Blackstone Tonson v collins queen whether copyright subsist in author as a  valuable property independent of the stat Ann refer to Jeffreys v Boosey hl c  action on the case for sell certain book call the spectator print without any  licence or consent from the sole and true proprietor of the copy thereof  videlicet the plaintiff to their injury and damage on not guilty plead the  jury find a special verdict to the follow effect that the spectator be a  original composition by natural bear subject resident in en gland videlicet Mr  Addison sir r steel c first publish ad that Jacob Tonson decease in purchase  of the author for a valuable consideration the say work to he and his assign  for ever that the plaintiff Jacob and Richard be his personal representative  and assign that old Jacob in his lifetime and the plaintiff since his death  have constant print and sell the saidwork as their property and now have hnd  always have have a sufficient number of book of the say work expose to sale at  a reasonable price that before the reign of queen whether it be usual to  purchase from author the perpetual copyright of their book and to assign the  same for valuable consideration and to j ettle they in family settlement for  the provision of wife and child that to secure the enjoyment of say copyright  the stationer company have make several bylaw particular one date August and  another date may therein set forth recite and recognize in the strong term the  copyright of author and their assign and prohibit any infraction of such right  by member of their company under certain pecuniary penalty that the say Jacob  Tonson decease comply with the condition require by the say company to  ascertain his right by register the say work as soon as he have purchase the  copy that the defendant without licence of the plaintiff and know the say copy  to have be purchase by say Jacob Tonson decease print publish and sell several  copy of the same in April and may whereby the plaintiff be Blackstone  damnified but whether the defendant be liable in law to answer the damage they  be ignorant but if the court shall adjudge he liable they find he guilty  damage if otherwise not guilty Wedderburn for the plaintiff the general  question will turn on the right of the plaintiff for sufficient act of the  defendant be find of infringe that right if exist which right if any must be a  right of property at commonlaw for this case be quite out or the statute of  queen whether a the right of author in general be now to be determine not of  any particular bookseller from the industry of the author a profit must arise  to somebody I contend it belong to the author and when I speak of the right of  property I mean in the profit of his book not in the sentiment style c I shall  endeavour to shew I that this right be as well find as any other right of  property ill that it be also recognize by the law of England I property accord  to Selden mark Claus be law act  to derive enjoyment from to make strange c  different original be assign of the right of properky all agree Blackstone er  p that its final cause be to promote the industry of individual property at  first continue only as long as possession then be extend for life then be  transmissible to representative last be refine into the multiplicity of right  we now experience accord to Grotius invention be one ground of property  occupancy another the present ground be invention while a work be in  manuscript the author have entire dominion over it court have interpose to  stop its publication by other man web and rise b forester c and walker d late  case of Lord clarendon manuscript in chancery e if instead of copy by clerk a  author print for the use of big friend he give they no right over the copy  proceed Blackstone one step far if he publish by subscription and no book be  deliver but to subscriber they have no right over the copy but only to use  they this lead we to a general publication there also every purchaser have a  riollit to use but nothing far the profit of the sale must go to somebody the  printer and other mechanic artist concern in the impression be pay for their  part the author who be the first mover ought in justice to be pay too this  doctrine be also consistent with public utility learning will be prejudice if  author may be strip of this independent provision for themselves it may be  object saint that this right be incapable of possessiop not more than advowson  and other incorporeal right be dly it be impossible to be guard law be the  guard of property in society not bolt and bar this very action be a proof that  it may be guard two this right be recognize by the law of England manuscript  be quite out of the case they can produce no profit therefore I shall begin  from the illtroduction f of print by Caxton in for dr Middleton have confute  the story of its prior importation at the kii g expense and herein shall rely  principal on amess typographical antiquity caxton book be all print at the  expense of private person pynson and d e Werdes the same there be then no  profit or but little arise front the impression about the encouragement arise  from sale begin to be sufficient without patronage since no book have be print  at the private expense of patron but now they begin to be print cum privilegi  ad to press upon solum these privilege do not contradict the idea of a prior  right of property they only support and protect it Henry this book on the  sacrament be print cum privilegi