Property, Real & Imagined: Leggett on the Ownership of Ideas

It is true that too many of those whose genius has rendered them immortal, have employed their noblest efforts to embellish the solid structure which tyranny erects on the prostrate liberties of man. The two divinest bards, that ever addressed their strains of undying harmony to the enraptured ears of mortals, were the flatterers and upholders of aristocratic pride, and the scoffers of the rights of the people. Homer and Shakspeare “licked absurd pomp,” and taught men to regard as a superior order of beings those whose only claims to preeminence were founded in rapine and outrage. But when we look back through the bright list of names which English literature presents, we do not find this censure to be of general application. He from whom the remark is derived, as to the potent influence of those who frame a nation’s ballads in forming the national character—sturdy old Andrew Fletcher of Saltoun—did not address himself to a caste; he addressed himself to the people, and stood forward ever the eager and intrepid champion of their rights. Milton did not address himself to a caste, but to mankind; and Marvell and Harrington were animated in their writings by the single and exalted motive of improving the political condition of their race.

But we need not contest the sentiment to which we have offered this brief reply, since it does not touch our argument. It is for the very purpose that “the Republic of Letters” may be upheld by the people, and that it may be composed of the people, that we desire to see the principle of literary property abrogated. We do not wish to deny to British authors a right; but we desire that a legal privilege, which we contend has no foundation in natural right, and is prejudicial to “the greatest good of the greatest number,” should be wholly annulled, in relation to all authors, of every name and country. Our position is, that authors have no natural right of property in their published works, and that laws to create and guard such a right are adverse to the true interests of society. We concede at once, and in the fullest manner, that if the propriety of establishing a right of property in literary productions can be shown, the principle ought to be of universal application; that it ought not to be limited to any sect, or creed, or land, but acknowledged, like the plainest rights of property, wherever civilization has extended its influence. An author either has a natural and just right of property in his production, or he has not. If he has, it is one not to be bounded by space, or limited in duration, but, like that of the Indian to the bow and arrow he has shaped from the sapling and reeds of the unappropriated wilderness, his own exclusively and forever.

With regard to the influence which British literature exercises in forming the popular mind and character in this country, we see no cause to fear unfavourable results, if American literature, to which we naturally look to counteract the evil tendencies of the former, is not excluded, by reason of the incumbrance of copyright, from an equally extensive circulation. Leave error free to flow where it listeth, so that truth is not shut out from the same channels. Give both an equal opportunity, and who can doubt to whom will belong the victory? “Who knows not,” says John Milton, “that truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings, to make her victorious. Those are the shifts and the defences that error uses against her power.” It was under the influence of British literature exclusively, and in many instances of education obtained in British colleges, that our national independence was asserted and achieved; and it would be strange, indeed, if we should be rendered now unmindful of its value, by the tawdry and sickening aristocracy which bedizens the pages of British novels and romances. “The men who write the ballads” are not those whom a copyright stimulates into the exercise of their powers; and if they were, the Americans, thank heaven! are not the people whom ballads move with irresistible influence. We go to our political affairs, as mathematicians go to their abstruse labours; with their intellectual energies screwed to too high a pitch, to be shaken from their purpose by the sounding of brass or the tinkling of cymbals.

We turn now to a consideration of the article of our correspondent, who has ingeniously erected his structure of logical arguments on a foundation furnished by ourselves. Our position that an author has an exclusive natural right of property in his manuscript, was meant to be understood only in the same sense that a mechanic has an exclusive natural right of property in the results of his labour. The mental process by which he contrived those results are not, and cannot properly be rendered, exclusive property; since the right of a free exercise of our thinking faculties is given by nature to all mankind, and the mere fact that a given mode of doing a thing has been thought of by one, does not prevent the same ideas presenting themselves to the mind of another and should not prevent him from a perfect liberty of acting upon them. The right which we concede to the author is the right to the results of his manual labour. The right which is claimed for him is the right to the ideas which enter into his mind, and to which he gives a permanent and communicable form by writing them down upon paper.

