THE nomenclature of common life and the nomenclature of common law have brought with them from an age without philosophy, a time when every house was defensible, when the king was the state, when the large landholders were pares and comites, from semi-barbarous times in fact, words and phrases denoting ownership and descriptive of the subject-matter owned. Property, in the law, is that which belongs to a man, — that which is his own,— that which is proprium sibi. And property in land is called real (royal, ultimately in the king, not actual, or of the true sort), while movable property is called personal, because it is attached to the individual, has once been separated from the soil, and has not been reattached with a very considerable degree of permanence. Thus a house built of stone or brick or wood, all the materials of which have been separated from land and reattached to it as firmly as their nature permits, is real property, but the mirrors and pictures fastened against the walls are not. Because of the ultimate royal interest in landed property, injury to real estate was formerly a higher offence than injury to the person or personality. But in a republic, where the liberty of the person is of a higher degree than in a monarchy, the sacredness of property goes outward from the person ; and that which is most inseparable from the man — his personal liberty and rights of payment for labor — is of the highest order, and that which is most connected with society, of the lowest. The sacredness of landed property is still maintained by conservatives, and it is only slowly encroached on by doctrines of fixtures and the like. Formerly, all attachments to land were real estate; but now, temporary attachments, unknown to the ancients, are called fixtures, and are held to be personal property. It may be more labor to detach some fixtures, such as elaborate gas chandeliers, or to remove a portable safe, than to detach some parts of the real estate, such as doors or windows ; yet a door in a house is a different sort of property from a safe or a chandelier ; and it is a far higher offence to break a door or window in order to steal, than to rob an open safe of millions. Singular as it may seem, there is a sort of property well known to all men, — by many hardly thought of as property at all, — of a higher nature than real estate, or fixtures, or any sort of movable property, — made property by a deeper principle, less destructible, more valuable, more compact, and in most instances so compact as to be absolutely invisible, intangible, inseparable from the person of its owner. And to this property we shall give the name of Ideal Property.
Before proceeding to the consideration of this, let us look, in the first instance, at the origin of the appropriation or sequestration, to one man, of that which in the early time belonged to no one, because it was the property of all.
A beneficent Creator arranged that man should have dominion over the earth, and gave it to him, with all its products and increments, to occupy, improve, and employ. And it is generally considered that the first occupant acquired a property in, or sequestered, what he occupied from the common stock, and individualized it, subject to the chances of reabsorption or change of individualization by superior force. Taking facts as they now exist, we shall see that the ultimate community of property is a permanent notion. The common burdens of society, the support of the poor, the protection of life and goods from foreign and domestic foes, legislation, and the transaction of all business which is the business of society, of the commonwealth, are at common charge, defrayed by taxation ; and in case of intestate and unheired decease, it is the commonwealth which inherits, be it king or state. Even in cases of testamentary disposition, this theory of community of property is silently, but almost universally, acknowledged by the rich, when they bequeath funds to public charities or foundations.
The universe is God’s universe, because He created it. And what a man calls his property is his, because he has made it, created it, out of the materials he had. In the matter of land, if he allows it to be unproductive, he loses its value gradually by paying its tax, or the land itself by having it sold for arrears of tax. He cannot be allowed to prevent creation. The patriarch Abraham reclaimed his well of Abimelech “ because he had made it.” The miner, by the laws of all countries where mining is a leading business, bolds title to a mine by doing work upon it,’and owns the ore he has raised, and the metal he smelts from it, by the same principle,— that he has created the metal from the dust, and brought to the sight and the knowledge of man that which did not before exist within his sight and knowledge.
Upon this notion of property in his creations rests the doctrine of mechanics-lien and, ultimately, the doctrine of liens of all sorts. And upon this also rests the curious distinction of the law, that if one simply change the form of another’s material, as to make shoes out of leather or boards out of logs, the property is not changed ; but if one change the substance, as to make bread out of wheat, or oil out of olives, or paint a picture on canvas, the property is changed.
Upon this principle of property in his creations rests the right of man to ideal property.
