ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 233 



The learned President has said, what is quite, I think, the accurate 

 truth of the matter: it cannot be invoked to give a title to the United 

 States or to their lessees which they have not otherwise got. It is 

 material — most material — when you come to the question of regulations. 



The President. — Sir Charles, I must observe that there is a protec- 

 tion of an industry which is often called proi)erty today: what we call 

 in French "propriete industrielle", that is, a sort of qualified prop- 

 erty. It is a sort of right which in my personal opinion is wrongly 

 called property, but it is so called, however, in the current use of the 

 language of all nations to-day, and Treaties have been made between, 

 nations to protect that property. As it is a certain artificial construc- 

 tion of law it may be relevant to plead that it is more or less worthy 

 of protection, according to the more or less degree of morality which 

 resides in it. 



Sir CiiAKLES Russell. — Could you give a concrete illustration, sir, 

 of that law? 



The President. — For instance, the right of authors, copyright. 

 That is styled "propriete literaire" in our Treaties. That is not prop- 

 erty, in my personal view, but it is commonly called property in inter- 

 national language. That of course is a sort of (lualitied right, which 

 may be more or less extended and which, in fact, has been more or less 

 extended, I mean, to justify the introduction of the argument of the 

 other side, as to the moral character of the right which is iirotected, or 

 in respect of which protection is invoked. I do not argue the case 

 now, of course. 



Sir Charles Eussell. — If there is a right there is a right. 



Lord Hannen. — I understand that you are contending now, that the 

 need of the protection to make the thing valuable, does not establish 



that there is a right to it that protection. 

 999 Sir Charles Eussell. — No; I tried to say so, and I think 



I succeeded in saying so more than once, and I applied this to 

 the right to the industry just as to the fur-seal. 



May I say, Sir, as you have introduced the question of copyright, 

 there is no such thing as the recognition internationally of copy right 

 or of patent right except by Treaty. There is no such thing, and there 

 is no country in the world that knows that better than America, because 

 it is only very late in the day indeed that it has come into any arrange- 

 ment with Great Britain of a protective character of that Icind. On the 

 other hand I may point out according to the opinion of distinguished 

 lawyers in England, so far as municipal property is concerned, the 

 statutes which protect copyright are but an affirmance of a principle 

 which is a ijrinciple of the common law. 



The President. — I understand the argument of the other side to go 

 some what to the same extent as regards the protection of an industry. 

 They want the industry protected as others want copy-right. 



Sir Charles Russell. — I will come to that presently. 



The President. — I think Mr. Justice Harlan was speaking of an 

 industry. 



Sir Charles Eussell. — He was, but I was following the line of 

 property in the fur-seal or herd of the fur seal, and I will come, in due 

 course, to the question of the industry itself, and what a right in an 

 industry, in point of law, means. That is not the point I was at that 

 moment upon. 



The President. — Then perhaps we had better come to that to- 

 morrow. 



[Adjourned tiU to-morrow at 11.30.] 



