International Copyright | Page 3

property known to the law of England, was Sir William Blackstone. The most important influence in support of the decision was exercised by the arguments of Justice Yates and Lord Camden. "This judgment," says Drone, "has continued to represent the law; but its soundness has been questioned by very high authorities." In 1851 Lord Campbell expressed his agreement with the views of Lord Mansfield. In 1854, Justice Coleridge said: "If there was one subject more than another upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give his judgment peculiar weight, it was this. I require no higher authority for a position which seems to me in itself reasonable and just."
In 1841 an important debate took place in Parliament upon this same issue. The right at common law of ownership in perpetuity was asserted by Sergeant Talfourd and Lord Mahon, and the opinion that copyright was the creation of statute law and should be limited to a term of years was defended by Macaulay.
The conclusions of the latter were accepted by the House, and the act of 1842, which is still in force, was the result. By this act the term of copyright was fixed at forty-two years, or if at the end of that time the author be still living, for the duration of his life.
I have referred to these discussions as to the nature of the authority through which the author's ownership exists or is created, as the question will be found to have an important bearing upon international copyright. In connection with this debate of 1842 was framed the famous petition of Thomas Hood, which, if it were not presented to Parliament, certainly deserved to be. It makes a fair presentment of the author's case, and is worth quoting:
"That your petitioner is the proprietor of certain copyrights which the law treats as copyhold, but which in justice and equity, should be his freeholds. He cannot conceive how 'Hood's Own,' without a change in the title-deeds as well as the title, can become 'Everybody's Own' hereafter.
"That your petitioner may burn or publish his manuscripts at his own option, and enjoys a right in and control over his own productions which no press, now or hereafter, can justly press out of him.
"That as a landed proprietor does not lose his right to his estate in perpetuity by throwing open his grounds for the convenience and gratification of the public, neither ought the property of an author in his works to be taken from him, unless all parks become commons.
"That your petitioner, having sundry snug little estates in view, would not object, after a term, to contribute his private share to a general scramble, provided the landed and moneyed interests, as well as the literary interest, were thrown into the heap; but that in the mean time, the fruits of his brain ought no more to be cast amongst the public than a Christian woman's apples or a Jewess' oranges.
"That cheap bread is as desirable and necessary as cheap books; but it hath not yet been thought just or expedient to ordain that, after a certain number of crops, all corn-fields shall become public property.
"That, whereas in other cases long possession is held to affirm a right to property, it is inconsistent and unjust that a mere lapse of twenty-eight or any other term of years should deprive an author at once of principal and interest in his own literary fund. To be robbed by Time is a sorry encouragement to write for Futurity!
"That a work which endures for many years must be of a sterling character, and ought to become national property; but at the expense of the public, or at any expense save that of the author or his descendants. It must be an ungrateful generation that, in its love of 'cheap copies,' can lose all regard for 'the dear originals.'
"That, whereas, your petitioner has sold sundry of his copyrights to certain publishers for a sum of money, he does not see how the public, which is only a larger firm, can justly acquire even a share in copyright, except by similar means--namely, by purchase or assignment. That the public having constituted itself by law the executor and legatee of the author, ought in justice, and according to practice in other cases, to take to his debts as well as his literary assets.
"That when your petitioner shall be dead and buried, he might with as much propriety and decency have his body snatched as his literary remains.
"That, by the present law, the wisest, virtuousest, discreetest, best of authors, is tardily rewarded, precisely as a vicious, seditious, or blasphemous writer is summarily punished--namely, by the forfeiture of his copyright.
"That, in case of infringement on his