Without debating how this purest and clearest creation of man, the ideal, is originated, or attempting to classify it according to its nature and causes, let us only think of it in its manifestations, and classify our ideal property into four sorts, — reputation or goodwill, trade-mark, copies, and inventions. The consideration with which a man is regarded by his fellows has always been held to be one of his most sacred properties. In times of chivalry, it was for this, in the main, that noble life was risked and taken. But the cliques of chivalry advanced towards the societies of to-day and the society of the future ; and society, acting in accordance with general consent and right reason, with a clearer idea of its function and duty, has replaced, by better means and with surer results, the individual redress of wrongs, and forbidden the injured party to be at once complainant, tribunal, and sheriff, actor, judex, and lictor; has decreed that these functions shall be exercised by public servants acting under fixed rules ; and under the limits of these rules, and through its servants, has assumed the right of judging of the wrong done and the duty of punishing it; and this has originated the actions of libel and slander.
Good-will is exoteric, while reputation is esoteric. It is that business reputation which induces the public to concur for the profit of an individual. It is a concrete form of reputation, subject to commercial valuation ; and is, in fact, the reputation of an individual mingled with, and undistinguishable from, the business he does and the goods he deals in, and affecting the public to such an extent that they prefer him to others of the same calling.
Yet even good-will is essentially ideal, as will be seen by a consideration of the best existing illustration of if, — a newspaper property. The Boston Post or Advertiser, the New York Herald or Tribune, are hardly even names; for in thirty days’ time the name of the paper could be changed, and its readers would ask for it as well by the new name as the old. They do not sell because of their editors, for these often change, and but few readers know who the real writers and managers of them are. They are not a subscription list, for that is constantly changing ; and, in each case, the subscription list is largely composed of dealers who sell to a miscellaneous public. They are certainly not either offices or type or material or advertisements, or anything of the sort; for a complete annihilation of all the visible and tangible appendages and necessities of the newspaper business by fire could not destroy the property, since next day all the advertisements, the memoranda of which were lost, would come in ; a contract would be made to print again, and, on the morning after the loss, the paper would be published. The newspaper is good-will simply, and is an estate. The profit of a column in the London Times was thought a fit and large dowry for a lady of rank and fashion ; and many large fortunes have been made in this country from the business, as well as a comfortable support for hosts of honest and hard-working men.
A form of ideal property more concrete still, and in which the public interest is more directly concerned than in good-will, is the trade-mark. The line between good-will and trademark is as indefinite as that between two colors of the solar spectrum. They insensibly melt into each other. The habit of the travelling public to use a certain tavern is good-will. The special marks and devices of spool-cotton are trade-marks clearly. But the right to use a firm name in a given business is both. Consequently the decisions of the courts have frequently spoken of incidents of good-will as incidents of trade-marks, and vice versa. The law of trade-mark seems to be that the creator of it is secured in its exclusive use, because it assures the public from fraud or deception in their purchases by a designation and insurance of quality. And hence it has been held, that if the trade-mark attempts to describe, and describes falsely, the commodity to which it is attached, it is not entitled to protection ; and also that a trade-mark must have been used long enough to acquaint the public with the quality of goods it insures and designates, and must be still in use for such purpose at the time it is infringed.
We now come to property in copies. This phrase is chosen by design, instead of the word “ copyright; because the latter word has been complicated by statute, and denotes only a limited sort of copy property, established for the benefit of society for a term of years, for the purpose of avoiding complications which might arise were copyright without limit, as trade-mark or good-will may be. And as, In its own opinion at least, the public receives a larger reciprocal benefit in the matter of trade-mark and good-will than in the matter of intellectual publications, — in the one case the return being, as it were, æsthetic, in the other economic, —the copyright law of statute has been substituted for the perpetual ownership of copies of common right, arising from the creation of the author. It has only been within the last few years, indeed, that it has been finally determined that the statute security after publication, or multiplication and exposure for sale in open market, abolished the exclusive and enduring right of the author or his assigns to control, after such publication, the dissemination of his intellectual work. There still remains to him the exclusive right to control the time, place, and manner of publication ; the exclusive right to use in every manner which is not publication, or multiplication and exposure for sale, his production. If it be a play, he can license its representation to one, and forbid it to another. If it be a piece of music, he can authorize one body of musicians to play it in public, and refuse this right to others. If it be a lecture, he can deliver it where he please, and no one can take notes of it to print or to lecture from. If it be an engraving or picture, he can have it multiplied, and can dispose of the prints by gift as he please ; — and no one can print it for sale, or even describe it in a catalogue, without consent.
