on the subject, and we must recur for instruction to principles settled by the English decisions under the statute of

the whole nation was preparing to rise in a mass to expel the invaders. If the production of such a law, at such a crisis, be not resolvable into mere vanity and affectation, then indeed we may well say, with Mr. Hume, so inconsistent is human nature with itself, and so easy do gentle, pacific and generous sentiments ally both with the most heroic courage, and the fiercest barbarity!

There is a disposition in France to enlarge still further the term of an author's property in his works; and the commissioners appointed by the king to frame a new law on the subject, reported, in the summer of 1826, the draft of a law, in which they proposed to give to authors and artists of works of all kinds, property in their works for life, and to their legal representatives, for fifty years from their deaths: and copy-right in a work to be protected from piracy by representation, as well as piracy by publication. But it is understood that the French copy-right still rests upon the provisions of 1810, and that the proposed modifications of 1826, did not pass into a law. In Prussia, by an ordinance of the king, in June, 1837, copyright endures for the life of the author, and to his heirs for thirty years after his death. The rapid and piratical reprint in Belgium of French books as soon as they are out, and the consequent diffusion of them all over France, ruins the value of copy-right in France. There is the same evil as respects French Switzerland. Copy-right has a fair claim to international protection. In Germany, copy-right is perpetual; but it cannot be of much value, for there is no one uniform Germanic legislation on the subject, to protect copy-right among so many independent states, using a common language. It is said, however, that there is a reciprocal security of copy-right by treaty between Prussia and Austria; and by the act of union of the Germanic confederacy of 1815, the diet was directed to make uniform decrees for the protection of copy-right. By the Prussian ordinance of June, 1837, the copy-right law of that kingdom applies generally to works published in foreign states, provided the copy-right law of such state applies to and protects works published in the Prussian dominions. So, also, the English Statute of 1 and 2 Victoria, ch. 59, secures to authors, in certain cases, the international copy-right by allowing the queen in council to grant to authors of books, which shall thereafter be published in any foreign country to be specified in the order, the privilege of copy-right in the British dominions, for a term not exceeding that granted to British authors, upon entry and deposit of the work with the ware-house keeper of the company of stationers in London. The grant is to be upon the condition that British authors have the like protection in the foreign country. The case of Germany shows how important it was in this country, that the law of copy-right should rest on the broad basis of federal jurisdiction. By the law in Russia, as established in 1828, copy-right in books and translations

Anne, and which are, no doubt, essentially applicable to the rights of authors under the act of congress.

a

It was decided in Coleman v. Wathen, that the acting of a dramatic composition on the stage, was not a publication within the statute. The plaintiff had purchased from O'Keefe the copy-right of an entertainment called the Agreeable Surprise, and the defendant represented this piece upon the stage. The mere act of repeating such a performance from memory, was held to be no publication. On the other hand, to take down from the mouths of the actors, the words of a dramatic composition, which the author had occasionally suffered to be acted, but never printed or published, and to publish it from the notes so taken down, was deemed a breach of right; and the publication of the copy so taken down (being the farce entitled Love à la Mode,) was restrained by injunction. Since the case above mentioned, injunctions *379 have been granted in chancery, even *against the acting of a dramatic work without the consent of

is secured to an author for life, and to his heirs, after his death, for twentyfive years, and no such right can be sold for debt. In May, 1840, a treaty was entered into by the Sardinian and Austrian Lombardy governments, providing for the security of literary property within their respective dominions; and the king of the two Sicilies, the Grand Duke of Tuscany, and the Dukes of Lucca and Modena have acceded to the treaty. This is justly deemed a very auspicious event in the history of copy-right. The copy-right or right of property in works of science, literature and art, including pictures, statues, drawings, copperplates and lithographs, appearing within their respective Italian states, is secured to the author and his assigns for his life, and for thirty years after his death. If published after his death, it is protected for forty years from the time of publication. Every article of an Encyclopedia or periodical work, exceeding three printed sheets, is to be held a separate work, and all allowable extracts are to be confined to three printed pages of the original. In Holland and Belgium, the author is protected in his copy-right during his life and to his legal representatives during twenty years after his death.

5 Term Rep. 245.

b Macklin v. Richardson, Amb. Rep. 694.

the proprietor; and the narrow and unreasonable construction given to the claims of an author by the K. B., seems to have been very properly enlarged by the court of chancery. But as the lord chancellor, as late as 1822, took the opinion of the court of K. B. whether an action would lie for publicly acting, and representing for profit, a tragedy altered for the stage, without the consent of the owner of the copy-right; and as that opinion was against the action, it is probable that the rule in chancery will conform to that at law. In England there may be relief granted against the piratical publication for profit, of lectures delivered orally, and taken down in short hand by the pupils. But relief for such an injury does not seem to come within any of the provisions of the act of congress on the subject of copy-rights; and if it can be afforded at all, it must be upon the principles of the common law, under the state jurisdictions.d

If an author first publishes abroad, and does not use due diligence to publish in England, and another fairly publishes his work in England, it is held, that he cannot sue for a breach of copy-right. Whether the act of printing and publishing abroad makes the work publici juris, is not decided. It becomes so if the author does not promptly print and publish in England; and the statute of Anne had a reference to publications in England, and it was them only that it intended to protect.

a Morris v. Harris, and Morris v. Kelly, cited in Eden on Injunc. 198. b Murray v. Elliston, 5 Barnw. & Ald. 657.