this be give the printer in big private right  as author another ancient book call the custom of London have no certain  author have therefore no privilege Blackstone about this time the crown begin  to exert its prerogative copyright g which show that a copyright may exist  there be no king printer by patent till the reign of Edward he grant one to  Grafton with some exception as of grammar which be then the property of  Barthelet printer to Henry be book compose at the king expense in Rym XV there  be a patent for print Greek and Hebrew this arise from the great expense of  purchase manuscript there can be no copyright in classia book therefore the  king seize they as good no one and thing derelict these patent be most of they  for bible c which be thing gain at the expense of the crown and therefore they  be the subject of copyright or for almanac c which be thing derelicts one  patent indeed go out of this rule that for print law book I can account for  the principle upon which that be find next come the power of bold which arise  from the religious dispute then prevalent this make printingbe look upon all  over Europe as a matter of state and proper to be regulate by law in Henry  publish a proclamation against print without licence fox in another order the  possessor of heretical book to burn they else to be account rebel and execute  by military law the same king erect the company of stationer professedly to  regulate the press his charter be confirm by queen Elizabeth in in a decree of  the star Chamber regulate the manijer of print and numberof press Ames in two  printer wolf and ware insist upon a right of print all book even where there  be copyrights exist stow title stationer company but commissioner appoint by  the crown will they to desist in another decree of the star Chamber that no  man shall print book whereof the property be in other accord to the allow  ordinance of the stationer company in several printer surrender certain  copyrights to the use of the poor of the company of stationer reserve a power  of print they at the low rate Ames this show that the Blackstone profit of  publican Blackstone er p cion be then usual assianed tottel have several  copyrights this severity of the star Chamber badvno good end another decree of  the star Chamber be make in model on that of queen Elizabeth during the ensue  usurpation the same tyrannical power be exert after the restoration the  statute of the pound car I be model on the star Chamber decree and state that  many have the right sole to print talk of the owner consent and give a penalty  in case of transgression to the owner of book and copy though all these  restriction be find on wrong principle of policy yet they be strong argument  of a generallyallowed preexist copyright as to the law patent the best account  of which be in the case of Ro per and Streeter king and in carter whatever  validity it may have it can have no effect on the present question it confine  the author of a law book to print with a particular person it do not take away  any copyright m few precedent to be meet with in the book ponder and Braddel  car lill Entr action upon the property of the pilgrim progress what case there  be be in report be all on patent right and therefore the law printer will only  print the argument on one side in I Mod property of almanac be say to be the  king first because derelict second as prerogative copy since they regulate the  feast of the church the expiration of the bold Act of car gvje rise to the  statute of queen whether n which recognize author as proprietor and give  particular remedy by a penal action it take away no antecedent right there be  a save clause of all antecedent right the word for fourteen year and no long  extend only to the accumulative remedy by penal action thire have be many case  in chancery where in injunction have be grant to restrain the sale of book in  prejudice to the proprietor of copyrights motte and Falkner before Talbot c oh  air and walker in person Talbot c p walthoe and walker in person Jekyll m r Q  the case of gay work in where Lord chancellor make Blackstone the injunction  perpetual which he can not have do mere under the Act Austen and cave in fine  this species of property be acknowledge by Act of Parliamentlong understand to  be vest and make the subject of family settlementsrecognized by the court of  chancery therefore we presume that a court of law will allow a action on the  case to lie for its violation Thurlow for the defendant the right contend for  if it exist must arise from eitberl privilege commonlaw property it suppose a  right to multiply copy in infinitum and to exclude other person from make  profit by multiplyiDg they some part of the verdict quite out of the case it  be of do consequence whether the author be natural bear subject or no because  this right of property if any be personal and may be acquire by alien of no  consequence now that they continue to publish it if there be any property they  may use it as they please it mig light have be a ingredient at the trial by  which to measure though damage the case have not be argue as a right arise  from privilege or flow from any Act of the state I shall therefore insist that  it do not exist natural that or flow from natural law h that where this kind  of property have be speak of by learned man or even by court of justice it  have reference to the extraordinary act of the state I public utility c point  one way as well as the other