Section — Bucceroni, Institutions of Moral Theology
On the Dominion of Authors
To n. 875 ff. ON THE DOMINION OF AUTHORS
"It is certain," says Fr. Gury, Comp. v. 1, n. 566, "that any man has by natural right a right in the fruit of his industry and of his talent. For if a thing bears fruit for its owner, a fortiori this ought to be true of internal faculties, since nothing can be more proper to man. Therefore anyone can use to his own advantage those things which he has thought out by his own talent in the sciences. Therefore the inventor of some art has a strict right that his secret not be stolen and, against his will, divulged to the public. But if this happens, the damager, according to the measure of the injury inflicted, is altogether held to restitution. But the difficulty is whether an author, once his works have been emitted into the light, can keep them proper to himself and exclude others from their use."
This use, of which the question treats, is that by which others commit works once published to the press themselves, and sell them for their own profit. If the author retains to himself a right of property absolutely and unlimitedly in his works already emitted into public light, certainly he can impede others from publishing and selling his works; or, as is commonly said, the author can reserve to himself the right of property as regards this use. But if the author now retains no right of property for himself in those works, he cannot reserve to himself the aforesaid use, of publishing and selling the book.
This question can be treated from natural right and from positive right. If natural right is considered first, there are those who hold that the aforesaid right of property, from natural right, altogether strictly belongs to the author. The reason is because if the law of nature itself demands that to each be preserved his own right in the fruit of his industry and talent, and no fruit of industry in our matter can be perceived unless the work is handed over, as they say, to the community, certainly the same law of nature demands that this handing over or publication of the work to the community not deprive the author of the fruit of his industry. On the contrary, there are those who hold that the author, by the right of nature, does not have a right in his work once already published and made public, because a thing once handed over to the community becomes by that very fact of common right; and therefore the right of nature cannot demand that the author be able to reserve to himself the use of the work and exclude others from publishing and selling it.
In order that the question be rightly resolved, the strict demand of right must be distinguished from fittingness or congruity and equity. Furthermore, a book formally considered, namely as regards that series of doctrine and its exposition and explanation which it contains, must be distinguished from a book materially considered, namely as regards that material edition which the author made. Now the question concerns neither mere congruity of right nor mere equity, nor is a question moved concerning the material edition made by the author himself. It is evident that it is altogether fitting and equitable that the author be permitted to enjoy the advantage and profit which comes from a book composed by him, and he perhaps will be able to perceive this advantage and profit only in small part unless the right is reserved to him of excluding anyone else from the aforesaid use of his book. Wherefore a positive law acceding and defining a right of this sort is certainly an altogether just law and obliging in conscience; and with that law standing, the author has a strict right of property in his own book. Likewise it is evident that the author, by natural right itself, has a strict right of property in that edition of his book which he himself took care to have made in his own name.
But if the discussion is of the strict demand of commutative justice, from natural right, and of another edition of the book to be made and sold by another in his own name, it seems far more probable that this is not opposed to natural right. And indeed the right of property is either a right in the substance itself of the thing and its utility, or in one or the other only. If the matter concerns the substance itself of the thing, since truth is the proper object of the human intellect, as soon as truth and a complex of truths has been published in public light, it becomes the property of each one. Wherefore, just as as soon as an Astronomer has manifested the existence of some star in the sky, all can see it, nor can the Astronomer retain to himself the right that he alone see the star with the exclusion of others, or that they at least pay some tribute to him if others wish to see the star in the sky with their own eyes; so the author of a book, as soon as he has publicly set forth some truth, or series of truths, certainly cannot impede others from understanding the truth, with no tribute paid to him, and perhaps even persuading themselves of it better than he himself. And this is confirmed from the very intention and scope of the writer, preacher, professor: for all these intend that readers and hearers be persuaded and make the doctrines handed down their own. And this is their greatest praise, if they obtain it.
Nor indeed can any difficulty be taken from the disposition of things, order, exposition, and the very diction or writing by which things are enunciated and manifested to others. For all these things are reduced to the truth itself and to art and science, which by natural right pertain to all. Nor indeed can there be any right of property in these things, since they can be useful to all; nor do they have in themselves the limitation which material goods have, so that if they serve and are useful to one, they cannot serve another, nor be useful to him. Does the author of a book understand and reason less because others understand what he taught in the same way, and reason in the same way as he does?
