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. icon
    chris (profile), 10 Sep 2009 @ 9:44am


    but what if people that get copies of that picture, photograph, book, etc starts stating that he painted it, or wrote it? What if he becomes famous because of that lie, and people starts hiring him to draw pictures, take pictures, etc? On the other side, we have the real author, not knowing what to do, saying he wrote/painted the work. Maybe even he doesn't have funds to go public stating that he is the real author! Don't you think there is something wrong with this?

    prolific copying and distribution of a work makes it known who the author/writer is and makes these plagiarism issues easier to deal with. if there are millions of copies of a picture or book floating around over the years with your name on it, then it's not hard to get people on your side in the argument that a work is yours, especially if you gave it to them. there is tons of drama on the internet about this very thing (do a google search for "dear god, please make everyone die. amen")

    if you want to plagiarize a college paper and download one from the net, what's to stop the school or instructor from searching the same net and finding the same paper? getting your stuff out there for people to see hear and read solidifies you as the owner.

    in fact, attribution is a huge deal even for the most notorious of pirates. there are countless tales of the famous aXXo getting his feelings hurt over people uploading his movie rips as their own or for putting the aXXo name on low quality rips.

    aXXo has a reputation for quality releases that he/she wants to maintain and get credit for and when he/she feels besmirched there is drama and not refusal to work with a given site or tracker.

    no one believes that aXXo wrote, directed, or produced the movies he uploads, nor does aXXo want anyone to believe that, but he does want his reputation and standing with the scene protected.

    Maybe copyright is not the way to regulate the right of attribution, but I think nobody can disagree with the statement that this needs to be regulated somehow. For the time being, is copyright. Maybe in the future there is another form

    it sounds more like a kind of trademark issue to me. you want your identity as a creator protected, and your works, however they are distributed, to be associated with your identity. it would seem that exposure would regulate a lot of that: if everyone has your picture or book, then it would be hard to disprove that you painted or wrote it.

    a lot of this is covered in "against intellectual monopoly":

    levine talks about plagiarism as a kind of identity theft, and how it's reasonable to want consumers and producers alike to protect against it.

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