it be useful to the public that a monopoly shall  be abolish the establishment of copyright may tend to the advantage of author  not of the public when a perpetual monopoly be establish printer who purchase  copy will print in the Blackstone vile and the cheap manner which will make  the curious resort to foreign country the Act of parliament therefore wise  give a limit monopoly and not a perpetual property in the profit of  publication must presuppose property in the thing itself and the subject of  this property if any must be in the abstract ideal incorporeal composition now  the I love dearly of the composition as it lie in the author mind before it be  substantiate by reduce it into write have no one idea of property annex to it  in the Roman law there be a question concern specification long debate between  the Proculi and sabini if I write any carman c on the material whereon titius  have write his carman c before it belong to titius jure specificationis vide  Institut and puffendorf on the subject r who observe that this be not a  original method of acquire property but mere by contract see also Seld mare  Claus cap publication by subscription show that there be a method b which a  author may gain a profit for his work without resort to any copyright I insist  that Blackstone er p every subscriber have a right to do what he please with  the book he have so subscribe for it will be difficult to show the remedy of  such a right as this will the remedy lie against the keeper of circulate  library who buy one copy and hire it to a hundred to read?Or against a man who  lend it gratis both gratify the curiosity of other and stop the sale ol the  book it will be difficult to confine this mere to book and not extend it to  other invention a learned author t have endeavour at it and brangle it and  make miserable stuff of it he attempt a distinction between the labour of the  head and of the band but in some machine the labour of the bead be much great  than that of the hand sir Isaac Newton have no great property in his principia  than Lord orrery have in his machine if the labour of the head give the right  the property be just the same and it be possible that the invention Blackstone  of a mousetrap may cost its author the same labour of bead that the orrery do  its noble contriver so that this ground of property depend entire upon the  difference of head the right of property in book and machine be therefore the  same both have arise from ill the extraordinary act of the state the bold act  begin in England in and odd before that no mark appear of property in book  saint Ambrose de vitis father appear from Ames to have be licence by the  archbishop in Caius coll library at Cambridge there be many book in ms as well  as print publish under licence from privilege and print go hand in hand print  be suppose a flower of the crown indeed there be great argument for suppose  that print be import by the crown Lord Colie say so and Polydore Virgil the  same in the reign of Henry that be this as it will the privilege grant imply  no idea whatsoever of copyright in author they relate mere to printer as if in  nature of a patent for this new invenion of publication in licence grant to  LaurentiusTorrentinus to print the Pisan Code here be nothing new in the  invention of the book the encouragement be to the labour of print queen  Elizabeth grant a patent for the sole print of music another for map of  England another for Latin c all these patent be total foreign to any notion of  copyright they rather exclude it the reason of create this exclusive property  in printer be reason of state Darey and Allen more the privilege for sole  print be hold to be good for the peace and safety of the realm so in holland a  theological controversy once run so high that the state enjoin the disputant  to proceed no far lest they shall offend contra bomos more at length it be  provide in that no one shall print book without leave from the company of  stationer in Elizabeth among other complaint of monopoly by the house of  Commons a monopoly of the translation of Tacitus be complain of which show  very little regard to any Blackstone right of either author or translator the  stat throw S save to the crown the right of give privilege in matter of print  which show that the property be suppose to be derive from the crown the word  property in the statute of queen whether t arise frorn the word of the order  of the company of stationer in who be fond enough of assert such a right this  statute provide that if the author overlive fourteen year the property shall  return to he that be it shall no long remain in the printer accord to the  order of the stationer company suppose now the author have assign it for fifty  year I shall contend that the subjectmatter of this assignment be by the  statute make incapable of subsist for more than fourteen year by one clause in  the statute of queen whether v certain great officer be enable to regulate the  prince of book not only of those enter at stationer hall but of all other this  will not have be repeal have the legislature think a property attach in author  exclusive of the term in this statute for it will be extreme lie inconvenient  if no power of regulation be vest any where for then author may set what price  upon their work they please since no action can lie against they for abuse  their power this be the first action ever know to be bring upon this bead of  property for the declaration in lily entry