§ 2. On Man's Ownership Over the Offspring of His Own Genius

The question regards both writers and ingenious craftsmen, who illustrate the arts, whether liberal or industrial, with new inventions.

855. Principles. I. From natural law, full ownership of his works or inventions belongs to an author or inventor, certainly before their publication, probably also after publication.

1. As regards works not yet published, the thing is clear of itself. Therefore he who publishes such things is guilty of theft. And the same thing seems to have to be said concerning him who would print the public lectures of a professor or the sermons of a sacred orator; because to teach publicly, or to preach, is not to publish one's work, to hand it over publicly in such a way that anyone can subject it to the press. Except if it is certain that the author is not unwilling.

2. Then, as regards works already published in public, certain authors judge that after publication the exclusive right in a work of genius is lost (ap. Vermeersch, o.c., n. 246). Others contradict this, saying: ownership and the right of further publishing remain with the author, who grants only the use of the published work (Noldin, II, 379).

At least it must be admitted to be consonant with equity that to any author there be attributed a right of property in the fruit of his labor or industry, and indeed an exclusive right, so that without his consent, or after him the consent of his heirs, no one can publish those works again in public (Carriere, l.c., n. 61). Since there was question of a thing too uncertain, it belonged to public authority to determine all things more clearly.

856. II. From positive law, after publication (provided certain conditions are fulfilled), a monopoly belongs to the author or inventor, which attributes a strict right as regards principal things, a less strict right as regards accessory things. This privilege is conceded by reason of the common good, both for fostering industry, and for compensating the expenses that often must be made, and for remunerating labors that yield to the common utility. Therefore civil law confers on authors a strict right both in the external and internal forum (Carriere, l.c.).

We distinguished between principal and accessory things. The principal thing in these laws is the prohibition of reproduction that would be made for taking profit, by way of commerce. Those who thus violate the right of the author act unjustly. - The accessory thing is the prohibition of reproduction that would be made by help of a machine for a restricted group, the prohibition of printing and diffusion in distant regions, or of translation into another language, the insertion of many parts into another work under another form and another title, according to, for example, Noldin, II, n. 379; Ami du Cl., 1910, p. 113. These accessory things do not certainly oblige in conscience. The reason is that the author, on account of this transcription and reproduction, does not suffer so appreciable a damage; besides, the fine imposed on transgressors is disproportionate to the delict.

In France, a privilege is granted to inventors of industrial arts for 5, 10, or 15 years, at the will of the petitioner, provided he pays a proportionate sum of money. He who has received such a privilege or patent of invention can call violators of his right into judgment; and unless the accused proves either that the patent was obtained by a false title, or that imitation does not exist on his part, the inventor obtains confiscation of the adulterated objects and compensation of damages. - As regards books, paintings, musical compositions, etc., the exclusive right of reproduction (of translation into another idiom and of sale) is granted for the life of the author, and for 50 years after his death. - The conditions for books are that two copies be deposited in the public archive of the prefecture, and that the certificate of deposit be retained by the author. - But the right is alienable in whole or in part, for example to a bookseller, with the right of the heirs preserved for the legitimate portion. Law of July 14, 1866.

In Italy, a writer who fulfills nearly the same legal conditions as in France likewise acquires for himself, for the whole of life, the exclusive right of sale together with the right of reproduction. If he dies before the fortieth year from the first edition of the work, his heirs enjoy the same rights until those forty years have elapsed. But when those have elapsed or the death of the author has followed, the work can be subjected to the press by others and exposed for sale, yet under this condition, that for forty other years there be paid to him who acquired the right of the deceased five per one hundred (as they say), namely from that price which is read inscribed on the several copies, and which was reported before civil authority. - The right of reserved translation does not extend beyond ten years from the first edition of the work. Royal Decree, September 17, 1882.

In Spain, to a writer, during life, and to his heirs for eighty years after his death, an exclusive and alienable right of reproduction is attributed. The same right is obtained by those who, with the author's license acceding, abridge a book or transfer it into another language. Code n. 428, 429; law of January 10, 1879. See Gury-Ferreres, n. 566 seqq.

In Austria, from the law of December 26, 1895, the right of heirs continues as regards all works for thirty years, as regards photographs for ten years. Privileges have been abrogated.

In Germany (from the Introductory law, n. 76), the same law does not flourish in the individual kingdoms. Commonly the privilege of authors is not extended beyond thirty years after the death of the first editor. Cf. Kurschner, Lexicon des deutschen Reiches v. Urheberrecht.

In England, there is granted to the author a right either for life and seven years after his death, or for forty-two years from the first edition of the work (Crolly, t. I, n. 654).