§ 3. that, logically, Utilitarianism is the groundwork of the Necessity science and art of legislation, and that therefore the justification of any particular law, the reason which justifies its enactment, is the ultimate benefit to result to the community from its conformity to such a law. for preliminary investigation obviated. § 4. Absolute rights dismissed. We may further dismiss from consideration the much vexed question of "Absolute Rights" by taking for granted the position of the Austinian jurisprudence that all "rights," in the strict sense of the word, result from the command of the Sovereign, and have no existence prior to such command. As Professor Holland has well pointed out (e), the phrase "a right is used in two senses: where public opinion would view with approval a man's carrying out his wishes either by his own acts or by influencing the acts of others, and with disapproval any attempt to interfere with his so doing, the man has been said to have a "moral right" to act in such a manner. Where the power of the State will protect him in thus carrying out his wishes, and will compel other people to so regulate their conduct that his wishes may be carried out, he has a "legal right" to act in accordance with his wishes. When, therefore, it is said that a man has "a right" to do any act independently of the action of the State, all that can be meant is that people generally view with approval his performing that act, and that therefore his proposed conduct is presumably in accord with the general standard of morality. It may, however, be inexpedient to confer on him definite legal protection in such action. The interference of the State in certain departments of social life may be productive of more evil than good, or the general standard of (e) Jurisprudence, p. 58. Absolute morality may differ from the standard set up by legis- § 4. lation. A moral right therefore does not necessarily rights disimply a legal right, and the existence of the popular missed. approval constituting the moral right is only of importance to the legislator because a conflict of law and popular opinion is primâ facie a thing to be avoided. In taking this view of the matter we naturally reject the opposite theory as to absolute rights, founded on the Law of Nature and on justice, and in no way determined by considerations of utility. § 5. mental Since then no legal rights exist apart from the commands of the Sovereign, and the Sovereign in granting Fundarights is guided by considerations as to the benefits question resulting to the community from his proposed grant, Copyright. the Fundamental Question of the Copyright Laws is :— Is it desirable in the interests of the community that the State should create and protect property in literary productions or the results of intellectual labour? of Law of § 8. What is meant by "Property in literary tions." And before answering this we are led to consider the meaning of the phrase "Property in literary productions." "Property" is defined by Austin as "the right to use or deal with some given subject in a manner producor to an extent which, though not unlimited, is indefinite" (ƒ). Such property is created by the State when it orders all persons to abstain from so acting as to interfere with certain uses of the thing by the person invested with the right. This right being indefinite, cannot be exactly defined. It may be said to be a right to do what one likes with a thing subject to restrictions imposed by the State, (ƒ) Austin, i. 382. which have mainly reference to the prevention of harm to other people. It has been divided roughly into 1. The right to use. 2. The right to prevent others from using. 3. The right to destroy. 4. The right to alienate during life. 5. The right to alienate at death. The State however in conferring protection may not confer all of these. The creation of literary property is asked in the following way. It is found that literary compositions have or may have an exchange-value. People are willing to give money to listen to a lecture, or to obtain a copy of a book. There is in short a demand for literary labour, and this pecuniary demand is one of the motives which lead to literary supply. When an author has written a work, unless the State intervenes, his manuscript may be stolen and copies sold to the public by the thief. The return for the author's intellectual labour thus is obtained by the thief and not by the author; or when the author has communicated his work to the public others may reproduce his work by mechanical means, and so may intercept part of the effective pecuniary demand which otherwise would have come to him to be satisfied. An author therefore asks that the State should protect him by creating literary property. He asks that the State should prevent others from multiplying copies of his work and communicating them to the public without his permission. He asks that such unauthorized communication be restrained, whether it be the communication of the whole or of a part of his work; as either professedly his or under a disguise; in its original form, or abridged, or translated into other languages, or made by other channels than those by What is which his communication has been made. This being the nature of the literary property which the State is asked to create, the questions to be dealt with in the first part of this essay are:— I. Shall the results of literary labour be protected at all? Shall the ideal "Corpus Juris" contain a Law of Copyright? II. If so, what shall be the nature and limits of this protection: what shall be the provisions of the ideal Copyright Law? To the discussion of the first of these questions we now proceed. meant by "Property in literary produc tions." Questions § 7. to be answered. § 8. Interests of the State in literary property. $ 9. How they may be secured. CHAPTER II. THE FUNDAMENTAL QUESTION OF THE COPYRIGHT § 8. Interests of the State in literary property.-§ 9. How they may WITH respect to literary productions, the interests of the State are: 1. To obtain good literary work. 2. To obtain it at as small a cost to the community as possible. The interest of authors is to obtain as large a return for their work as possible, both in reputation and in money. The interest of publishers is to obtain as much security as possible for the capital they invest in supplying the public demand for literary productions. And generally it is to the interest of the community to secure these ends without legislative interference. The interests of the State have been said to be two:I. Good books: II. Cheap books. The best books will be secured if the best men can be induced to write them. So long as there is an efficient demand for good books, there will be in the long run a sufficient supply of them; but the demand, to be efficient, must furnish authors with the rewards for writing which they desire. And these |