Fourth. That copyright is a monopoly of limited duration, created and wholly regulated by the legislature, and that an author has therefore no other title to his published works than that conferred by statute.

The discussion involves the inquiry whether literary property is based upon and governed by the same universal principles that regulate all property, and is, therefore, perpetual; or whether it is sui generis,—a monopoly resting upon a bed of sand, which may be swept away by any legislature.

The true solution of this problem can be reached only by an examination of the fundamental principles upon which the right of property rests. The questions to be considered are these:I. Has an author, by the common law, a property in his intellectual productions?

II. Is such property lost by publication?

III. May it rightfully be taken from the owner by statute?

All the great writers on natural law agree in placing the origin of property in preoccupancy. They differ in the grounds and reasons advanced in support of this theory. Grotius and Pufendorf hold that this right is based upon social compact; that there must have been a previous implied assent, or tacit agreement that the first occupant should become the owner. Barbeyrac, Titius, Locke, Blackstone, and others maintain that such tacit agreement is not necessary, and that the right was created by the act of occupancy alone. All, however, reach the same conclusion that in that early age, when all land was common, each person became entitled to hold to his own exclusive use that which he first occupied. This act vested in one man a right which was respected by his fellows, and gave birth to ownership. And this was the theory of the Roman jurisconsults.2

Now what was such preoccupancy but first possession? And when is first possession purer and more frequent than in creation, -in production? In other words, the creator is the first possessor of that which he creates. Here, then, we find in labor the origin of the right to property. Occupancy implies lab›r. It implied labor in the beginning; for to take and retain possession of a portion of the common land were impossible without bodily

1 Grotius de Jure B. & P. lib. ii. c. 2 and 3; Pufendorf de Jure Nat. et Gent. lib. iv. c. 4, 6; Locke, Civil Government, c. 5; Bla. Com. ii. c. 1.

exertion. Still more was physical effort required in later times, when occupancy represented distance overcome, toils endured, and dangers passed. Indeed, Locke, Barbeyrac, Titius, and others expressly hold that the principle of occupancy is based upon labor.1 In commenting upon the statement of Paullus, the Roman lawyer, that creation which implies labor-is an original mode of acquiring property, Grotius thought that this, instead of being classed as a distinct and peculiar mode of acquisition, should be referred to that of occupancy.2

Locke's great theory that labor is the origin of the right of property is thus explained in his own language:

66

Though the earth and all inferior creatures be common to all men, every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labor with and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

"Thus this law of reason makes the deer that Indian's who hath killed it; it is allowed to be his goods who hath bestowed his labor upon it; though before it was the common right of every one. And amongst those who are counted the civilized part of mankind, who have made and multiplied positive laws to determine property, this original law of nature, for the beginning of property, in what was before common, still takes place; and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what ambergris any one takes up here, is, by the labor that removes it out of that common state nature left it in, made his property who takes that pains about it. And even amongst us, the hare that any one is hunting is thought his who pursues her during the chase; for being a beast that is still looked upon as common and no man's private possession, whoever has employed so much abor about any of that kind, as to find and pursue her, has thereby removed her from the state of nature, wherein she was common, and hath begun a property." &

1 Barbeyr. Puf. lib. iv. c. 4, § 4, note 4; Locke, Civil Government, c. 5; Bla. Com. ii. c. 1.

2 Lib. ii. c. 3.

Civil Government, c. 5.

We find, then, the principle of labor expressly advanced by many of the public jurists to explain the origin of property, not denied by others, and in harmony with the theories of all. And this has continued a fundamental principle, both in theory and practice, throughout the entire history of property. The principle is as old as property itself, that what a man creates by his own labor, out of his own materials, is his to enjoy to the exclusion of all others. It is based, not only on natural right, but also on the necessities of society, being essential to the promotion of industry. Before the birth of written law, Abraham maintained his right to a well because he had "digged this well; "1 and more than a century later, his son Isaac successfully claimed it as his father's property. Even the savage claims for himself the game which he has secured by his own toil, the fishes which he has caught, the trees which he has felled, and the acorns which he has picked up under the oak. As Locke says, "The grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labor that was mine removing them out of that common state they were in, hath fixed my property in them." And where the science of law has attained its highest state, there is no purer, stronger, better title to property than that acquired by production. To him belongs the harvest whose toil has produced it; to him the fruit who has planted the tree. This is the natural mode of acquiring property, while succession, purchase, gift, are derivative. It is not only the oldest, but also the most meritorious; because what is held by this title must have been earned by the sweat of the brow, while acquisition by purchase, gift, or inheritance is not inconsistent with idleness. "The most natural claim to a thing," says Rutherford, "seems to arise from our having made it; for no one appears to have so peculiar a right in it as he who has been the immediate cause of its existence." 4

