International Copyright by Judicial Decision

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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 international 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 discourse 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 into the hands of the legislature, stage-right fell chiefly into those of 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 get--as 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 celebre by Sir James Burrow [Millar v. Taylor, 4 Burr., 2303] 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 Thomson had invested him with the copyright in the book, independently of the statute; or, in other words, whether he possessed a perpetual copyright at common law. Some idea of the extreme importance of this case, which was decided when Lord Mansfield was chief justice, 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 by its promoters for the better security of authors. Yet the result of it is that a perpetual right is changed into one lasting only for a limited number of years. There is no question, of course, that Parliament was competent to make such a change, and the decision of the judges must be considered as conclusive proof that it did so; but the singular thing concerning the matter is the high-handed manner in which we find an acknowledged right treated. If English legislation has one peculiarity more marked than another, it is its respect for vested rights of property; yet here we find an admitted right, said to have existed from time immemorial, swept away in the very act of protecting it. It is impossible to avoid the conclusion that literary property was, even by those who looked upon it with favor, regarded in 1774 as differing in many essential respects from other sorts of property. An examination of the opinion of Mr. Justice Yates, in the case of Millar v. Taylor, furnishes ample grounds for this inference.

The conception of "property" or "ownership" in a literary composition is now so familiar that it costs an effort to imagine a state of mind in which it is not recognized. Yet nothing is more certain than that it is a conception of a very advanced character. The difficulty of framing and applying it when literary production first becomes common is in the dissimilarity between this and most other species of property. Lands, houses, money, horses, and cattle have corporeal substance,--are visible, tangible objects; the idea of property in them is consequently comparatively easy to grasp. But with regard to ideas, the difficulty consists in the fact that there is no visible corporeal object over which the rights of ownership can be exercised; and that while the value of most kinds of property consists, in a certain sense, in the ability to prevent its use. Turning now to the opinion of Mr. Justice Yates, who must be taken, from what Lord Mansfield states, to have brought the best energies of an unusually able mind to bear upon the question before him, we find that the idea of perpetual literary property is totally unintelligible to him. That a literary composition (that is, the manuscript) is the property of the author until he publishes it he admits to be plain; but this, he says, "holds good no longer than while it is in manuscript." Property, he continues, is "founded on occupancy," but "how is possession to be taken, or any act of occupancy to be asserted, on mere intellectual ideas? All writers agree that no act of occupancy can be asserted on a bare idea of the mind. Some act of appropriation must be exerted to take the thing out of a state of being common, to denote the accession of a proprietor; for otherwise how should other persons be apprised they are not to use it? These are acts that must be exercised upon something. The occupancy of a thought would be a new kind of occupancy indeed." Again, at what time could an author's property arise? In other cases it dates from the time of possession; but an author is fully possessed of his ideas when they arise in his own mind; yet the same ideas may occur to another, and in such a case how shall it be determined which is the owner of them? By publication the author makes his ideas common property. How can he, after publishing his work confine it to himself? If he had kept the manuscript from publication, "he might have excluded all the world from participating with him, or knowing the sentiments it contained; but by publishing the work the whole was laid open,--every sentiment in it made public forever; and the author can never recall them to himself,--never more confine them to himself, and keep them subject to his own dominion." It has been a maxim of the law for two thousand years that "nothing can be an object of property which has not a corporeal substance." Nothing can be an object of property, either, that is not "capable of distinguishable proprietary marks;" and where are the indicia or distinguishing marks of ideas? "What distinguishing marks can a man fix upon a set of intellectual ideas, so as to call himself the proprietor of them? They have no ear-marks upon them,--no tokens of a particular proprietor."

These quotations show that Mr. Justice Yates had very clear and definite notions as to the limits of property, but a reference which he makes to the civil law throws a stronger light on his view of the whole subject than any of his direct reasoning. What the Institutes have to say relating to "wild animals," he observes, "is very applicable to this case." And he then proceeds to draw a comparison between these two singularly related subjects. Animals ferae naturae are yours "while they continue in your possession, but no longer." So those wild and volatile objects which we call ideas are yours as long as they are properly kenneled in the mind. Once unchain or publish them, and they "become incapable of being any longer a subject of property; all mankind are equally entitled to read them; and every reader becomes as fully possessed of all the ideas as the author himself ever was."

If a judge were to-day racking his brain to discover an analogy in the law of property that should strike every one as forced and unnatural to the point of grotesqueness, it may be doubted whether a parallel between copyright and the law relating to wild animals would occur to him; and its use by Mr. Justice Yates is peculiarly interesting because its casual introduction in his argument proves conclusively that to his mind there was nothing forced about it. His opinion, singular as it appears to us at the present day, is full of evidence of his learning and his acuteness, and of his conception of property being such as to make the inclusion of literary property in it an impossibility. In the copyright cases which have subsequently arisen we shall find his ideas, in one form another, continually recurring, and interfering with the adoption of what we are now accustomed to consider the natural view of the subject, until, at least with regard to stage-right, it substantially disappears, and in this restricted but important field perpetual copyright as it existed before the statute of Anne is reestablished.