But when we pass from corporeal to incorporeal property, we immediately enter into a region beset with innumerable difficulties. The question first naturally arises, where does this exclusive right of property in ideas commence? The limits of corporeal property are exact, definite, and always ascertainable. Those of incorporeal property are vague and indefinite, and subject to continual dispute. The rights of corporeal property may be asserted, without the possibility of infringing any other individual’s rights. Those of incorporeal property may obviously give rise to conflicting claims, all equally well founded. If you catch a fish in the sea, or shoot a bird in the forest, it is yours, the reward of your patience, toil, or skill; and no other human being can set up an adverse claim. But if you assert an exclusive right to a particular idea, you cannot be sure that the very same idea did not at the same moment enter some other mind. This is obviously and frequently true with respect to single thoughts, and it will readily be conceived that it may happen with respect to a series. Language is the common property of all mankind, and the power of thought is their common attribute. Shall you then say to a person who has expressed certain ideas in certain words, you shall have an exclusive right of property in those ideas so expressed, and no other human being shall ever use the same sentiments, without incurring a penalty for his tresspass?

If the author has a natural right of property in the ideas of his mind, once committed to paper, it is a right which ought to be universally acknowledged, and he should be allowed to enjoy exclusively the profit of the use of his property in every civilized nation of the world. But where does this right commence? How many ideas must be joined together before they constitute a property? If a man construct an edifice, every brick or board of the entire fabric is his. He may sell it, or lend it, or convert it to what use he will; but no one can take it against his consent without committing a robbery. Is the author’s edifice of ideas equally his, in its component materials, as well as in their aggregate combination? Every sentence, perhaps, contains an idea, so natural that it is likely to occur to many minds, and expressed in such obvious language, that the same terms substantially would probably suggest themselves to all. His work is made up of such sentences. In what then consists his right of property? Is each particular sentence a property? Or do they not become property until joined together?

But the subjects of books are various. Some are flights of imagination; some are records of facts. In one, history relates her sober details; in another, science demonstrates his abtruse propositions. In all these, intellectual labour is exerted; but is the fruit of that intellectual labour property in all cases alike? Are the meditations of the poet property in the same sense with the calculations of the mathematician; and has each an exclusive right to the results of his labour? Before you answer this in the affirmative, you should reflect that the processes of mathematical calculation are the same throughout the world, and that the end aimed at by them is also identical. A book of mathematics is a book of calculations, conducted according to certain invariable and universally acknowledged principles; and though to compose it requires perhaps intense intellectual exertion, yet it calls for no original ideas or discoveries. Two mathematicians, one in France, for instance, and the other here, may easily be supposed toiling through the same processes at the same moment, and accomplish results exactly the same. Which has the exclusive right of property in his production? Which shall be permitted to publish his book, and proclaim to the other, and to all the world, I alone am invested with the rights of authorship?

Many of the most interesting and valuable works are mere records of discoveries in experimental science. But two philosophers may at the same time be engaged, in different parts of the world, in the same series of experiments, and may both hit on the same result. The discovery, as mere property, is only valuable perhaps through the medium of publication; yet shall the right of publishing be restricted to one, and if the other presume to tell the same philosophical facts, shall he be considered a species of felon? The law of patents rests confessedly on the same principle as the law of copyright. They both pretend to have natural and obvious justice for their foundation. The inventor of a new application of the principles of mechanics claims a right of exclusive property in the fruit of his intellectual labour, not less than the writer of a poem or a play. Yet some of the most valuable inventions which have ever been given to mankind have been produced simultaneously, by different minds, in different parts of the world. It is uncertain to this day to whom men are indebted for the application of the magnetic needle to navigation; and the honour of the discovery of the art of printing is yet a matter of dispute. While Franklin was pursuing his electrical experiments in Philadelphia, the philosophers of Paris were engaged in similar investigations, and with similar success. Rittenhouse, when he planned his complicated and ingenious Orrery, knew not that such an instrument had already been completed, which was destined to perpetuate the name of its inventor. Newton and Leibnitz each claimed the exclusive honour of their method of fluxions; and many more instances might be adduced, if we had leisure to pursue the subject, of such jarring and incompatible claims to exclusive property in the fruits of intellectual labour. The cases we have stated will sufficiently show that there cannot be, in the nature of things, a positive and absolute right of exclusive property in processes of thought, which different minds may be engaged in at the same moment of time. Two authors, without concert or intercommunion, may describe the same incidents, in language so nearly identical that the two books, for all purposes of sale, shall be the same. Yet one writer may make a free gift of his production to the public, may throw it open in common; and then what becomes of the other’s right of property?

