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fore, has between some nations led to treaty stipulations, by which alone the casus omissus of the public law can be supplied; and the example of those nations, which have thus supplied the omission, shows what consistency with the principles of justice requires.

In the next place, it may be asked, how the actual legislation of most countries, limiting the duration of an author's right, is to be reconciled with the theory which gives him, if it gives anything, a perpetuity? If the theory, which founds an author's exclusive right to the proceeds of his work in natural justice, be correct, it certainly involves as a consequence the perpetual duration of the right. The legislation of England and America, and of many other countries, has practically abridged the author's property, and reduced it to a term of years. Does it follow that society, in this course of legislation, is unjust?

The actual legislation on this subject should be regarded as a compromise. The claim of authors, resulting from the principles of natural right, involves the perpetual duration of the property. But in order that such property should be of any value, it is necessary that society should interfere actively for its protection. It can interfere by the enactment of penalties,, which, in order to be effectual, must be severe; or it can interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favor of an exclusive right, any farther than it finds such a course

beneficial to its own interests, in the broadest sense of the term. A perpetuity in literary property involves some inconveniences, which may come to be serious; one of which is, that the text of an author, after two or three generations, if the property be retained so. long by his descendants, belongs to so many claimants, that disputes must arise as to the right to publish, which are very likely to prevent publication altogether.1 This would be a great misfortune to society; and it is to guard against this and other inconveniences, that society may fairly require, as the price of its active protection by stringent enactments, that the author and his representatives should surrender a part of their full right re

1 The Emperor Napoleon is reported to have stated this objection to a perpetuity, in council, with his characteristic practical wisdom, as follows: "Napoleon dit que la perpétuité de la propriété dans les familles des auteurs aurait des inconvéniens. Une propriété littéraire est une propriété incorporelle qui, se trouvant dans la suite des temps et par le cours des successions divisée entre une multitude d'individus, finirait, en quelque sorte, par ne plus exister pour personne; car, comment un grand nombre de proprietaires, souvent éloignés les uns des autres, et qui, après quelques générations, se connaissent à peine, pourraient-ils s'entendre et contribuer pour reimprimer l'ouvrage de leur auteur commun? Cependant, s'ils n'y parviennent pas, et qu'eux seuls aient le droit de le publier, les meilleurs livres disparaitront insensiblement de la circulation.

"Il y aurait un autre inconvénient non moins grave. Le progrès des lumières serait arrêté, puisqu'il ne serait plus permis ni de commenter, ni d'annoter les ouvrages; les gloses, les notes, les commentaires ne pourraient être séparés d'un texte qu'on n'aurait pas la liberté d'imprimer.

"D'ailleurs, un ouvrage a produit à l'auteur et à ses héritiers tout le bénéfice qu'ils pouvent naturellement en attendre, lorsque le premier a eu le droit exclusif de le vendre pendant tout sa vie, et les autres pendant les dix ans qui suivent sa mort.

"Cependant si l'on veut favoriser davantage encore la veuve et les héritiers, qu'on porte leur propriété à vingt ans." LOCRÉ, Legislation Civile de la France, t. ix. pp. 17, 18, 19. Renouard, Droits D'Auteurs, tom. 1, p. 387.

garded as a right according to the general principles of natural justice.

The great problem in legislation is to determine the point where this surrender ought to be made. It is a mixed question of policy and justice, with regard to which no positive rule can be laid down. The experience of nearly all nations, however, has shown that the interests of literature, as well as the dictates of natural justice, require that the children of an author should be secured in the enjoyment of the right, for some period after his capacity to provide for them has ceased.1

1 In England, as the law now stands, a copyright lasts during the author's life, and for seven years after his decease; or for forty-two years, in case the life is terminated before thirty-seven years from the day of first publication, (5 & 6 Vict. c. 45, §3.) In France, the proper ty in a work is secured to the author for his life, to his widow for her life, in case the marriage contract endows her with it, and, after their death, to the children for twenty years. In Holland and Belgium, the duration of a copyright is to the author for his life, and to his heirs and representatives for twenty years

after his death. In Prussia, copyright lasts for the author's life, and his heirs have a term of thirty years from his decease. In Russia, it is for the author's life, and for twentyfive years to the heirs. In Austria, the rights of authors do not descend to their heirs. In Denmark, Norway, Sweden, and Spain, copyright is perpetual. Godson on Patents and Copyright, pp. 319, 320. Renouard, Droits D'Auteurs, tom. 1, p. 226, et seq. In the United States, it is for twenty-eight years, with a right of renewal by the widow or children for fourteen years more. Act 3d Feb. 1831, §§ 1, 2.

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CHAPTER I.

HISTORY OF LITERARY PROPERTY.

THE object of the present chapter is to state succinctly the history of Literary Property, in the jurisprudence of England and America, from the earliest recognition of such property to its modern condition. Our attention is, of course, first to be directed to its origin in England, as a right of property under the law of England. The foundation of the right in the law of general justice applicable to all property, has been already considered.

The

The term, "copy of a book," has been used for ages in England, to signify the sole right of printing, publishing and selling a written composition. question whether, at the common law, the author of such a composition formerly had a perpetual right of property in his work, has been attended with some difficulty; but whoever, at the present time, carefully considers the various authorities bearing

'Millar v. Taylor, 4 Burr. Rep. 2311. "I use the word 'copy,' said Lord Mansfield in this case, in the technical sense in which that name or term has been used for

ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communited by letters."

upon the question, and the manner in which it came finally to be settled against the perpetual right of property, can have little doubt that such a right once existed in England. If this be true, it follows that subsequent legislation, so far as it abridged this right of property, took away what once belonged to authors by the common law of England.

Until the year 1640, the crown exercised an unlimited authority over the press, which was enforced by the summary powers of search, confiscation, and imprisonment, given to the stationers' company, and by the then supreme jurisdiction of the starchamber. These are undoubtedly lights to which we should not turn for safe guidance upon any question of a public nature, or to ascertain the modern rights of the subject against the crown. But it cannot escape the attention of any one, accustomed to investigate a question of private law, that if, in the period of the most arbitrary features that have at any time existed in the English constitution-features, of which it has now so divested itself that we are accustomed to speak of them as utterly repugnant to the true principles of the constitution — a matter of private right was held, respected, contemplated and even enforced, through that very jurisdiction now discarded and justly reprobated, such a right must have historical evidence in its favor of grave and striking character. Whatever in the law of England concerning justice between man and man, has lived through those periods of the constitution when arbi

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