Lord Kames Explains Why Copyright Is Not Property... In 1773

from the a-look-back dept

Mockingbird writes "I've posted the full text of Lord Kames's opinion in the important Scottish Sessions case of Hinton v. Donaldson from 1773. This was the case that rejected for Scotland, by a vote of 11-to-1, the theory of "common law copyright", that authors (meaning, in practice, publishers) had a perpetual copyright, at common law, of their writings. It was followed a few months later by the English House of Lords's decision in Donaldson v. Beckett, in which the English Lords rejected just as forcefully the claim that authors had perpetual copyright under the common law of England.

Of the twelve Sessions Lords who decided the case, ten issued opinions. Lord Kames's is one of the longer ones, and one of the most famous. Kames builds his case on principles of common law, property law, and commercial law, and finds the claim of "common law copyright" to be inconsistent with the principles of all these areas of law:
this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures..... [the] booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. "

Filed Under: copyright, lord kames, property, scotland


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  1. identicon
    Bob, 10 Sep 2009 @ 8:48am

    consider...

    To the Anonymous it may concern:

    Its worth considering the timing of the polarization of intellectual property law. Nobody cared about inventor's and author's rights to limited duration monopolies when it wasn't so easy to copy their work.

    Now that its easy to steal a bit of code, some say down with patent. Now that its easy to copy a song, some say down with copyright. But they don't stop to consider that the means by which they are so easily able to appropriate these materials were created by the system they are fighting so hard to destroy.

    And indeed, the REASON for intellectual property, is not motivation. People are motivated to great lengths by notoriety and sheer accomplishment. The REASON for intellectual property, is that it afford the inventor or the artist a means for securing his livelihood after his creation, while pursuing further creation.

    This is common sense. If I cannot make money from something I create, because you are free to copy or distribute it at will, then I cannot afford to make these creations my exclusive pursuit. Destroying IP disincentivises people from becoming professional artists, and professional inventors.

    Men wholly committed to an endeavor will typically achieve more then men whose attention and time are divided between many. This is why professionals are better at things than amateurs.

    So when you're bashing intellectual property, remember, the REASON you care to bash it, is because it has allowed men to create the means by which you have overcome it. And remember, that the reason for intellectual property is "To promote the PROGRESS of Science and useful Arts."

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