A Remaining Minor Question: On the Ownership of a Published Book and a Disclosed Invention

C. de Lugo, vol. 2, disp. 26, no. 171; Kant, Von der Unrechtmäßigkeit des Büchernachdrucks [On the Unlawfulness of Reprinting Books]; Carrière, On Justice and Right, nos. 55-62; Marrès, On Justice, vol. 1, nos. 23-25; Waffelaert, On Justice, vol. 1, nos. 171-173; Cathrein, Moralphilosophie [Moral Philosophy], vol. 2, sect. 1, bk. 4, chap. 4, art. 4, p. 319, 3rd ed.; Moral Philosophy, nos. 385-387; Aubry and Rau, Droit civil français [French Civil Law], vol. 2, p. 171, note 8; Wauwermans, Le droit des auteurs en Belgique [The Right of Authors in Belgium].

The right by which a writer or inventor can prohibit others from republishing a published book or imitating his invention must be ascribed to the genus of property.

Moreover, that right seems to be derived from positive law, the chief provisions of which are consonant with natural equity.

246. I. State of the Question. 1. THE OCCASION OF THE QUESTION. After the art of printing had been invented and a new source of profit had been opened from the very publication of a work, it was natural to investigate what, against the will or without the knowledge of the writer, others could licitly do in this matter without injury. The question was delayed for some time, however, on account of the various privileges which, together with the necessary faculty of publishing, afforded publishers security from rivals. But after the impediments were suppressed and a general license was granted for printing and selling anything, there arose, not very long ago, a sufficiently sharp disputation concerning the right or ownership of writers. No one, moreover, is unaware how it is sanctioned by the positive law of almost all peoples that, for a definite time, the writer alone, or those who have the right from him, may translate the work or commit it again to the press. Indeed, provision has been made by treaties that this privilege should be held sacred even among foreign nations. Those who make graphic representations (dessins [designs]) are also accustomed to enjoy a similar benefit of law.

Not dissimilar is the question concerning inventions of the arts and sciences: whether it is permitted to imitate another's invention—for example, a remedy, a liquid, a machine, a better method of an art—or whether, on the contrary, there belongs to the inventor over all these things the inviolable industrial property, as they say, which, at the beginning of the French Revolution, was promulgated by a solemn decree of the council called the Assemblée constituante [Constituent Assembly] and confirmed by the sanction of law.¹ Thereafter, the nearly universal custom grew of granting, upon the payment of some money as though a tax, patents (brevets d'invention ou de perfectionnement [patents of invention or improvement]) for a certain number of years, by which a monopoly of the art or method devised by him is established for the inventor.

¹ “Considering that every new idea whose manifestation or development can become useful to society belongs originally to the one who conceived it, and that it would be to attack the rights of man in their essence not to regard an industrial discovery as the property of its inventor ...” (December 31, 1790-January 7, 1791).

Not only has the same right as was attributed to writers of books been granted to musicians and playwrights, but legislators, proceeding further by the same path, also began to prohibit those plays from being performed in public or recent musical works from being performed unless the authors consented; they are accustomed to grant this permission for an agreed payment. Concerning this, again, one can ask what judgment should be made.

Finally, recently, after the art of photography was made public, it was disputed whether or not it was permitted to depict and sell the image of a person against his will.

2. THINGS WHICH ARE ESTABLISHED IN THIS MATTER. a) The right of a writer over a manuscript work, and of an inventor over an art or method which he wishes to use and enjoy in secret, is manifest. Therefore, he would be guilty of the most evident injustice who, employing fraud or force, should steal and divulge the secret or publish the writings of another.

b) Nor is it disputed that an owner has the right to reserve the fruit of his own genius for his own utility—yet only so far as, Carrière shrewdly observes, no. 55, “the nature of the thing permits.”

c) It is also sufficiently agreed that the laws by which there is attributed to writers and inventors the privilege of gaining profit from the publication of a book or an invention are most just and agree exceedingly well with the wishes of nature.

