Literary Property and International Copyright. 1C3 



The next question in the logical order of discussion is, Has the 

 author a natural proprietary right in the products of his brain ? In 

 other words, is there such a property- right a3 common-law cojnjritjlif* 

 Varying the question still, has the literary creator a natural right to, 

 and property in, his creatures ? 



Such creations, it is confidently affirmed, have all the attributes of 

 property. Adopt the theory that exclusive property orignates in labor, 

 and who, of all earth's toiling millions, has a clearer, or better title to 

 the products of his labor than the author? 



True, his labor is primarily and mainly intellectual; but it is often 

 severe, protracted and exhausting. No kind of labor is more exacting 

 and relentless in its demands, or more consuming to the vital energies. 



If the origin of exclusive property in a thing be referred to pre-occu- 

 pancy the title of the author to his intellectual creations is equally 

 clear, for he, certainly, first has possession of them. 



Sir William Blackstone, speaking from the bench, said : " A literary 

 composition as it lies in the author's mind, before it is substantiated 

 by reducing it into writing, has the essential requisites to make it the 

 subject of property. While it thus lies dormant in the mind, it is 

 absolutely in the power of the proprietor. He alone is entitled to the 

 profits of communicating, or making it public." 



But, strange though it may seem, jurists, publicists and statesmen are 

 sometimes met with who repudiate in toto theideaof property in literary 

 productions, as a natural or common-law right. Their line of reason- 

 ing is substantially this : First. Material substance is an attribute of 

 property, and nothing can be the subject of ownership which is not 

 corporeal; second. That identity is essential to exclusive ownership; 

 and, third. That materiality is essential to identity. 



That identity is essential to exclusive ownership is quite true ; but 

 that materiality is essential to identity is not true — it is simply a bald 

 assumption ; and therein lurks the vice of the reasoning. 



In the celebrated case of Millar vs. Taylor, decided by the Court of 

 King's Bench in 1769 — the subject of which was a piratical issue of 

 an edition of Thomson's Seasons — Mr. Justice Yates took ground 

 against literary property, and defended his position with much spirit, 

 and considerable plausibility. He said, among other things: "But 

 the property here claimed is all ideal ; a set of ideas which have no 

 bounds or marks whatever, nothing that is capable of visible posses- 

 sion, nothing that can sustaiu any one of the qualities or incidents of 

 property. Their whole existence is in the mind alone ; incapable of 

 any other modes of acqusition or enjoyment than by mental possession 

 or apprehension; safe and invulnerable from their own immateriality ; 



