New-York tribune., 1875-07-24
HISTORY OF COPYRIGHT.
III.

OF LITERARY PROPERTY AND THE PRINCIPLE OF
DIvEsurURE-oVTLtNE OF THE COrYklGHT LEG-
IsIArION OF ENGLAND.
To the Editor Of The Trtbun,.
SIR: The Greeks and Romans and SaXOns had no
printing press, and no tlraters taking money at the
doors. II is idle 20 search antiquity, or even me-
dieyal England FOR Copyright or stage-right, or
my right to my Cochin China hen, and every chick
she hatches. Bon tgis cst dmIgGrc jrd; common
law old its roots are, has at every period of ITS
existence expanded s branches becanse it, nature is
such permits apply old principles to new con-
tngenoies to bloodlounds, potatoes, straw paper,
the printing press, each they rise. Copyright ard
Stage-righ and many other recent rights. grew out
of tmO Old principles of common law; and these twO
old principles laid hold Of the printing press and the
thea'er s0oa rs hag could, and hor they could
THE GOVERNING PRINCIPLES.
The first old principle allude % Is thls-produc-
tive AMI unsalaried labor, if it clash with prop
erty, creates a property. To expand this htte-If
A, working with his own or common materials, pro
duccs a new thing be- creates and Acquires prop
erty only if he does this tor equivalent paid by
B. and with Is materials, open materials, he com
pounds hi, title, and the new property s Bs. Ex-
ampleall the uncanght fish in tie belong 20 the
public. Yet every caught fish comes 10 hand phi
vate property. because productive Labor, when II
clashes with precedent title creates property at
common Jaw. Bat if B pays a sum agreed, to fish
the public sea- the caught fish are b..
The second old principle * ths-Law Gbbors dives
,iture, ar forfeiture OF property From time imne-
mortal the law of England has guarded property
against surmiscs and surprises, by defining the terms
on which it Will permit divestiture. They are two:
"Consen-us" and DclictumJ' that is 10 say clear
consent aud long neglect,' each to be proved be-
fore a Jury.
Hy the first principle viz: that productive labor
not clashilg with property creates property writer
hs pa master acquires the sole right t. print tae
new work for sale. All lawyers ont OF Bedlam
thus far With me.
by the second the ProprietOr acquires nothing at
all he merely retains forever that sole right to
print, which he has acquired by productive labor
unless indeed he diyests himself by clear consent
OF " long neglect TO be proved before jury
Transfer to another individual is ' clear consent
To leave a pratcd book fifty years out of print might
possibly be "deiictun" or long neglect-t d jury
sho~M 50 decide-and that would make the right
mon.
But 10 print anl reprint ones own creation is TO
exercs the ezo nsiye right and exercise is the op-
pOste III dchctum;' 1t is the very course the COM
mon law has prescribed from time immemorial to
keep alive an exclusive right acquired under prin
ciple No. /.
FIRST EFFECT OF THE PRINTING PRESS.
So much for the governing principles. Now for
their operation in point of fact.
The first effect OF the printing press TO dis-
courage original cOmpOsitOns This il known 10
few, and sounds strange, but the reason IL simple;
the world was in arrears; il hnngered for its great
old masterpieces famous, but accessible to few. The
Bible the Prayer-books. the classics and transla-
tions-these claimed circulation before doubtful
novelties. The writer's that profted by the early
presses were scholars who could collate Greek and
Latin MSS OF at all events correct the proofs.
The medieval publishers were substantial printers
who could pay scholars for this work. Hence arose
a sort of equitable though arbitrary restrictiOns
printers who had paid the c0mpositors 10 set
up Greek or Roman text from manuscript and
also paid a scholar 70 correct the proofs thought 1t
bard that mere mechanical printer should come
after them next day. and print on their print at half
the expense; they used To petition the State for
the sole right print that particular text for year
or two, and they petitioned not assgnees of an
author, which is the only road a modern statute
knows, but on much broader equity. They urged
that where one man has sown another ought not 10
reap that same year. Ar that time Europe was full
OF ittle Kings Dukes, Princes, P0destas and Seig
neurs and these pOtentates took a larger share IN
legislation than nowadays. They often granted
these SNORT tAtiuSlNt AlSut5 lp sum PihieNiSs 'O
with discretion. The term is sometimes tive years,
but ofsen not more than two. The printers were to
be encouraged 10 print noble books, but ancient
learning must not be bound too long In modern
chains. These poor princes lived in a rude age.
Alas the hctbed of civilization had not yet reared
that choice exotic, the cantlng thief who steals as
he saws for pure love of the public, and then turns
round and sells the public his stolen goods, but ar
ges as if he gqre them. In other words, justice was
in those days often misled by ignorance but was
not stone blind, high gravel blind" with Equ-
vogue and popular Cant.
These short restrictive titles, founded on Equity
and confined to some single book, must not be coD-
founded with the literary patents cum priyiegio.
monOpolies in whole species OF books. which were,
at a later epoch granted, aud were very obiectOna-
ble and aicdys ddease 10 copg1ght as is proved by
their collisions in open court. Statoners' Company
AIT ClInan and Roper agt. Strcater etc. etc.
When the Bible and the classics etc. we're in
print living authors got their turn and those short
restrictive rights disappeared for nobody in that
day seems 10 have doubted that the copyright of
living author, of his paymaster, was an everst-
ing property that needed special interference OF
authority. Accordingly you never find patent
cum prvrgiO granted to any living author, OF the
printer of his work. The universal law Of property
protected live labor.
LICENSE TO PRINT.
No French or Dutch jHrist disputes that intellec-
tual property was the product Of his national law
though afterwarI regulated by statutes. and that
alone Is reply TO the metaphysical sophists who
argue a priOri that law could not recognize
a property 50 subtle. However little fact is worth
a great deal of sophistical conjecture 50 let ~ ex-
anime fact keenly and candidly. In England the
early history Of the property has to be read subject
to lust caution; must assign no judicial anthor
ity 10 unconstitutional tribunals but only CLEAN old
facts from tncm, and that discreetly From the m
fancy OF printing till the year 60 an Engishman