This article was originally published January 21,1837 as a response to the popular push among the New York intelligentsia for an international copyright law.
The whole question of the propriety of an international copyright law, or a copyright law at all, resolves itself, we think, into the enquiry whether such a regulation would promote the greatest good of the greatest number. This is the principle which we conceive constitutes the basis of the most important rights of property. They are artificial rights, not rights of nature. They are created by laws, not merely confirmed by them. This is obviously the case with regard to that species of property which the political institutions of all civilized countries regard with peculiar deference, and secure with particular care, and to which the distinctive appellation of real estate is given.
The right of property in land, like the right to breathe the vital air of heaven, is, by nature, common to all mankind; and the only just foundation of individual and peculiar rights is furnished by the law of the land. Locke, who goes as far as any writer in tracing the right of property to inherent causes existing anterior to political institutions, does not maintain that any thing gives to an individual a distinct and exclusive right to land, except in as far as by occupying it and mixing his labour with it, it becomes his own in such a sense that you cannot take it away without also taking the fruits of his labour, which, he contends, are his own by nature. Paley, on the contrary, in his book on Relative Duties, considers the law of the land the only real foundation of territorial property.
If the principle of copyright were wholly done away, the business of authorship would readily accommodate itself to the change of circumstances.
But let us, in conformity with the opinions of Locke and other accredited writers, concede that men have a natural right of property in the productions of their own industry and skill; that the mechanic, for example, has an exclusive right to the article he manufactures; the fisherman to the fish he catches; and the fowler to the birds he shoots. To the same extent the author has an exclusive natural right of property in the book he composes; that is, he has a natural right to the manuscript, so long as he chooses to retain it to himself.
The process by which the mechanic fabricates a particular article is his property, so long as he keeps it secret. The peculiar arts of the fisherman and fowler are their property, in the same way, until they communicate them. And the thoughts of the author are his property, equally, until he publishes them to the world. In all these cases, alike, so far as natural rights are concerned, they then become common property. Every body is at liberty to imitate the article manufactured by the mechanic; to practice the artifices of the fisher and fowler; and to copy the book of the author. Any further exclusive or peculiar property in them has no other foundation than the law.
The right of exclusive property, of the exclusive use and benefit of the fruits of one’s own labour, is the great and secure foundation of social order and happiness. Without it, man would never rise above a semi-barbarous condition; and in those communities where it is most securely guarded, we invariably find the highest degree of moral and intellectual refinement, the greatest general prosperity, and the most advanced condition of all the arts which sustain and embellish life. But we would have it understood, in passing, that this important and fundamental right is violated as fatally by unequal laws, by laws which give peculiar facilities for the acquisition of wealth to the few, and deny them to the many, as by those more obviously arbitrary edicts, which directly and openly deprive the labourer of his reward. The true security of the right of property consists in equal legislation.
If we are correct in the position assumed, that the exclusive natural right of an author to his production, like that of a mechanic to the fashion or device of his table or chair, extends no further than to his immediate copy, the question for society then to determine is, whether it is proper to create and guard this right by legal enactments; and the decision of it, in our view of the subject, should rest solely on the consideration of the effect it would have on the interests of the great mass of mankind, or, to repeat Bentham’s phrase, it should be decided according to the principle of “the greatest good of the greatest number.” It is entirely within the competency of the law to make a literary production property, either absolutely and in perpetuity, or in a qualified sense, and, for a limited period of time. If government should choose to do neither, but leave the published book as free to be copied, as a new device in cutlery, a new style in dress, the author would be without reasonable ground of complaint, since he entered into the vocation without the prospect of any other advantage, than what necessarily and inalienably belongs to the opportunity of the first use of the fruits of his labours.
We are the friend of cheap literature, for it is the friend of humanity.
But if the law undertakes to establish a certain kind of property in the productions of authorship, “in the fruits of intellectual exertion,” to use the language of our correspondent, it must fix the limit somewhere; and those intellectual labourers excluded from the vineyard, (and there would necessarily be many such) would then have some reason to complain of partial legislation.
The farmer who, by a long and careful study of the processes of nature, discovers an improved method of tillage and culture, by which he can make his field yield a harvest of twofold abundance, ought surely not to be excluded from the category of those who benefit mankind by the fruits of intellectual exertion; yet the neighbouring farmer, who ploughs the adjoining field, copies his mode of tillage, and no one ever thinks of instituting a law to give the first a right of property, and secure to him the exclusive advantages of his discovery. The artist who spends days and nights of patient intellectual toil in devising tasteful and symmetrical patterns for the lace worker and silk weaver, sees the fruits of his intellectual labour copied as soon as they are exhibited; and does not dream of asking the security and advantage of any peculiar legal rights. The natural advantage of the inventor, that he is first in the market, presents a sufficient stimulus to exertion, and secures, in most cases, an adequate reward.
If the principle of copyright were wholly done away, the business of authorship, we are inclined to think, would readily accommodate itself to the change of circumstances, and would be more extensively pursued, and with more advantage to all concerned than is the case at present. It is very