The question, however, concerns the genus of this right: whether or not it is a certain property; and its first origin: whether it proceeds from human law or from nature itself.

3. OPINIONS. a) Among the ancients the question was rather unknown. Yet the few documents which they have left us seem to give little support to the claim that the right of writers is natural. Thus St. Augustine² denies that another's property is taken away by one who commits to memory a sermon composed by another and recites it to the people in church.

² On Christian Doctrine, bk. 4, chap. 29 (Migne, P.L., vol. 34, col. 120).

Molina and C. de Lugo, who already touch upon the present question in some manner,³ regard the right of writers and inventors as a privilege granted by the ruler for a most just cause, “for fostering the zeal and industry of authors and printers ... as a reward for their invention.”

³ Molina, vol. 2, disp. 345, no. 3; C. de Lugo, vol. 2, disp. 26, no. 171.

b) More recent authors, who weigh the matter deliberately in the balance, have gone off into various opinions.

α) Not a few, who treat only of writers of books, think that this genus of property is sanctioned by nature itself. Thus Ballerini-Palmieri (Opus morale [Moral Work], vol. 3, pt. 1, chap. 2, no. 115), Rev. Fr. Cathrein, loc. cit., Rev. Fr. Lehmkuhl (Moral Theology, vol. 1, no. 904 ff.), d'Héricourt (in Carrière, loc. cit., no. 59), and Wauwermans, op. cit.

Among them, some circumscribe the strict right to the profits of the first edition. This opinion of the Most Illustrious Bishop Waffelaert, loc. cit., is pleasing to Génicot (Moral Theology, vol. 1, nos. 477-478).

β) Others think that all things are to be derived from positive law, which they acknowledge to be consonant with equity. Among these are Rev. D. Marrès, loc. cit.; Rev. Fr. Bucceroni (Moral Theology: On Justice, no. 32 ff.); and Aubry and Rau, loc. cit.

γ) Others arrive at various distinctions.

There are those who, like Charles Comte (in Carrière), having rejected what they call industrial property, defend as proceeding from nature a certain special right of authors, different from property and equivalent to a temporal privilege.

Kant, op. cit., thinks that pirated editions violate, indeed, no property in the book (the work), but the innate property in actions (labors). Therefore, while he permits the imitation of things made by art (Kunstwerk), he condemns to restitution one who, without the writer's consent, has committed another's book again to the press. We shall meet his rather subtle rationale when we resolve the difficulties.

δ) Carrière sets forth his opinion in this manner: “Among those opinions, it seems most difficult to us to determine anything; for if the things brought forward on either side are read attentively, it will be manifest that many things either presuppose precisely what is in question, or are asserted altogether gratuitously.”

c) To us, those rights of writers or inventors: α) Have a certain rationale of property; β) Indeed accord with the wishes of nature, but are first instituted by positive law. We shall attempt to establish this by the two parts of the thesis.

4. THE TERMS ARE EXPLAINED.

To be ascribed to the genus of property, and not to some other peculiar rationale.

The right by which a writer or inventor can prohibit others from republishing a book already made public or from imitating his invention. By these words we describe the right so that the faculty which is in question may be plain. Leaving others aside, however, we take the two principal species, books and industrial inventions, which we think stand upon an equal right.

Moreover, that right seems to be derived from positive law. We therefore assent, as more probable, to the opinion of those whom we cited under letter b, β.

Its chief provisions, lest we appear to approve every single prescription of the laws.

Are consonant with natural equity: we mean that equity which, apart from a positive sanction, does not constitute a debt of justice and pertains rather to the virtue of friendship, although an act can become necessary from charity.

247. A. OF THE FIRST PART, which concerns the NATURE OF THE RIGHT.

Every faculty of ordering the substance or utility of some thing to one's own good, with others excluded, belongs to the genus of property.

But. Whatever right is assigned to a writer or inventor so that they alone can gather some temporal fruit falls under this genus. Therefore.