The remarks which we have thus far offered go merely to assail the position of the natural right of property in ideas, as existing anterior to law, or independent of it. It is essential to the establishment of such a natural right, that it should be shown to be distinct property, which absolutely and wholly belongs to some one individual, and can belong to no other than he. The labour of your hands belongs to you; for no other individual in the world performed that labour, or achieved its particular results. But the labour of your mind can produce only ideas, which may be common to many minds, and which are not susceptible of being distinguished by marks of peculiar property. Another person falling, under similar circumstances, into the same mood of cogitation, may produce ideas—not merely similar—not another set of perfect resemblance to the first—not a copy—but identically the same. There is an inherent difficulty in fixing limits to incorporeality. The regions of thought, like those of the air, are the common property of all earth’s creatures.

By William Leggett. New York Plaindealer, February 25, 1837.

We have provoked such odds against us, in the contest on the subject of the rights of property in intellectual productions, that we do not know but that it would be “the better part of valour” to quit the field incontinently. To emulate the conduct of the bold knight whose determined heroism is recorded in Chevy Chase, and who, when his legs were off, “still fought upon his stumps,” might seem, in such a dispute as we engaged in, rather censurable obstinacy, than praiseworthy courage. Or if it provoked a smile, it would probably be one, not of approbation, but of that kind which we bestow on the logical prowess of Goldsmith’s Schoolmaster, who could argue after he was vanquished, as Bombastes Furioso continues to fight after he is killed.

There is one motive, however, which might not be without some weight with us to persist in the controversy, even after being convinced we had espoused the wrong side. If our doing so would continue to draw such writers into the field as we have heretofore had to contend with, we should not be without excuse; as their forcible reasoning and perspicuous style would far more than counterpoise the influence of our erroneous opinions, exert what ingenuity we might to establish them.

But we choose to deal ingenuously with our readers. We took up arms to battle for the truth, and shall lay them down the moment we find we have inadvertently engaged on the side of her adversaries. That we are shaken in the opinions we have heretofore expressed, we freely admit. The idiosyncracies of style, to use the term aptly employed in the eloquent communication annexed, are marked with such distinctness, that a bare phrase of three or four words, from a writer of admitted genius, is often so characteristic and peculiar, as to indicate its source at once, even to those who have no recollection of its origin, but who judge of it as a connoisseur does of a painting.

How far this peculiar mode of expression can be considered property on the principles of natural justice, is the question in dispute. We are not entirely convinced that we have taken wrong ground on this subject; yet we by no means feel so confident of the correctness of our opinions as we did when we put them forth. One thing seems to us, and has all along seemed, very clear: if the author has a natural right of property in the products of his intellectual labour, it ought to be acknowledged as extensively as the capitalist’s right of property in his money, or the merchant’s in his goods. It is a common law right, not a right by statute, maugre all decisions to the contrary. If, on the other hand, his right is derived from a law founded on views of expediency, instead of the principles of natural justice, we revert to our first position, that the greatest good of the greatest number would be more effectually promoted by the total abrogation of copyright property.

Let the claim of natural right be established, and we should be among the last to invade it; but concede that the question rests on any other basis, and we think we should have no great difficulty in showing that the general welfare would be advanced by abolishing the principle of exclusive property in written compositions, as it is never asserted in those which are merely spoken.