Intellectual Property as a Grant of Special Privilege

Jan 21st, 1837

Finding himself insufficiently able to defend the property rights of authors, Leggett begins to argue that property rights are utilitarian conventions.

Anthony Comegna, PhD

Assistant Editor for Intellectual History

William Leggett was one of the most forceful, influential, and original American thinkers of his era. Born at the turning of an era, Leggett was a thoroughgoing child of eighteenth-century rationalism and the nineteenth-century transcendental romanticism. Like his liberal Enlightenment forebears, Leggett ruthlessly investigated the laws of nature. Like his romantic, idealist contemporaries, he viewed the world in moral terms and universalized his thought to encompass all that Nature touches. For Leggett, it was not merely true that water flows downhill and that government meddling with interest rates channels resources to suboptimal projects. These statements were in fact true in the same way--both were commentaries on Nature and Nature’s Laws. Thus, in Leggett’s thought, to understand Man’s optimal social institutions, one must understand Man’s own nature and the nature of the world around him.

Leggett approached virtually every question of political economy in this “Loco-romantic” fashion. Believing that right theory can only lead to right practice and that wrong theory must necessarily lead to wrong practice, Leggett confidently applied his radical liberal first premises to even the most outlandish and “fringe” discussions of his day, from abolitionism and private coinage to the subject of our current document, intellectual property and “The Rights of Authors.”

In this important article from his own short-lived paper, the New York Plaindealer (1837), Leggett responds to the popular push among the New York literati (many of whom were Leggett’s friends and allies) for an international copyright law. Rather than rest satisfied with the constitutional legality of such an act, Leggett rigorously applies his first principles and determines that authors and inventors cannot claim monopolies on their ideas without the partial, partisan, and iniquitous intervention of government.

Read Less

By William Leggett. New York Plaindealer, January 21, 1837.

Rights of Authors

The whole question of the propriety of an international copyright law, or a copyright law at all, resolves itself, we think, into the enquiry whether such a regulation would promote the greatest good of the greatest number. This is the principle which we conceive constitutes the basis of the most important rights of property. They are artificial rights, not rights of nature. They are created by laws, not merely confirmed by them. This is obviously the case with regard to that species of property which the political institutions of all civilized countries regard with peculiar deference, and secure with particular care, and to which the distinctive appellation of real estate is given. The right of property in land, like the right to breathe the vital air of heaven, is, by nature, common to all mankind; and the only just foundation of individual and peculiar rights is furnished by the law of the land. Locke, who goes as far as any writer in tracing the right of property to inherent causes existing anterior to political institutions, does not maintain that any thing gives to an individual a distinct and exclusive right to land, except in as far as by occupying it and mixing his labour with it, it becomes his own in such a sense that you cannot take it away without also taking the fruits of his labour, which, he contends, are his own by nature. Paley, on the contrary, in his book on Relative Duties, considers the law of the land the only real foundation of territorial property.

But let us, in conformity with the opinions of Locke and other accredited writers, concede that men have a natural right of property in the productions of their own industry and skill; that the mechanic, for example, has an exclusive right to the article he manufactures; the fisherman to the fish he catches; and the fowler to the birds he shoots. To the same extent the author has an exclusive natural right of property in the book he composes; that is, he has a natural right to the manuscript, so long as he chooses to retain it to himself. The process by which the mechanic fabricates a particular article is his property, so long as he keeps it secret. The peculiar arts of the fisherman and fowler are their property, in the same way, until they communicate them. And the thoughts of the author are his property, equally, until he publishes them to the world. In all these cases, alike, so far as natural rights are concerned, they then become common property. Every body is at liberty to imitate the article manufactured by the mechanic; to practice the artifices of the fisher and fowler; and to copy the book of the author. Any further exclusive or peculiar property in them has no other foundation than the law.

The right of exclusive property, of the exclusive use and benefit of the fruits of one’s own labour, is the great and secure foundation of social order and happiness. Without it, man would never rise above a semi-barbarous condition; and in those communities where it is most securely guarded, we invariably find the highest degree of moral and intellectual refinement, the greatest general prosperity, and the most advanced condition of all the arts which sustain and embellish life. But we would have it understood, in passing, that this important and fundamental right is violated as fatally by unequal laws, by laws which give peculiar facilities for the acquisition of wealth to the few, and deny them to the many, as by those more obviously arbitrary edicts, which directly and openly deprive the labourer of his reward. The true security of the right of property consists in equal legislation.

If we are correct in the position assumed, that the exclusive natural right of an author to his production, like that of a mechanic to the fashion or device of his table or chair, extends no further than to his immediate copy, the question for society then to determine is, whether it is proper to create and guard this right by legal enactments; and the decision of it, in our view of the subject, should rest solely on the consideration of the effect it would have on the interests of the great mass of mankind, or, to repeat Bentham’s phrase, it should be decided according to the principle of “the greatest good of the greatest number.” It is entirely within the competency of the law to make a literary production property, either absolutely and in perpetuity, or in a qualified sense, and, for a limited period of time. If government should choose to do neither, but leave the published book as free to be copied, as a new device in cutlery, a new style in dress, the author would be without reasonable ground of complaint, since he entered into the vocation without the prospect of any other advantage, than what necessarily and inalienably belongs to the opportunity of the first use of the fruits of his labours.

