bill introduced by Mr. Sergeant Talfourd, seeing that by the present arrangement posterity is bound to pay everybody or anybody but the true creditor.”
In France perpetual copyright was guaranteed from very early times.
The Ordinances of Moulines of 1556, the Declaration of Charles IX. in 1571, and the letters-patent of Henry III. const.i.tuted the ancient legislation on the subject, but the sovereign had a right to refuse the guarantee whenever he thought desirable. In 1761 the Council of State continued to a grandson of La Fontaine the privilege that his grandfather possessed, on condition, however, that he should not a.s.sign it to a bookseller. The Revolution of 1789 modified this regime, and now copyright is guaranteed to authors and their widows during their lives, to their children, for twenty years; and if they leave no children, to their heirs for ten years only. According to French law, a French subject does not injure his copyright by publis.h.i.+ng his work first in a foreign country. No matter where the publication takes place, copyright forthwith accrues in France on his behalf, and on the necessary deposit being effected, its infringement may be proceeded against in a French court. Moreover, a foreigner publis.h.i.+ng in France will enjoy the same copyright as a native, and this whether he has previously published in his own or in any other country or not. In Germany and in Austria copyright continues for the authors life and for thirty years after his death. The longest term of copyright is conceded in Italy, where it endures for the life of the author and forty years, with a second term of forty years, during which last any one can publish the work upon paying the royalty to the author or his a.s.signs. The shortest term of copyright exists in Greece, where it endures for but fifteen years from publication.
In the United States, by the law of 1831, the term is for twenty-eight years, with the right of renewal to the author, his wife or his children, for fourteen years further. The renewal must be recorded within six months before the expiration of the first term of twenty-eight years.
Drone says:
”In the United States the authorities have been divided not less than in England regarding the origin and nature of literary property. Indeed, the doctrines there prevalent have ruled our courts. In 1834, in the case of Wheaton _vs._ Peters, the same question came before the Supreme Court, that had been decided by the Court of King's Bench in 1769, and by the House of Lords in 1774--namely, whether copyright in a published work existed by common law; and if so, whether it had been taken away by statute.
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