The Statute of July 8, 1870, already referred to in the preceding chapter on the Law of Patents, in the sections 85 to 110, inclusive, regulates the law of copyrights.

The subjects of copyright may be a book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph, or negative thereof, or a painting, drawing, chromo, statute, statuary, and of models and designs intended to be perfected as works of the fine arts. The copyright may be taken by any one who is a citizen of the United States, or a resident therein, and the author, inventor, designer, or proprietor of the thing to be copyrighted.

It is obvious that the foundation on which this law stands, is very similar to that of the law of patents. The State secures to the holder the exclusive right to publish a certain work for a certain time. It gains by this an important and most operative stimulus to literary and artistic invention and labor, in all directions. If there are those who think, that, if the motive of pecuniary profit were entirely withdrawn from all intellectual labor, as in earlier ages, the results of this labor would greatly improve in quality, all must admit that they would be much diminished in quantity. Nor does there seem to be any sufficient reason why the product of this labor should not be adequately paid for in money, as all other labor is, nor any effectual way of securing this except by the law of copyright. It is certain that, until publication, every man has, at common law, the exclusive control of his literary productions, and therefore the exclusive right to their first publication. (a)

(a) Yates, J., in Millar v. Taylor, 4 Burr. 2878, says: "Ideas are free. But while the author confines them to his study, they are like birds in a cage, which none but he can have a right to let fly; for, till he thinks proper to emancipate them, they are under his own dominion. It is certain every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether ad ad * The belief that a man has naturally and always a right to what have been called "the children of his brain," led a few years ago, to a determined effort, by authors and publishers, to establish at common law a permanent and exclusive right to their books. And this effort found some sympathy even in courts. (6) he will make them public, or commit them only to the sight of his friends. In that state, the manuscript is in every sense his peculiar property ; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property. And as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication; and whoever deprives him of that priority, is guilty of a manifest wrong, and the court have a right to stop it." In the case of the Duke of Queensbury v. Shebbeare, 2 Eden, 320, an injunction was granted against printing the second part of "Lord Clarendon's History," by one to whom the manuscript had been lent And in Webb v. Rose, an injunction was granted against the publication of the plaintiff's "Precedents of Conveyancing," which had been stolen from his chambers and printed. See also Pope v. Carl, 2 Atk. 342; Macklin v. Richardson, Amb. 694; Prince Albert v. Strange, 1 Hall. & Tw. 1; s. c. McN. & Gor. 26; Turner v. Robinson, 10 It. Ch. R. 510; Gee v. Pritthard, 2 Swanst. 402; Touson v. Walker, 8 Swanst. 673; Little v. Hall, 18 How. 170; Bartlette v. Crittenden, 4 McLean, 300; Woolsey v. Judd, 4 Duer, 379. This right is recognized by a provision in our copyright act, § 102.

(b) Whether, after publication, an author has an exclusive copyright at common law, was long a disputed question, though now apparently settled in the negative. It was very thoroughly discussed by the Court of King's Bench, in the celebrated case of Millar v. Taylor, 4 Burr. 2303, where Lord Mansfield and two of the other judges affirmed the right, Judge Yates alone dissenting. They also held, that this copyright was not affected by the statute of Anne regulating the matter of copyright. Soon after, this opinion was overruled in the House of Lords, in the equally celebrated case of Donaldson v. Beckett, 4 Burr. 2408. 2 Bro. Parl. Cas. 129. In this case the following questions were propounded to the Judges: "First. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent?" This question they decided in the affirmative, by a majority of eight to three. " Second. If the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition? And might any person afterwards reprint and sell, for his own benefit, such book or literary composition, against the will of the author?" This was decided in the negative, by a majority of seven to four. "Third. If such action would have lain at common law, is it taken away by the Statute 8 Anne? And is an author, by said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms and conditions prescribed thereby?" This was answered in the affirmative, six to five. This case therefore decided that, although the author had a copyright in his works at common law, even after publication, the statute had deprived him of that right, and substituted a limited privilege in its place. Subsequently, in Beckford v. Hood, 7 T. R. 620, Lord Kenyan expressed a decided opinion against the existence of a common-law copyright, and Lord Ellenborough inclined to the same opinion in Cambridge University v. Bryer, 16 East, 317. The question has recently undergone another careful consideration, in the case of Jefferys v. Boosey, 4 H. L. C. 816, where the majority of the judges repudiated the doctrine of a common-law copyright, and affirmed the position that the rights of authors depend entirely upon the statute. In the case of Wheaton v. Peters, 8 Pet. 593, a majority of the Supreme Court of the United States were of opinion, that the common law of England did not recognize an author's copyright in his works after publication; but that, whether this was so or not, an author in this country has no exclusive property in his published works, except as given by the Constitution of the United States, and the laws of Congress made in pursuance thereof. See also, Stevens v. Gladding, 17 How. 454; Clayton v. Stone, 2 Paine, 382; Stowe v. Thomas, 2 Wall. Jr. 647; Dudley v. Mayhew, 3 Comst 12.