But if the law undertakes to establish a certain kind of property in the productions of authorship, “in the fruits of intellectual exertion,” to use the language of our correspondent, it must fix the limit somewhere; and those intellectual labourers excluded from the vineyard, (and there would necessarily be many such) would then have some reason to complain of partial legislation. The farmer who, by a long and careful study of the processes of nature, discovers an improved method of tillage and culture, by which he can make his field yield a harvest of twofold abundance, ought surely not to be excluded from the category of those who benefit mankind by the fruits of intellectual exertion; yet the neighbouring farmer, who ploughs the adjoining field, copies his mode of tillage, and no one ever thinks of instituting a law to give the first a right of property, and secure to him the exclusive advantages of his discovery. The artist who spends days and nights of patient intellectual toil in devising tasteful and symmetrical patterns for the lace worker and silk weaver, sees the fruits of his intellectual labour copied as soon as they are exhibited; and does not dream of asking the security and advantage of any peculiar legal rights. The natural advantage of the inventor, that he is first in the market, presents a sufficient stimulus to exertion, and secures, in most cases, an adequate reward.

If the principle of copyright were wholly done away, the business of authorship, we are inclined to think, would readily accommodate itself to the change of circumstances, and would be more extensively pursued, and with more advantage to all concerned than is the case at present. It is very much the fashion of the day to deride and decry cheap publications. We are not of the number who can join in the censure. The great good which the invention of printing originally effected, was to diffuse literature, and make books accessible to myriads, who were precluded from them before, by reason of the enormous prices at which manuscript copies were sold. What the first rude efforts of the printing-press were, in comparison with the slow and painful manipulations of the cloistered scribe, the art of cheap printing of the present day is to that art as it was practised by our fathers. It is spreading literature over the entire land. It is penetrating with it into every nook and corner of society. It is offering its golden fruits, ay, richer than gold, to the poor and ignorant, as well as to the rich and educated. It is awakening millions of human beings to a sense of their birthright; to acknowledge that they are God’s creatures, and not beasts that perish. We are the friend of cheap literature, for it is the friend of humanity, and is exercising an important influence in the illustration of the most interesting problem of morals, the infinite perfectibility of man. If there were no copyright laws, all literature would take a cheap form, and all men would become readers. It would take a cheap form to preclude competition; and it would be widely diffused because of its cheapness. Instead of an edition of two, or three, or five thousand copies, which never constitute, as a general rule, the maximum of a popular author’s success, twenty, thirty, and perhaps a hundred thousand would be readily disposed of. Let us withdraw our attention, for an instant, from a contemplation of the interests of authors, to consider those of mankind at large. Who can fail to see how vastly the general benefit would be promoted? What a noble spectacle an entire nation of readers would present! With what intelligence and order would not its affairs be conducted! And if knowledge is power, what a vast influence it would exercise in the counsels of nations, and in directing the destinies of mankind!

But there is no need that we should throw the interest of authors out of sight in this consideration. On the contrary, we believe the benefit to themselves would be in an equal ratio with that to the community at large. If they were left without the protection of a copyright, their business would assume new forms. They would connect themselves, in schemes of extensive publication, with those whose facilities would put competition at defiance. The advantage of a first copy is in itself incalculable. With publishers of large capital, whose measures are wisely taken, it is worth more than ordinary copyrights. The Harpers, if we are correctly informed, pay British writers, for a duplicate copy in advance of publication in London, as much as some of the copyrights of some of the most favoured authors at home will command. Nobody attempts to reprint the Penny Magazine and Penny Cyclopedia upon Jackson; simply because, having by arrangement with the British publishers, the benefit of a first copy, he puts it in so cheap a form, and prepares so vast an edition, that competition is intimidated, as it has everything to lose and but little to gain. The advantages of a first sale, when the preparatory steps are duly and discreetly taken, are prodigious. They constitute the author’s natural and inalienable right; and we repeat our strong conviction that if he were left alone, the interest of both author and public would be most effectually promoted.

If we are right in the view we have taken of this subject; if it can be shown that the present system is wrong in itself, as tried by the greatest good principle; the argument in favour of the extension of the copyright law, so as to embrace the authors of other countries, falls to the ground. It is the same argument which we constantly hear used in favour of extending the grants of special charters. But if an evil exists in our system, it is the duty of good citizens to endeavour to abolish it, not to make it an excuse for instituting other evils. Our correspondent says truly and eloquently, that there is no ground on which our Congress can be bound to act according to a decision of the House of Lords, nor on which they are not at liberty, setting authority and precedent aside, to revert to the first principles of justice and expediency. Our institutions are founded on a maxim widely different from the fundamental principle of other governments; and it is proper that our legislation should be marked by an equally distinctive character. It is for this young and vigorous republic to set an example to the nations of the old world; and after those glorious principles of equal liberty which constitute the basis of our political fabric, we hardly know a measure which would tend in a larger degree to promote the best interests of mankind, than the enfranchisement of the press from the exclusive privileges of authorship.

Editor’s Note

Anthony Comegna, PhD

Rights of Authors