It will be seen that the two difficulties which appear to have stood most in the way of the recognition of copyright as a species of property were, first, that the subject of the property is not visible or tangible; and, second, that from analogy with other kinds of property, if literary ideas are within the exclusive ownership of the person who originates them, they remain so only as long as he retains them in his possession, or in other words until he publishes them, and that publication is a virtual abandonment to the public. Now, as suggested above, there is one species of literary property which admits of two sorts of publication: a dramatic composition may be made public by its appearance in a printed volume, or it may be given to the public on the stage. The latter method is that usually adopted, and is, strictly speaking, the analogue of the multiplication of printed copies in the case of a novel or poem. But it is apparent at the same time what great obstacles at the end of the last century stood in the way of the recognition of this fact. If perpetual copyright in books could be reduced to a short term of years by an act for the better protection of literary property, what chance was there for the right of representing plays on the stage? A playwright might own, as he undoubtedly would, his manuscript; but the moment he represented his play on the stage, that was a "publication," and a publication meant a dedication to the public. In his case there was not even an immemorial custom of stage-right, as there had been of copyright in books.

The first case involving dramatic copyright in England--at least the first of any importance--was that brought in 1770 by Macklin, the author of a farce called Love a la Mode, against Richardson and Urquhart, the owners of a magazine of the day. They had employed a person to take down the words from the mouths of the actors, and published the first act in their magazine, giving notice that the second act should be published the succeeding month. (It may be interesting to know that the sum paid this reporter was one guinea.) Macklin applied for and obtained a perpetual injunction against their doing so. The author, in this case, had used every precaution. The play had never been acted without his permission. After every performance he had taken away the copy from the prompter. He made two actors who desired to have it performed at their benefits pay twenty and thirty guineas for one night's performance of it. In this case, as in Millar v. Taylor, we find the notion of publication at once making its appearance. The counsel retained by Richardson and Urquhart argued that the acting of the play was tantamount to a dedication to the public, and it may be inferred from the very few words of the decision that if the piracy complained of had consisted of a representation at another theatre the decision might have been in favor of the Court Miscellany. But representation was one thing, and printing was another, and whatever might have been done with regard to the former, there was no doubt that the author had never published the play as a book is published. It should be observed here, perhaps, with reference to publication, that the right of authors in their manuscripts, or original unmultiplied copies of works of all sorts, has always been recognized by the courts, and one of the curiosities of copyright has been that a right should be universally recognized until the possessor attempts to render it of value to himself, and should at that critical moment disappear altogether.

In 1793 a case was decided in the King's Bench which has proved the germ of much discussion, although it is difficult to see how any doubt as to its proper decision could ever have arisen. The copyright statute of Anne provided penalties, as has been already stated, against the publication of any works protected by it. Coleman, the manager, had purchased the copyright of an entertainment, called The Agreeable Surprise, from O'Keeff, and had it represented on his stage at Richmond, when it was unexpectedly bought out by one Wathen at a rival theatre. Coleman brought an action to recover the penalty provided by statute. The question on which the case turned was simply whether the representation was a publication within the meaning of the act. The language of the statute throughout excludes the possibility of such an interpretation; its framers had in mind the multiplication of copies of books, or other writings, by the process of printing. Coleman's counsel, however, advanced an argument which was, to say the least, highly ingenious: that the representation was sufficient evidence for the jury to conclude that there had been piracy within the statute, because it was inconceivable that the performers could by any other means than the use of a copy have exhibited so perfect a representation of the work. The case, however, was considered by Lord Kenyon, then chief-justice, and Mr. Justice Buller too plain for argument, and they did not think it necessary to hear the defendant's counsel. Lord Kenyon said "There is no evidence to support the action in this case. The statute for the protection of copyright only extends to prohibit the publication of the book itself by any other than the author or his lawful assignees. It was so held in the great copyright case by the House of Lords. But here was no publication." Mr. Justice Buller added, "Reporting anything from memory can never be a publication within the statute. Some instances of strength of memory are very surprising, but the mere act of repeating such a performance cannot be left as evidence to the jury that the defendant had pirated the work itself."

It will be seen that there was no evidence that the play had actually been reproduced by memory, and Mr. Justice Buller's reference to surprising instances of strength of memory was evidently thrown out as mere suggestion. The fact on which the case was decided was that there was no evidence of publication within the meaning of the statute. If Wathen had reprinted the play, he would clearly have been liable to the penalties provided in the act; but to argue that a representation on the stage had involved a previous reprint were to beg the whole question. The statement, therefore, that "reporting anything from memory can never be a publication within the statute" was wholly unnecessary to the decision of the case, and was what lawyers know as an obiter dictum.

