Susan Marr Spalding.

WITHIN the past year the old question of copyright has been revived on the other side of the Atlantic, and has engaged the attention of an English commission and a continental congress. In their discussions, as in most of those in which the matter has been brought up in the United States, the aim of reformers has been generally to effect some changes through legislation. Most of their efforts have been directed towards the abolition of the practice of international piracy, which the United States has done so much to encourage, and from which in turn we are now beginning to suffer.

It must be confessed that so far as the relations between England and the United States are concerned, these attempts have in the main been productive of little good; it has probably impressed those who have examined the subject casually that the copyright agitation is a rather remarkable illustration of an ineffective agitation. No in

ternational agreement has been reached, and piracy still flourishes as a profitable branch of trade. It would certainly be singular, however, if all the energy devoted by speakers and writers to this subject within the past fifty years had been absolutely wasted, and as a matter of fact it has not. Although property in ideas

has not by any means yet secured that international and universal recognition which other kinds of property enjoy, it has, during the last half century, made gains; and these seem to point to further advances in the not distant future. The legislation of both England and the United States has extended the protection first granted to authors to painters, sculptors, and composers, and it may be said that the legislation of each country, considered separately, is founded on the recognition of the general right which is still internationally denied. While this progress has been made in the tendency of legislation, what has been the course of judicial decision on the subject? It might perhaps be expected that copyright, since it has been made the subject of legislative treatment, would have received but little consideration from the courts. But, on the contrary, some of the best discussions of property in ideas are to be found in the pages of legal reports. The subject has engaged the attention of the most eminent judges in England and America, so that there is to-day probably no branch of the law of property which has been as thoroughly and exhaustively investigated. Nor has this investigation been devoid of practical results. It is the peculiarity of the

English and American system of law that its principles are supposed to have remained unchanged from time immemorial, and are merely applied by judges to new cases as these arise. This assumption, however, does not alter the fact that each new decision is really a new addition to the law, made by the judge who decides it, quite as much as a new act of Parliament or of Congress. Hence, even of subjects which the legislature undertakes to regulate, the courts in a measure retain control, and not uncommonly, in the course of time, establish principles as novel as any that have been introduced by legislation. This has certainly been the case with one branch of copyright, which has received a development in the courts of a surprising character. In the following pages it is not proposed to go into minute legal distinctions, or to undertake to state what the law on the subject of stage-right actually is, but merely to call attention to the practical tendency of the treatment the subject has received in the courts, where it will be found that judges have accorded to literary property of a certain restricted kind a protection which goes far beyond the wildest dream of agitators for international copyright, and where principles which seem at first to be fatal to the enjoyment of ownership in ideas have been, by a peculiar course of judicial decision, developed into most effectual safeguards for its protection. More remarkable still, this protection has been secured for a sort of literary property which is in principle not more deserving of protection than any other, and it derives its complete protection from a mere accident in no way connected with any principle of property or of public advantage.

When we speak of copyright, we generally have in mind copyright in books, and the word is unfortunately chosen to express the notion of property in ideas, because the only sort of ownership it suggests is that which may be enjoyed through the multiplication of copies. But it is apparent that this is an accidental result of the process of manufacture used for books. The art of printing

enables any one who has a book to multiply identical copies to an unlimited extent; hence the only way of protecting the author is by preventing this. But if there is some other way of making use of the ideas contained in a book, the mere prevention of printing will not meet the difficulty at all. Now it so happens that there are, with a certain sort of literary composition, two ways of making use of the ideas. A play may be either printed or acted, and the latter of the two methods of deriving profit from it is in the case of most plays much the most important. This fact, however, though it is now obvious enough, does not seem to have occurred at all to the lawyers who drew up the first English copyright statute, and it is only in comparatively recent times that the important consequences that flow from it have been fully recognized.

By the mere accident to which we have just referred, while copyright in books fell, in the beginning of the last century, into the hands of the legislature, stage-right fell chiefly into those of the courts, and the different manner in which the two rights have fared might be cited at least by those who think that literary property needs all the protection it can getas a strong instance of the superiority of " "judge-made over statutory law. Copyright has been restricted to a brief number of years in the period of enjoyment, and internationally (unlike all ordinary kinds of property) is not recognized except by virtue of special treaties; stage - right, on the other hand, has received from courts of high standing a position which apparently makes its enjoyment perpetual and universal, restricted by the limits of no country, and impaired by no lapse of time.

The first copyright act passed in England for the protection of authors became a law in the eighth year of Queen Anne's reign, but no case of importance on the subject was decided in the English courts till half a century later. The act, but for the peculiar wording of which the great copyright discussion that has agitated the whole English-speaking race

for the past century would perhaps never have arisen, begins with a preamble declaring that books are frequently printed by persons without authority, to the very great detriment of "the authors or proprietors," and "too often to the ruin of them and their families;" and then provides that after a specified date," the author of any book or books already printed who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the book-seller or book-sellers, printer or printers, or other person or persons who hath or have purchased or acquired the copy or copies of any book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer." With regard to books not yet printed and published, or not yet written, the act gave the author and his assigns the sole right of printing and reprinting for the term of fourteen years, and at the expiration of this period for an additional fourteen years, if the author should be then living. Stringent provisions for the enforcement of these clauses were added.

In 1766, Andrew Millar sued Robert Taylor in the court of King's Bench for a piracy of Thomson's Seasons, the right to publish which Millar had purchased of Thomson in the year 1729. It appears from the report given of this cause célèbre by Sir James Burrow 1 that at the trial the jury rendered a special verdict that "before the reign of her late majesty, Queen Anne, it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand, for valuable considerations; and to make the same the subject of family settlements, for the provision of wives and children.' The time secured by the statute had expired, and therefore the question was whether Millar's purchase from Thom son had invested him with the copyright in the book, independently of the statute; or, in other words, whether he

1 Millar v. Taylor, 4 Burr., 2303.

possessed a perpetual copyright at common law. Some idea of the extreme importance of this case, which was decided when Lord Mansfield was chiefjustice, may be gathered from the space devoted to it in Burrow's reports (it occupies more than one hundred octavo pages), and the almost pathetic account given by Lord Mansfield in his opinion of the ineffectual attempts made by the judges to reach a unanimous opinion. "This is the first instance," he declares, "of a final difference of opinion in this court, since I sat here. Every order, rule, judgment, and opinion has hitherto been unanimous. . . We have all equally endeavored at that unanimity upon this occasion; we have talked the matter over several times. I have communicated my thoughts at large, in writing, and I have read the three arguments which have now been delivered. In short, we have equally tried to convince, or be convinced; but in vain. We continue to differ." Of the judges of the King's Bench, three were in favor of the plaintiff; one, Mr. Justice Yates, took the opposite view. This case would therefore appear to have settled the law on the side of perpetual copyright at common law, or the complete recognition of literary property; but the same question came up in the House of Lords in 1774, when all the judges delivered their opinions separately. Their decision was to the effect that an author had at common law perpetual copyright; but that it was taken away by the statute of Anne, and that therefore the statutory right is substituted for the common law right.

At first sight this decision may seem very simple and natural. At common law perpetual copyright existed. The statute of Anne took it away. But it may be doubted whether another instance is to be found in which a right of property, admitted to have been in existence for hundreds of years, has been by means of this sort wiped out of existence. The report of the decision omits to give the reasons on which the judges rested their answers. There is no question that the statute was devised