Hence another point is most easily demonstrated: once a work has been emitted into public light, the author does not preserve dominion in the use of his work, formally inspected, as we have already explained in n. 4; and in this sense we always speak of the author's dominion, and the question is debated among doctors. Truly, if the author does not preserve dominion in the substance of the thing as soon as the work has been made public, how, dominion in the substance having been transferred, will he himself preserve dominion in the use? If this could be done, someone could also by mutuum transfer to another the dominion in the substance of money, with the dominion of the use of the money reserved to himself, which afterward he would sell.
Besides, if the author preserves to himself dominion of the use of truths which he perhaps found, explained, and ordered, someone could not use them by study and meditation, and from them proceed by reasoning to other truths perhaps also to be found, as can easily happen in the chemical, physical, mathematical arts and sciences, etc., by proceeding even to the practical application of those truths, which indeed is of the greatest utility and also of the greatest profit. Likewise someone could not publish another's book with notes added for explaining things; nor could he refer texts from another's book in his own book; nor could he thoroughly refute another's book, and remove all authority from it as erroneous, scandalous; which imports dominion not only in the use but also in the very substance of the thing, which he destroys as by his own right.
Once the use of his book, publicly published, has been reserved to the author, to the professor in his lecture which he gives in a public academy, to the preacher in his sermon which he gives in a public church, now another writer cannot use that book for composing another and better book, since it is easy to add to inventions; now a hearer could not repeat the lecture to friends and discourse about it in another academy; now another preacher, retaining well by memory the sermon he has heard, could not without sin of injustice deliver the same sermon to the people, and perhaps with greater fruit on account of his personal qualities. But it matters little, as is clear, whether someone retains by memory a lecture pronounced by mouth, a sermon heard, and repeats it to others, or learns by memory and repeats another's lecture or another's sermon published in type. Likewise it matters little that someone repeat another's lecture or sermon orally to others, or transmit it by letters to friends, or by lithography, or even by public type, in the same language, or in another, or even in different languages. But since here one's own talent, one's own ability, one's own industry and labor also intervene, why can someone not perceive the fruit of his own talent and labor, or why must he abstain from exercising his own talent, from exercising his own labor?
Moreover, if the author had the aforesaid dominion in his own work, he could transfer it by testament to his heirs, and they to others. Now those who defend the aforesaid dominion of authors are content to assert it only for a determinate time. This limitation shows that in reality, in this question, the strict demand of right is confused with mere fittingness of right and natural equity. Likewise, if the author cannot claim for himself an absolute right in the use of his own book, how is a right of this sort restricted at least to excluding others from publishing and selling the book? For among the other uses of a book this also is numbered. And if someone buys a book, and thus by purchase has made it his own, materially also inspected, how can he be impeded from publishing that same book himself, and selling it in his own name, at his own expense and profit? If someone has a nursery of trees and sells trees, he certainly cannot prevent another, having bought a tree, from himself forming a nursery and then himself also selling trees from it, at his own expense and for his own profit. The same is altogether valid concerning another edition of a book.
