“What property could be more emphatically a man’s own than his literary works?”

I’ve been poring over several older treatises on copyright law, and one in particular has resonated with me: The Law of Copyright in Works of Literature and Art, by Walter Arthur Copinger. Published in 1870, Copinger’s work has been described by one modern scholar as a “landmark treatise on the law of copyright, establishing a body of work that still has great relevance for professionals and academics today.” And thanks to Google Books, the entire text of this now-public domain masterpiece is freely available.

Like me, Copinger unabashedly subscribes to the natural rights theory of copyright law, following in the footsteps of seventeenth- and eighteenth-century greats such as Locke, Mansfield, and Blackstone. In his treatise, Copinger situates the foundation of copyright law upon the natural law mode of acquisition of occupancy:

The right of an author to the productions of his mental exertions may be classed among the species of property by occupancy; being founded on labour and invention.

Consistent with this natural law vision, Copinger posits “that every man has the right at common law to the first publication of his own manuscript.” And upon publication, he continues, “no more passes to the public than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains.” Importantly, though, Copinger notes that the “property in the composition does not pass; for those things which only peculiarly and appropriately are [the author’s], must remain his till he agrees or consents to part with them by compact or donation.” And according to Copinger, “[n]o man could possibly have a right to make a profit by the publication of the works of another, without the author’s consent,” since that “would be converting to one’s own emolument the fruits of another’s labour.”

Copinger takes issue with the suggestion that copyright is not property:

What property could be more emphatically a man’s own than his literary works? Is the property in any article or substance accruing to him by reason of his own mechanical labour denied him? Is the labour of his mind less arduous, less worthy of the protection of the law?

And, echoing a dispute that still persists to this day, Copinger presents the copyright-as-property debate:

When the right could not be combatted on the ground of common sense or simple reason, the lawyers were forced to fly to what Lord Coke styles “summa ratio,” or the legal reason, and they contended that from the very nature of literary productions no property in them could exist. For, said they, to claim a property in anything it is necessary that it should have certain qualities; it should be of a corporeal substance, be capable of occupancy or possession, it should have distinguishable proprietary marks, and be a subject of sole and exclusive enjoyment. Now, none of these indispensable characteristics were possessed by a literary production.

To this it was replied, that such definition of property was too narrow and confined; (for the rules attending property must ever keep pace with its increase and expansibility, and must be adapted to every particular condition;) that a distinguishable existence in the thing claimed as property, and an actual value in such thing to the true owner, are its essentials; and that the best rule of reason and justice seemed to be, to assign to everything capable of possession a legal and determinate owner.

Thus, in Copinger’s view, those who claim that copyright is not property simply have an attenuated understanding of the concept of property. I think this certainly is true, even to this day. And as Copinger points out, once an idea has been fixed in a tangible expression, it is no longer “in the mind alone,” and it readily becomes the subject of proprietary acquisition:

When however any material has embodied those ideas, then the ideas, through that corporeity, can be recognised as a species of property by the common law. The claim is not to ideas, but to the order of words, and this order has a marked identity and a permanent endurance.

Copinger’s position on copyright term is particularly interesting—and it’s remarkably similar to my own. On the one hand, he praises the “best endeavours” and “most eloquent strains” of “Mr. Serjeant Talfourd,” who successfully sought the extension of copyright protection past an author’s lifetime with the following argument:

There is something peculiarly unjust in bounding the term of an author’s property by his natural life, if he should survive so short a period as twenty-eight years. It denies to age and experience the probable reward it permits to youth—to youth, sufficiently full of hope and joys to slight its promises. It gives a bounty to haste, and informs the laborious student, who would wear away his strength to complete some work which ‘the world will not willingly let die.’ that the more of his life he devotes to its perfection, the more limited shall be his interest in its fruits.

It stops the progress of remuneration at the moment it is most needed; and when the benignity of nature would extract from her last calamity a means of support and comfort to the survivors—at the moment when his name is invested with the solemn interest of the grave—when his eccentricities or frailties excite a smile or a shrug no longer—when the last seal is set upon his earthly course, and his works assume their place among the classics of his country—your law declares that his works shall become your property, and you requite him by seizing the patrimony of his children.

And then, in the passage that resonates with me the most, Copinger explains why he does not support a perpetual copyright term—even though he’s a natural rights theorist. Instead, he argues that such a perpetual term would ultimately impede progress:

Many have agitated for the establishment of a perpetual copyright, together with a bestowal upon authors of the exclusive power of abridging, dramatizing, and metamorphosing their own works at will, turning prose into poetry, romances into plays, and vice versa. The claim of authors resulting from the principles of natural right involves the perpetual duration of the property. But in order that such property should be of value, it is necessary that society should interfere actively for its protection. It may either interfere by the enactment of penalties, which, in order to be effectual, must be severe; or it may interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favour of an exclusive right, further than it finds such a course beneficial to its own interests, in the broadest sense of the term.

It is argued, however, that the concessionary allowance of a perpetuity in copyright would encourage publication, and tend greatly to the promotion and furtherance of science and literature. But, admitting that learning and science should be encouraged, that everything tending or conducible to the advancement of knowledge, and consequently to the happiness of the community, should be favoured and tenderly cherished by the legislature, and that the labour of every individual should be properly recompensed, it does not follow that the same or a similar end might not be obtained by different or less objectionable means.

If the individual is a gainer by the existence of copyright, society is a loser. The absurdity of the assertion that authors are alone inclined to make known their works from the specific benefit arising from an absolute perpetual monopoly, is manifest. What a studied indignity to those who have devoted their lives to the advancement of every science that adorns the annals of literature! Ambition cannot be deemed a cipher; benevolence will ever exist in the heart of man, and they at least act as powerfully by way of conducives to the communication of knowledge between man and man, as avaricious or mercenary motives.

A perpetuity in copyright would have the effect of impeding the progress of literature and science, and among other serious inconveniences we will mention one. The text of an author, after two or three generations, if the property be retained so long by his descendants, would belong to so many claimants, that endless disputes would arise as to the right to publish, which in all probability might prevent the publication altogether. . . . Though we could not, therefore, uphold a perpetual copyright, believing that its existence would by no means tend to the spread or encouragement of literature, we would willingly offer our support to the extension of the period during which literary copyright is at present protected.

It’s refreshing to see my own beliefs reflected in such robust terms almost a century-and-a-half ago. While the natural rights vision of copyright law is certainly less popular today, especially in academia, it’s comforting to know that one of the leading treatises of the late nineteenth-century wholeheartedly adopts views so similar to my own.

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© 2014 Devlin Hartline. Licensed under the Law Theories Public License 1.0.