Abbildungen der Seite
PDF
EPUB

rogative copies will be pursued in their connection with the general course of the subject.'

2

The cases which have now been cited, have been considered by very great authorities as proofs that the right of the crown, in certain copies, was regarded as a right of property of the same kind as that of authors. But if they do not show, that the right of the crown was a right of property merely, and if the high notions of prerogative entertained at the time entered into these decisions and affected them with reasons of religion or state, as is quite probable, then there is an argument to be drawn from them of great weight in favor of the existence of a common law right of property in authors, as a right understood at the times when these decisions were made. These cases were decided before the Revolution, at which it seems obviously proper to pause as at a stage in the inquiry. Notions of power and prerogative were then held and acted upon, such as could not be breathed at the present day in Westminster Hall, and the press had long been under the almost absolute control of the crown. Yet, in such a period, it was felt to be necessary to argue in support of the

See post, ch. 2.

2 Per Lord Mansfield Ch. J. and Willes, J. in Millar v. Taylor, 4 Burr. 2317, 2401. Lord Mansfield's remarks upon these cases are very cogent. He considered that " crown copies are, as in the case of an author, civil property; which is deduced, as in the case of an author, from the king's right of original pub

lication. The kind of property in the crown, or a patentee from the crown, is just the same; incorporeal, incapable of violation but by a civil injury, and only to be vindicated by the same remedy, as an action upon the case, or a bill in equity." Yates J. in the same case, who dissented, held, that the crown copies were founded on reasons of state or religion.

right of the crown by analogy to the right of the subject; and the courts not only recognized the analogy, but wherever the particular publication afforded the least color for the claim as a claim of property, they always took care to rest the king's copy upon the same grounds that would have established the right in a private person. Fictions were resorted to, as in the case of the Latin Grammar, in order that the right of the king might stand upon property. All this shows that there existed at that time a right of property in copies, growing out of authorship, so well settled, so universally received and acted upon, and so thoroughly established in the notions of the profession and the public, that the crown was forced to borrow the aid of its analogies, and to claim upon the same title, as that which protected a sermon or a poem.

The proprietors of copies applied to parliament in 1709, for an act more effectually to secure their property forever, by what they thought a more adequate remedy than any that had then been used. It seems, that no one had then supposed that a bill would lie for an injunction and relief in equity. But the common law remedy of an action was understood, though it was justly regarded as totally inadequate, both because of the difficulty of proving all the actual damages, and because "the defendant was always a pauper." The petitioners therefore prayed, that cON

2405.

Millar v. Taylor, 4 Burr. 2317,
Vern. 220, 275.

2 So assigned in the petition of the booksellers. 4 Burr. 2318. Al

FISCATION of the counterfeit copies might be made one of the penalties. This led to the Statute 8 Anne, c. 19, passed in 1709.1

The preamble of this act is worthy of attention. It is as follows: "Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted and published books and other writings without the consent of the authors or proprietors of such books and writings to their very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; be it enacted,' "2 &c. The first section of the act then provides, that after the 10th of April, 1710, the authors of books already printed, who have not transferred their rights, and the booksellers, &c. who have purchased copies, shall have the sole right of printing them for the term of twenty-one years ; and the authors of books already composed and not printed, or thereafter to be composed, and their assigns, shall have the sole right of printing the same for fourteen years; with a penalty and forfeiture for printing without consent of the proprietor. The

though there was no precedent of a common law action tried, yet that it was universally held that an action at common law would lie is apparent from this petition.

1 See Appendix, p. 1.

The title of the act is, "An

Act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned."

8 Anne, c. 19.

second section declares that the books, the property of which is intended to be "secured" by this act are such as shall, before publication, have been entered at Stationers' Hall.

It is now necessary to trace the history of the subject in the courts, after the passage of this act, until the year 1769; in order to see whether this statute was considered as the source of literary property, or whether in fact literary property was held to depend upon principles of the common law known and received before and independent of the statute.

There are two classes of cases, within the period now under consideration, both of which have proceeded upon the author's right of property independent of the statute. The first class is that of books or other writings after publication; the second class embraces manuscripts before publication.

1. The question as to the common law right, with reference to old copies, after publication, could only arise after the full term of the act of Anne had passed, that is, at the end of twenty-one years from the tenth of April, 1710, or after the tenth of April, 1731. From this time until the case of Tonson v. Collins, in the king's bench in 1761, the court of chancery exercised a jurisdiction by injunction, in which the antecedent right of property must have been the right to which the court granted its protection.

The first case was one before Sir Joseph Jekyll, as master of the rolls, in 1735, in which he granted an injunction against printing the Whole Duty of Man.

This book first appeared in 1657, and the statutory term had passed. The right of the plaintiff therefore could only have been the general right of property. In the same year also, (1735) Lord Talbot granted an injunction against printing Pope's and Swift's Miscellanies, many of which were originally published before the statute.2

In 1736, Sir Joseph Jekyll granted a third injunction against printing Nelson's Festivals and Fasts, a book first published in 1703.3

In 1739, Lord Hardwicke granted a fourth injunction against printing Milton's Paradise Lost, the title to which the plaintiffs derived under an assignment made by the poet in 1667.4

In 1751, Milton's poem again came before Lord Hardwicke, in an application for an injunction to restrain the defendant's printing an edition of the poem with the notes of Dr. Newton and other commentators, all of which belonged to the plaintiffs. The bill derived a title to the poem by the author's assignment in 1667, to the life by Fenton, published in 1727, to Bentley's Notes, published in 1732, and to Dr. Newton's Notes, published in 1749. The defendants put in an answer immediately, and set up

Eyre v. Walker, cited 4 Burr. 2325; 3 Swanst. 673. Sir Joseph Jekyll sat in parliament when the act of Anne was passed.

2 Motte v. Falkner, cited in Millar v. Taylor, 4 Burr. 2325, and in Tonson v. Walker, 3 Swanst. 673. Lord Mansfield, (1 W. Blackst. 331) said that this case was argued on

the objection that the statute term had expired.

3 Walthoe v. Walker, cited ut supra.

4 Tonson v. Walker, cited, ut supra. At the date of this injunction, the term of twenty-one years secured by the statute to old copies, had been exhausted for eight years.

« ZurückWeiter »