New-York tribune., 1875-10-15
NEW PUBLICATIONS.
THE AMERICAN LAW REVIEW October Little
Brown. Il Co.

discussing the question OF perpetual eoiyrSht, ana OF
the Of literary property, will doubtless attract te
attention of authors and publishers well as jnriss by
TIE elcsrness of its historical details and It's logical rigor
of argument The writer that down 10 the time OF
Queen Anne, authors had enjoyed perpetual properly
their works under the common law. During her reign
u7l0 passed by Parliament securing to ar-
thors The sole right Of publishing their intellectual pro
dnotione for q specified period. The perpetual right,
however undisturbed for half century after this
enactment, and in 1869 IL received the solemn sane
ton Of the Court Of Kings Bench But hve
years later u774l, this Judgment was swept away
by the House Of Lords whoproclamed that the perpetu
fly Of literary property had been destroyed by thestade
OF Anne, and that authors had copyright in their
except under that act This has Eow been the law OF
England Tor century. copied ny the United states
government in 1890, and has since ruled Congress and
the Although Il las been denounced as bad law
by the abies usts of England and America il has been
defended by Others the former maintaining that copy
right natural right guaranteed by the common law,
and not abridged by statute while the latter assert that
IL artificial right. created and controlled by the leg
islaure. The writer of the article proceeds TO consider
the foundation of property in general, and It's
application to intellectual production. In com
mon with the highest authorities ON natural
law. ne places the origin of property in preoccu-
paney which he regards identical with first pos
session chief Of first is creation
The the first possesscr Of that which he creates
Hence the origin of the right 10 property is found in
labor Labor is implied in occupancy. Ownership is
created 10y production. ana tine producer becomes the
ewaer THIS principle general aud covers all prodnc-
tens Ii be applied TO the produce of one Kind OF
labor and withheld from that of another. lt matters
not whether the labor be Of the body the mind. The
yield OF both comes the grand principle OF
property which recognizes no distinction between the
poet and the peasant the ownership of their produe
tons There is no argument the right of property in
fruits Of bodily labor which does not apply with
equal force TO the right property IN the fruits Of intel
lectual labor No vital qualities can he assigned
TO one which not equally inherent IN the
other. Neither in its origin nor In its
essential qualities literary property OF peculiar char
acter 1t simpya branch Of general property 1t is
acquired by labor succession t purchase. 1t il trans
mitcd by sale, donation. and hcQuCst II be LOST
by abandonment. injured trespasScd npOn. stolen Ii
may the subject of contract bargain trade, fraud and
may be borrowed and lent mOrtSaEed and paWned The
only distinction between properly in the frs Of intel
lectual aud Of manual labor. is that the is without
tera substance while the other material and corpoFca
The property OF the author is not in the material which
preserves his work. bU in the conceptions which constr
tute intellectual creation. The property is what's
conveyed by the words Of the manuscript. or the
printed page and not in the paper or parchment; Ill
the beauty expressed 10y oolo and not in the canvas
IN the life breathed into the statue and not IN
the marble bronze. II is intangible creation OF the
mind fixed in form and communicated TO others by Ian
guage Incorporeal ITSELF il is aached to the cOrorcal
But material substance is not essential attribute OF
property No doubt a thing he capable Of identit
cation in order be the subject of exclusive ownership
But when identity be determined it makes no
difference whether it be cOrgOrea ncorporoal. Now
The id nifty Of intellectual productions is 10 less marked
than that OF manual productions 1t is more difficult 10
draw the line property between the literary works of
Tonnyson and Of Emerson than between their bonds ard
lands SO complete, indeed, is the idcntty of literary
property that the productions of genius be cassed
with reference their respective authors with less
accuracy than the architect assigns capital or eathe-
dral TO its order aud period, a natural
ist determines animal from n single bone.
II the lost books OF Lvy found without exter-
nal clew 10 their authorship, there would be those who
would quickly recognize in them the proprietary marks
Of the great historian Still more remarkable is the
identity of musical composition. master VIII COM
pete great musical creation without putting note on
paper II is without material form in the realm
Of Imagination marked is its individuality that
will reproduce il without the aid Of written
notes "Tine's eacing fingers do not destroy what is
best in Literature. While many Of the Bcman monuments
~ brass ana stone no longer be distinguished the
intellectual monuments have been preserved intact
for twenty centuries The greatest creation Of
ancient genius the niad, has not only kept its
identity for nearly thirty centuries, but accord
ing to famous Greek scholars, II recited
from memory at the Grecan festivals for before
"hnprisoned in written characters" The paper
then goes To show that if before publication an author
has unconditional property in his WORKS the right is not
lost by the feet Of publication. II this species of prop
erty thus lost the original owner il must be upon
the principle Of abandonment contract. But IL IL con
ceded by all writers natural law there CO be no
abandonment Of property without the consent OF the
owner Hence abandonment implies intention on the
part ouhe But such intention is admitted by
the author lie to assert his rights OF owner
ship In publishing his book, he maintains vigaut
watch his property and loudly protests against its
spoatiOn. The theory of abandonment, then,
must be rejected Nor is the theory Of compact
between the author aud the public any tenahe.
The author gives the1eader intellectual
tane1 in book. But he 10 himself the excu
sve ownership OF the intellectual property The right to
multiply copies of the book is part of the contract
This right exclusively reserved to the author by the
copyright notice. 1t may be worth hundred thousand
dollars, while the amount paid for the book is hut the
part OF that No considera-
ton paid for the copyright But II is principle Of
Justice older than the written law that without the owners
consent property only be acquired by valid cOnsd
Grafton Now assuming that literary property both be
fore and after publication, is founded the
principles other property it follows that IT mu.t be
governed by the same fundamental rules AID protected
by the same legal safeguards that thrown around all
property Whatever violates the sancty OF one violates
the sancity OF the other Now Of the chief func-
tons Of government is 10 preserve the sanctity Of
property. But the legislation which reduces the owner
chip of literary property from perpetuty 10 term of
proceed according TO the recognized Tn-
eipes property. There IA difference OF principle
between statute which requires author TO surrender
his works to the public prescribed time, and one
which would compel the owner OF the Mammoth Cave,
after term of years, admit visitors to view its sub
tHranean wonders without charge. The law which puts
an arbitrary terminus upon the ownership OF literary
property the in principle with one that would
limit the farmers right his orchards and grain fields
TIL, application Of this principle material possessions
voild raise every Saxon hand IN rebellion Yet FOR
century the principle has been applied with
Immunity 10 a species OF property less val