Notwithstanding this, however, from the time of this decision, the notion that piracy by means of memory differs from other sorts of piracy has repeatedly made its appearance, the view taken of the law, rather by tacit assumption than by any actual decision, being somewhat as follows: The author of a play, kept in manuscript, undoubtedly owns the manuscript, just as he owns his clothes, or his house. he may sell it, or leave it by will, or suppress it altogether. Moreover, he may have it represented on the stage; but if he does this, he must be very careful how he does it. If he represents it to indiscriminate audiences, as Mr. Justice Yates might have said, those who witness it are not at liberty to take it down by short-hand; but they cannot be prevented from using their memory, and if they carry it away in their memory they may themselves represent it elsewhere. It is evident that this view of memory really rested on a denial of stage-right, properly so called. The manuscript was looked upon before as the thing actually owned, but the ideas contained in it were ferae naturae,--liable to capture by the exercise of that faculty of the mind peculiarly adapted to the intellectual sport of piracy, the memory.

In this peculiar sort of limbo stage-right remained for nearly a century, and it was not relieved from it even when, in 1854, the whole subject of literary property again came up for discussion in the English House of Lords, in the case of Jefferys v. Boosey. [4 H.L., 815.] The composer Bellini, author of La Sonnambula, living at Milan and having a Milanese copyright of some sort, the exact nature of which did not appear in the case, assigned it to another Milanese citizen, who, in London, transferred it, in accordance with the forms of English law, to Boosey. The opera was unpublished, and the assignment transferred the right to publish in Great Britain only. Jefferys published an air from the opera, Come per me Sereno, and the question was whether this was an infringement. The case was decided in favor of the defendant, on grounds which it is not necessary to state here; it is chiefly interesting for the opinions of the judges, and of Lord St. Leonards (then lord chancellor) and Lord Brougham. It is impossible in this place to give extracts from these opinions, but any one who will read them will find them a mine of information on the subject of the legal aspect of property in ideas.

The further investigation of the question of piracy by memory was, however, not destined to be the work of English judges. Owing to another of the singular accidents of which the history of stage-right has been full,--the fact that most plays which are acted in the United States are produced in Europe or England,--the work of giving the final touches to the development of stage-right, and placing it on what seems destined to be a secure basis, was left to the courts of this country; and in order that the irony of fate upon our national pursuit of piracy might be complete, the play which was first to produce this result was designed and written as a satire upon American life, and was called Our American Cousin.

The play of Our American Cousin, described in one of the cases to which its representation in this country gave rise as a play "presenting, in suitable situations, those eccentricities usually attributed on the stage to Yankees," was written in 1852 by Tom Taylor. Whether the author had looked up the law of the subject as to the effect of publication, or was influenced by other reasons, the play was not printed; the manuscript, after going through several changes and vicissitudes, was in 1858 sold to Laura Keene, the well-known actress and manager, the transfer embracing the author's dramatic rights within the United States; Miss Keene, with the assistance of Joseph Jefferson, altered and adapted it for her theatre in New York. The play, thus changed, was brought out for the first time on any stage in October, 1858, and proved a great theatrical success. Wheatley and Clarke were at this time lessees and managers of a theatre in Philadelphia, and they, in a singular manner, had become possessed of a copy of the play. It had been written originally for representation at the Adelphi Theatre in London, of which Mr. Benjamin Webster was manager, and where Joshua Silsbee, an American actor, had an engagement. A copy of the manuscript came into Silsbee's hands, and he retained it, brought it back to the United States, and at his death, in California, in 1855, it came to his widow, from whom Wheatley and Clarke finally got it. From Jefferson they afterwards procured the additions and alterations he had made, and they immediately produced it at their theatre in Philadelphia. It should be stated also that before this both Wheatley and Clarke, and the actress of their company who performed the principal female character, had witnessed the performance in New York, but there was no pretense that they had been enabled to reproduce it through an effort of the memory. They succeeded in producing a close imitation of Laura Keene's play, who brought a suit for the infringement in the United States circuit court for the eastern district of Pennsylvania.

At about the same time Our American Cousin was brought out at the Boston Museum, and Laura Keene also brought a suit against Moses Kimball, the manager of that theatre, in the Massachusetts supreme court. These two suits were identical in character and object, but they differed in one particular: in the first, the fact that the imitation was obtained through a surreptitious copy came out; in the second, this did not appear, nor did it appear by what means Kimball had obtained the play, unless it was through sending persons to see it and commit it to memory. Owing to this difference, the two cases were decided differently, though both decisions recognized the same principle with regard to dramatic property.

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