• Abernethey v. Hutchinson, reported in Maugham on Literary Property, 147-154. The statute of 5 and 6 Wm. IV. c. 65, has since secured to oral lecturers, the sole liberty of printing and publishing their own compositions.

d In Clayton v. Stone, decided in the circuit court of the United States, at New-York, December, 1828, it was held, that a price current, published in a semi-weekly newspaper, was not a book, within the act of congress, because not work of science or learning, but of mere industry.

• Clementi v. Walker, 2 Barnw. & Cress. 861. In the case of Chappell v. Purday, 1845, 14 Meeson & W. 319, the Lord Ch. Baron upon a

An injunction to restrain the publication of un*380 published *manuscripts has been frequently granted in England: and on the ground, that the author had a property in an unpublished work independent of the statute.b Literary property is the ownership to which an author is entitled in the original manuscript of his literary work; and the identity of the work consists in the sentiment and language. It is clearly the author's exclusive right, inasmuch as it is created by his own labor and invention; and the reason and moral sense of mankind acquiesce in the solidity of the title. The act

review of the English authorities, declared the result to be, that if a foreign author, not having published abroad, first publishes in England, he may have the benefit of the English statutes of 21 J. I. and 54 G. 3. ; but that no case had decided, that if the author first published abroad, he can afterwards have the benefit of it by publishing in England. The decision in the case was, that a foreign author, residing abroad or the assignee of a foreign author who composes and publishes his work abroad, had not at common law, nor under the English statutes above mentioned, any copyright in England. The British statutes, said Ch. B. Pollock meant only to protect British subjects, and to foster and encourage British industry and

talent.

a Eden on Injunctions, 199, 200.

Duke of Queensbury v. Shebbeare, 2 Eden's Rep. 329. Southey v. Sherwood, 2 Merivale's Rep. 435. Macklin v. Richardson, Amb. Rep. 694. White v. Gerock, 2 Barnw. & Ald. 298.

• The identity of a literary composition, says Sir Wm. Blackstone, consists entirely in the sentiment and the language. The same conceptions, clothed in the same words, must necessarily be the same composition. 2 Blacks. Comm. 406. The copy-right applies to the peculiar expression of ideas which the author has used, and a work may be the subject of copyright, although the materials which compose it may be found in the works of other authors antecedently printed, provided the plan, the arrangement, and the combination of those materials, be original, and which must necessarily be the result of intellectual exertion and skill. It is of no consequence whether the invasion of the copy-right be a simple reprint, or by incorporating the whole, or a large portion thereof, in some larger work. The form in which the piracy is effected, is not material. Gray v. Russell, C. C. U. S. for Massachusetts, October, 1839. 1 Story's Rep. 11. Emerson v. Davies, 3 Story's Rep. 768. An equitable right to a copy right is equally within the protection of the law. Shadwell, V. Chancellor, in Bohn v. Bogue, Feb. 1846.

of congress says, that no person shall be entitled to the benefit of the act, unless he shall, before publication, record the book in the clerk's office of the district court, by depositing a printed copy of the title with the clerk; but there is another section of the act which declares, that if any person shall print or publish any manuscript, without the consent of the author or proprietor, (he being a citizen or resident of the United States,) he shall be responsible in damages by a special action on the case. The courts of the United States are authorized to grant injunctions to prevent the violation of the rights of authors and inventors, and to protect manuscripts from piratical publication. No length of time will authorize the publication of an author's original manuscript without his consent. In England the publication of private letters, forming a literary composition, has been restrained, on the ground of a joint property existing in the writer, as well as in the person to whom the letters were addressed. The letters of Pope, Swift, and others, and the letters of Lord Chesterfield, were prevented from a surreptitious and unauthorized publication by the process of injunction. Lord Ch. Hardwicke declared that the receiver of a private letter only acquires a qualified interest in it. The paper on which it is written may belong to him, but the composition does not; and he cannot publish it without the consent of the writer. In the case of Percival

v. *Phipps, the vice-chancellor held, that private *381 letters, having the character of literary composition, were within the spirit of the act protecting literary property; and that by sending a letter the writer did not give the receiver the right to publish it. But the court

Act of Congress, February 3d, 1831, sec. 9.

b Pope v. Curl, 2 Atk. Rep. 342. Thompson v. Stanhope, Amb. Rep. 737. In 1804, the court of sessions in Scotland, interdicted, at the instance of the children, the publication of the manuscript letters of the poet Burns. Cadell & Davis v. Stewart, cited in 1 Bell's Com. 116. n.

2 Ves. & Bea. 19.