And it is the misfortune of the statute of copyright, that it has taken away the foreign author’s right to control after publication, in countries not his own, that which the Legislature of Massachusetts declared in 1783 was a property than which none was “more peculiarly a man’s own,” and the control of which was “a natural right of all men ” ; and has also led, as we have lately seen, artists to doubt whether they could protect themselves against the universal unauthorized publication of their pictures by chromo-lithography; a right which upon the doctrine of the law of publication as applied to lectures, plays, music, and etchings the artist must possess, until by his own consent copies of his picture were multiplied and sold in open market.
The rule of exclusive property in creation holds good with regard to invention. That arrangement of words which formulates thought is literary creation. It is entirely independent of the paper on which, or the ink in which, it is written, or the breath with which it is spoken; and it is very analogous to the arrangement of bits of metal of various forms and sizes, with which a dynamic idea is formulated in machinery. And, in each case, the act of creation is one of selection and formulation alone. The steam-engine is complete as a creation when it is drawn on paper ; the employment of diamonds for drill points is complete as a creation when conceived. The motor does not exist, it is true, nor the drill ; but from the drawing or the description a man of ordinary skill as a mechanic can make the machine.
Having seen, then, that the right to the enjoyment of all kinds of ideal property inheres in the originator or creator of it, and is a natural right of man, let us consider next to what means he must resort to compel the recognition of his rights by society.
Every man makes his own reputation. It results naturally from his action towards his fellow-man. So also with regard to the good-will of his business, and the designative authority of his trade-mark. And the judicial power — that branch of society whose duty it is to establish rights against society or the individual, or redress wrongs of society or the individual — will, on proper application, assert, against all assailants, an exclusive usufructory property in the person to the reputation he has established, the good-will he has built up, or the trade-mark to which he has given a designation and authority. The property inheres from its creation in the creator, and is defended by society upon complaint of infringement, so long as it be in use.
In the more embodied forms of ideal property, where spiritual force is formulated in sound or substance, there has been, for reasons satisfactory to society, and founded on general utility, a separation of rights into rights before publication, which are vested by creation and are protected whenever desired, and rights after publication, which, thotigh natural, are secured only by certain formalities, and by entering into a contract with society to abandon them to the public after a specified time. There would constantly arise in any attempt to assert rights after publication, without the statute, the complication that now arises at times when rights before publication are asserted. It would always be said, as in a recent case relative to the play of “ Our American Cousin,” that the plaintiff had abandoned his exclusive rights to the public, and the expense and tediousness of litigation would be increased. In the matter of invention, non-user and abandonment would always be insisted on to defeat the right of the inventor; and, in both instances, endeavors would be made to show that the idea had been conceived and formulated before by others. To avoid these difficulties, a registration of the formula or method of formulating has been prescribed, to be made in a solemn manner, in a public office ; in return for which a public officer gives a certificate of protection for a definite term; and it is only upon this proof of contract with the public that a court of law will act against violators of the secured right.
Of course, if the holder of the certificate is not the creator or his assign, he has no right to secure ; and so the certificate is waste paper. In most cases of copies, the certificate is called a copyright, and in case of invention a latent.
In ideal property of mixed æsthetic and economic character, such as designs, engravings, pictures, and the like, it may be a copyright or a patent, according as its æsthetic or economic character predominates. A map, however, which is purely economic, is, because of its method of making, a subject of copyright; and a statue, because it is more nearly classed as a design, like a carpet pattern or a cooking-stove casting, than as a book like a map or a chart, is subject of patent.