be the mere invention of the author  and therefore ought not to be receive Littleton chapter knight service say No  action can be bring upon the statute of Merton for disparage a heir because  none ever have be bring u diversity of court say Writ of error will run to the  five port brook wonder say the like but in dyer because none ever have go it  be determine none ever shall go yearbook Henry a royal protection to the king  proctor at Rome this Blackstone er p allow because none ever grant before the  case in chancery be none of they opposite to this doctrine the injunction  grant be all of they since the statute of queen whether which clear vest a  absolute right in author c for fourteen year in the late case of Tonson and  walker about Newton edition of Blackstone Milton Lord chancellor do not  determine upon the general right of property but upon the statute for dr  Newton note be clear within the term however a injunction in chancery be not  conclusive to the right it be not that solemn adjudication which the law  require Wedderburn in reply the jurisdiction of the court of chancery to grant  injunction in these case well support by the find of the jury that this be a  customary property the profit of author c must arise from a extensive sale it  be therefore their interest to publish book in the best and the cheap manner  but if they do not this be only argumentum ab abusing if this right be abuse  you may lie restriction upon it as be do that stat Ann rc S though that clause  be now repeal by Geo c S book can be compare to mechanical invention with any  propriety for those be capable of improvement at every copy make book be usual  reprint verbatim we allow that reason of state give birth to exclusive patent  but deny that such patent give original to or interfere with copyrights patent  be chief in favour of printer be a new art which tend to diffuse knowledge  Lealtied man be original reward by the emolument they receive from the resort  of pupil when their learning come to be diffuse by book society give they this  recompense instead of it which we hope the court will protect Lord Mansfield  C J Let this case stand over for far argument there be no doubt but the  violation of that property which may be the subject of a injunction in  chancery will maintain a action on the case in this court because every  injunction proceed upon the supposition of a legal property there be two sort  of case in the court of chancery which I desfte may be look into saint where  there have be no print or publication at all ten the statute of queen whether  seem evident to distinguish this Blackstone from other case in the case of the  edition of pope letter to swa the question be whether the property be not  transfer to the correspondent Lord Hardwicke think not and that the writer be  still the p etor and therefore grant a injunction against the assignee of  swift d Rperrie the term give by Act of parliament have be clear expire I  remember no case where the merit have be full argue and the injunction make  perpetual at the hear of the cause therefore they be not quite decisive and  yet they have great authority they at least answer the objection against the  disuse of these action since the party injure have follow their remedy in  another court jn Tonson and walker Lord Hardwicke incline to the property but  send it to law it be there twice argue but never certify the reason why be  lean to the property be because in all prerogative cause of this kind the  counsel for the crown have endeavour right or wrong to put the merit on a  suppose property in the crown and it seem to be universal acknowledge that  such a property may be subsist let the judge be attend with copy of the case  in chancery SC post a a author have a property in a unpublished work  independent of the statute Southey v Sherwood Meriy macklin v Richardson Ambl  b cite post c forester v Waller cite Eden d Tonson v walker burr e duke of  Queensberry v shebbeare Eden f see a account of the introduction of print into  this country in burr g see sol Geri York argument ante and note h but see post  I c see ante I will king cite post case of roll abridgment carter Bac Abr p SC  cite ante SC cite Mod m see basket v Cunningham post n post will t S c S  concern monopoly oh cite post r post p ib ib t bishop Warburton Blackstone er  p t Ann c but now by stat g c S it be enact that from and after the pass  thereof June the author of any book compose and not print and publish or which  shall thereafter be compose and be print and publish and his assignee or  assign shall have the sole liberty of print and reprint such book for  twentyeight year from the day of first publish the same and also if the author  shall be live at the end of that period for the residue of his natural life  and by S that if though author of any book which shall not have be publish  fourteen year at the time of pass the Act shall be then live and if he shall  die before the expiration of the fourteen year then the personal  representative or his assignee shall have the sole right of print and publish  for the further term of fourteen year of to the expiration of the first  fourteen year and by S if the author of any book then publish shall be live at  the end of twenty eight year after the first publication he shall for the  remainder of his life have the sole right of print and publish the same as to  the construction of this statute see post n d v S post wonder cinque port pl u    Litt S a ten ante n a