Nor indeed does the argument of the adversaries prove anything; for since it proves too much, it proves altogether nothing. Truly, what is assumed is certainly true, that the very law of nature demands that to each one his own right in the fruit of his industry and talent be preserved. But a fruit of this sort is that which the author in reality perceives from the edition and from the editions which he himself makes of his own book. That a fruit of this sort also extends to editions made by another, or that another is therefore impeded from making these editions, is not drawn from that; indeed the contrary follows: for another uses his own talent, his own industry and labor, and therefore possesses and enjoys by right its fruits. The other point which is added, that the same law of nature demands that, if no fruit of our industry can be perceived unless the work is handed over to the community, that handing over not deprive the author of the fruit of his industry, likewise proves nothing. For first this would prove that the handing over of dominion in a mutuum ought, a fortiori, not to deprive the owner of money of the fruit to be perceived from money. Moreover, if the author of a book, lest he be deprived of the fruit of his industry, can impede another from publishing the book, translating it into another language, etc., a merchant, businessman, craftsman, etc., can impede other merchants, businessmen, craftsmen, from exercising the same commerce and business and the same art; for from that he is deprived of the fruit of his industry. Nor is it of force that he himself found the mode of manufacturing goods, of conducting business in such or such a way, of exercising the art. This is opposed to common sense itself and to the practice of the God-fearing. And thus if someone discovers a way of finding water in fields and publicly manifests it, who would ever impede proprietors of fields from finding water in their own land, or impede others from exercising this art and perceiving profit from it? Nor is it true that then the author of a book, for example, could perceive no fruit of his talent and of his industry. He certainly perceives the fruit of that edition, or of those editions, which he himself makes. This one thing is true in the case, that the author of a book does not perceive every fruit which can be had from it. But this contains no difficulty. For this is verified almost everywhere in all contracts. And thus he who sells a horse perceives only the price of the horse. The buyer uses the horse for several uses, and by his own industry perhaps earns each year money exceeding the very price of the horse. Nor could someone say that the law of nature demands that, if no fruit of his own thing can be perceived unless the dominion of the thing is handed over to another, that handing over not deprive the owner of the fruit of his own thing. Once the handing over of dominion has been made, that fruit is no longer the fruit of his thing, but of another's; and the thing bears fruit for the other owner, not for the prior owner, whose thing it no longer is. Besides, if someone attends even lightly to the force of the argument brought forward, it is plainly such that it altogether concedes what the adversaries affirm, namely that the thing is handed over to the community, and consequently that the author is deprived of that right of property, and that the thing becomes of common right. But what is asserted, that even in such a case the law of nature demands that the author not be deprived of the fruit of his industry, is consequently said indeed of congruity, of a certain fittingness, of a certain natural equity, but logically it cannot be said of strict right by force of commutative justice.
With these things presupposed, we now resolve various particular questions. And first: does he violate another's right who publishes in type a manuscript work without the consent of the author? R. Affirmatively. The reason is that the work, so long as it has not been emitted into the light, remains altogether under the dominion of the author. Wherefore such a usurper is held to restitution of the manuscript and compensation of damages.
Likewise, does he violate another's right who publishes in type the lectures of some professor, or the sermon of an orator? R. There are those who generally affirm this, even concerning a public lecture or sermon. The reason is that to teach or preach publicly is not to hand one's work over to another for publishing or selling. But it seems that a distinction must be made. For if the matter concerns a private lecture, a private sermon, it is a clear thing that the professor or preacher retains his whole right in his lecture or sermon. But if the matter concerns a public lecture or sermon, the argument already made has force: that the thing has already been handed over to the community, and by that very fact has been made of common right. And this is confirmed by the fact itself, for there is no one who condemns as injurious to others those who publish public speeches in type, in newspapers, of Deputies or Senators in Parliaments, or of others in public assemblies. The very words of the Supreme Pontiff in public receptions of the Christian faithful are publicly published, and there is no one who accuses this as a grave sin against justice.
Can a recently published book be committed to type in another place without the permission of the author? R. If the matter concerns a very distant place, those Doctors themselves who contend that by the right of nature the author retains the right of property in his book to be published again, so that others are excluded from such a right, concede that in such a case a right of this sort seems less to be urged; since an edition in very distant regions less impedes the author from perceiving a congruous fruit of his industry. And this reason still more clearly shows that the author in reality does not retain a right of property in his work; since if he retained that right, it would matter little whether the book is published in a neighboring or distant region without permission, against the will of the author. Certainly it matters little, as regards injustice, that someone occupy another's house, another's field, and use and enjoy them against the will of the owner in a neighboring or most remote region. Nor is it of force to say that someone in such a most remote region could not defend and protect his right of property; otherwise, as the Doctors themselves shrewdly note, it would be lawful for anyone to take crops or grapes for himself at will, because the owner of the field or vineyard is not able to guard them. But if the matter concerns a neighboring place, and treaties are present between various dominions, by force of which the author can enjoy the same right elsewhere as in his own country, commutative justice is certainly wounded, and the violator of another's right is held to compensate damages according to the norm of the laws. But if no convention is present between various regions, since law has no force outside the territory of the legislator, although perhaps such a law is present in the place of the author, nevertheless in another place the editor of the book is not bound by it; and therefore the matter is to be defined only by natural right. But by natural right a right of property of this sort is none, or is very uncertain. Therefore he who uses his own right and publishes another's book cannot be accused as a violator of another's right and as a damager. And this is much more valid if someone did not merely publish another's book, but first translated it into another language. For then one's own industry and one's own labor enter still more.