This registration and receipt of a certificate, in every country but America, is all that is required for inventions. Here, however, in the year 1836 the National Legislature decided that government should take upon itself to adjudicate in advance upon all inventions, and decide whether they were new and useful ; at the same time, however, refusing to make the patent issued conclusive evidence of a right to recover against an infringer. Why this rule was adopted, how it could have been imagined possible that a body of savans could be assembled in Washington, kept constantly informed of all that was going on in the world, with the knowledge of the past and present all at command, and judging competently as to novelty in fact and the utility of the novelty in practice, is inconceivable. In trials of patent cases, where the defence is lack of novelty, a devotion and investigation of months is often given by specialist experts; the reasoning faculties of the most highly educated reasoners, the bar, are taxed often for years to decide these questions ; and the amount of money expended in the preparation for a hearing in court on a simple question of novelty or utility is always large, and often reaches to tens, and at times hundreds, of thousands of dollars. The annual salary of one of the junior counsel in the great Indiarubber controversy was larger than that paid to the Attorney-General or Chief-Justice of the United States; and the fees of the leaders, for their occasional counsel and labor in court, were even more magnificent. Money enough has been expended in this country, in patent suits, to pay a great share of the national debt; and it is not probable that the system of preliminary examination at the Patent Office has decreased this sum at all. A great invention always meets its opponents and infringers ; the cost of overcoming prejudice and opposition is, of course, greater the more radical and advantageous the improvement or innovation; and it is the controversy attending infringement which induces the world to consider and adopt.
A valuable invention ought to be litigated to introduce it; and no invention not valuable is ever litigated. The preliminary examination is of no value as preventing litigation, and would be hurtful if it did.
Were it possible to obtain a complete knowledge of the work, published and unpublished, before the world and in the closet, of all students, a preliminary examination might insure novelty. It cannot do this ; and, of course, without experiment or a perfect knowledge of principles and a perfect reasoning faculty, utility cannot be insured.
What results, then, from the system of examination? A sort of pinchbeck assurance of novelty and utility, giving to the proprietor of an invention of comparatively small value a quasi government indorsement, influencing purchasers to better offers of price. It helps the charlatan and hinders the savant. It is a cheap repute and brassfarthing celebrity, that the United States boasts of, when it plumes itself on the progress of invention shown by the number of patents issued.
Invention is conception and formulation of a dynamic idea. To discover the identity of formulas in language requires a linguist, a philologist, a man of letters. To discover the identity of dynamic formulas requires an investigation the more profound, as the ability to estimate force and its applications and channels is more rare than the ability to consider facts and figures and words. The United States can never afford to pay in money a first-class salary for highly educated labor ; or, at any rate, it does not do so. A large steamboat line pays its superintending and constructing engineer ten thousand dollars a year or more. A first-class factory pays at the same rate for its manufacturing agent. Brains have a market value, and the United States tries to purchase cheap, and in many instances gets a low order of talent. The salaries of Patent Office examiners range from eighteen hundred to three thousand dollars. Now the duty done by examiners in the Patent Office is that of dynamic criticism. A literary reviewer’s duty is criticism of thought. No leading magazine could exist whose criticisms were simply verbal ; and no dynamic criticism is of value, that does not consider the dynamic idea, as well as its formula. Yet an examination of the list of published patents will show that the large majority of inventions patented are only dynamic formulas, and very many of them are only old formulas put into equivalent terms, — mere translations, as it were, into different dialects or languages.