Ownership, then, is created by production, and the producer becomes the owner. This principle is general, and covers all productions, the whole field of labor. It cannot be applied to

the produce of one kind of labor and withheld from that of another. It matters not whether the labor be of the body or of the mind; the yield of both comes under the same grand principle of property, which recognizes no distinction between the poet and the peasant in the ownership of their productions. No theory, no explanation, no consideration, has been advanced by the great writers to account for the inviolability of property in the produce of bodily labor which does not apply with equal force and directness to property in the fruits of intellectual industry. No vital qualities have been assigned to one which are not equally inherent in the other. All the attributes and conditions marked out by Pufendorf as essential to the constitution of property are found in intellectual productions. In other words, neither in its origin nor in its essential qualities is literary property sui generis; but is simply a branch, a division, a species, of general property. It is subject to all the fundamental rules governing the acquisition, possession, and transmission of property. It is acquired by labor, succession, gift, purchase; transmitted by sale, donation, bequest; lost by abandonment. It may be injured, trespassed upon, stolen. It may be borrowed and lent, mortgaged and pawned. It may be the subject of contract, bargain, trade, fraud. Published, it may be seized by creditors. Disraeli says you may fill warehouses and freight ships with it.

That there is an important dividing line between property in the results of manual and of intellectual labor is clear. The former is corporeal and material; the latter without material substance. The property of the author is not in the material which preserves his work, and is the means of its communication to others, but in the ideas, conceptions, sentiments, thoughts, which constitute an intellectual creation, and which are communicated to the mind. of another by spoken or written words. The property is in what is conveyed by the words of the manuscript, or the printed page, and not in the paper or parchment; in the beauty and nature expressed by colors and not in the canvas; in the life breathed into the statue and not in the marble or bronze. It is an incorporeal, invisible, intangible creation of the mind, fixed in form and communicated to others by language. Incorporeal itself, it is attached to the corporeal.

It has been maintained that material substance is an essential

1 Lib. iv.

attribute of property, that nothing can be the subject of ownership which is not corporeal. This is an error which has probably arisen from the assumption that materiality is essential to the determination of the identity of a thing. It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined, so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. The spirit both of natural and artificial law is to assign to every thing capable of ownership a legal and determinate owner. The very meaning of the word property in its legal sense is "that which is peculiar or proper to any person; that which belongs exclusively to one." The first meaning of the word from which it is derived - proprius is" one's own." Property in what is written on paper, as wholly distinct from that in the paper itself, is expressly conceded by Pufendorf who denounces the doctrine of the Roman lawyers, that when one man wrote any thing on the parchment of another the writing belonged to the owner of the blank materials, on the ground that "the writing is of more worth than the paper.

Whatever, then, having the other requisites of property can be identified becomes a proper subject of ownership. This attribute is found no less marked in intellectual than in manual productions. The identity and ownership of the former can be determined as easily and precisely as those of the latter. There is no more difficulty in drawing the meum and tuum line between the literary works of Tennyson and those of Emerson than between their bonds or lands. And yet the corner-stone of the doctrine that there can be no property, except by statute, in intellectual productions, was laid a century ago by an English judge on the error that such productions, being incorporeal, were "not capable of distinguishable proprietary marks," and, therefore, could not be the subject of property, since ownership could not be determined.2

This fallacy is so apparent as not to need serious consideration n; and yet the authority of Judge Yates is constantly cited by those who argue against the perpetuity of literary property. Indeed, so complete is the identity of literary property, and so well

1 Lib. iv. c. 7, § 7.

2 Yates J., in Millar v. Taylor, 4 Burr. 2354 et seq.