It is a current notion that invention is the result of lucky hits. But it is no more proper to think of luck in invention than in literature. Organization or capacity is the only luck in either case. Education, generally of a special sort, has built the habit of thought which in the one case makes a successful book, in the other a successful machine. Invention is the literature of dynamics; and is as impossible without training as literary work. And the same habits of observation and ability for deductive reasoning are requisite as in the law or in medicine. A successful inventor is always, consciously or unconsciously, a logician. This training or education, this logical work, then, combined with the criticism which the inventor himself would consider necessary to make, or have made, by competent friends, upon his conception and its embodiment, in order that he might warrant his work, and secure the greatest profit from it, would be a far greater security than a government examination as at present. All great inventors and most of the lesser are specialists, and in their own lines consider rightly that they know more than the Patent Office. What we want, then, is a change in the patent law to make a patent evidence only of registration and of the inventor’s opinion regarding its novelty and utility, and to this extent a patent should make a prima facie case for the patentee. Next the patent should be issued without Government examination or guaranty, upon the relation of the inventor, and should so state. And, thirdly, the patentee in his specification should be allowed to state his invention, either by distinguishing what is old or asserting what is new, and not, as at present, simply asserting what is new. Fourthly, the patent should always be favorably construed for the patentee, quo res magis valeat quam pereat, and reissues should be abolished.
In this way invention would be assimilated more nearly with other ideal property ; the requirements of the public in registration would be attained; property of the highest order, that which advances the economies of the world, would be secured as readily as æsthetic property, or that which instructs or amuses the mind, and the public be as much or more benefited than at present.
There sometimes arises a controversy as to who is the true inventor. If two people study on the same subject, reason on the same facts, they must, if they study or reason correctly, come to similar conclusions. In formulating the conclusion, they will present it in different terms. One may say specific gravity instead of atomic weight, specific heat instead of insusceptibility to heat. One may prescribe an eccentric instead of a crank, a slotted yoke in lieu of a connecting-rod. In solving the problem of placing marine engines below the water-line, the Princeton had pendulum engines; the Barwon, steeple ; and almost every conceivable form of engine has since been used. Now, from what we have already seen with regard to other property than the ideal, the reasonable demand of the public for the use of the invention must be supplied ; and it an inventor simply formulates on paper, or conceives a notion without putting it to practical employment, he is not so well entitled to protection as the man who actually builds the working machine from his own conceptions, and runs it, and offers it for sale. The world has an interest in progress, and he who can help, and does not, will not be allowed to prevent the work and help of those who can and do. The law has hardly gone so far as this ; but, before it is settled on the basis of right reason, it will.
True liberty of the person within the law is the basis of our government. The ownership of body and soul is the foundation of liberty. The closer to the person the more sacred the property. Repute, good-will, trade-mark, property in copy, invention, all flow out from the person to the public; and the maintenance of their creator’s property in them, and his exclusive control over them by act and deed, is only less important to the establishment of that personal and individual royalty or kinghood of each member of society which forms the true foundation of a free government, than liberty of religious and intellectual thought and speech, and the right of each man to control his own manual labor.
Unless the end and aim of republican government is to make a society of kings and queens,—acknowledged as such in all countries ; held as natural equals everywhere by the highest classes, because of their grand humanity and essential spiritual force, — a republic is no better than a monarchy. Unless it succeeds in making a goodly number of them, it is not so good as an aristocracy ; and, if it do not progress upward, it will surely go downward. One step to the establishment of intelligent kinghood is established sanctity of ideal property, an education into the belief that the nearer the soul of man the better the property; and, the better the quality of property near his soul, the less earthly is his soul likely to be.
NOTE. — That which is here stated as the law of copy as distinct from copyright will probably be disputed by many lawyers, but it results inevitably from the dicta and decisions of both English and American courts. A résumé, more or less thorough, of the whole matter may be found in 4 House of Lords Cases, in an elaborate opinion of Judge Cadwallader of Pennsylvania, reported in g American Law Register, and in an opinion of Judge Hoar of Massachusetts, reported in the 15 Gray’s Reports. Cadwallader’s opinion contains absolutely all the learning on the subject, but it is not so compactly arranged as Hoar’s. The comedy of “ Our American Cousin ” is the subject-matter of most of the American decisions; and the research and acumen of the plaintiffs counsel in the cases, Mr. William D. Booth, of New York, have mainly produced a crystallization of the law of copy in America, so that to-day it is much more compact and definite here than in England.