The major is established from the notions of ownership and property handed down above. Nor, from what we have said, is the truth of the minor any less evident. Therefore, we judge that those who have spoken against that part either differ in word alone and not in reality, or are deceived by an imperfect notion of property.

248. B. OF THE OTHER PART, concerning the ORIGIN OF THE RIGHT.

1. Moreover, that right seems to be derived from positive law.

For we establish that it cannot be ascribed to natural law:

a) From the matter of the right of property. For external things of which there is natural property are of such a kind that they can be joined so truly to some person that, by taking hold of them, fortifying them, and physically occupying them, that person, unless overcome by a greater force, efficaciously excludes others and prevents them from the same use. Therefore, we have said that some fact is prior to the very right of ownership: I mean the physical subjection of the thing or a use that is not common (no. 215). And what, finally, is the very right of ownership, unless the moral inviolability of the physical bond by which a thing is referred to the good of one person and in fact “serves” him alone? What is effected by that right, unless that you may safely interrupt the physical detention of the thing which nevertheless always remains in your power? Hence wild beasts enclosed within overly spacious enclosures are not judged to have been appropriated; hence also an owner's rights in his own thing do not extend to those things which cannot physically be vindicated. Thus, for example, the owner of an estate cannot, unless a wall has been erected, prohibit others from surveying his goods with their eyes.

But, apart from the protection of law, it is altogether impossible that the writer of a book which has been published should at the same time retain the copies in such a way that force must be inflicted upon his own person in order to commit them again to the press. He who contends this could equally well, as Rev. Fr. Bucceroni argues, after making known the discovery of a star by him, demand that others should not dare, against his will, to look at that star.

Rev. Fr. Cathrein indeed says⁴ that this notion of property is too narrow, since it cannot be transferred to reputation. But there is nothing surprising in the fact that the notion of the property of corporeal things does not strictly hold for incorporeal things, such as reputation. Besides, a man does not per se lack means by which, even apart from civil protection, he may physically defend his reputation, preserve it unimpaired, and recover it when taken away, so that it is lost to an innocent person only per accidens. Reputation, moreover, is of itself assigned to us, while external things do not become ours except through positive occupation.

⁴ Moral Philosophy, no. 387, obj. 4.

The praised writer also attacks the comparison with the star, because positive law cannot grant a right that others should not look at the star against the will of its discoverer.

But for what other reason can it not do so, except because the command would be ineffective of itself? But if, where legal protection is of itself nonexistent, there is also no positive right, must it not likewise be said that there is no monopoly of natural right where, without public protection, there can be no physical defense of it?

Nevertheless, we do not wish to press too far the force of this comparison, which we have borrowed from Rev. Fr. Bucceroni.

b) From the right acquired by the buyer. Through the purchase of a copy, ownership of the book is so acquired that every use is judged just of itself unless that faculty is proved to be legitimately excepted.

But. A repeated edition of a book is assuredly some mode of using a copy. Nor is the exception proved. Where, as Kant rightly argues, is the formal stipulation concerning this matter? Where, I add, is even a tacit one, at least apart from positive law, when the will to prohibit this use universally would be plainly ineffective and in no way reasonable?⁵

⁵ The adversaries tacitly acknowledge the force of this argument by employing strange distinctions which are plainly gratuitous. Let these few words of the distinguished d'Annibale, for example, be read: “Although a secret is as though another's thing, nevertheless, once I have learned it, the knowledge of the hidden thing, as though a certain truth (which pertains to the intellect), becomes something of mine; therefore, I am not prohibited from using it without the unjust harm of another.... But if it is some invention of science or art, because whatever we discover with study and labor is something of ours, I think that my using it against the other's will is like theft.” Summula, vol. 2, no. 272.

c) From the limits within which the privilege of writers and inventors is contained. If the right were natural, it would of itself confer a stable and perpetual property which would equally have to be observed by all.⁶ On the contrary, the privilege of which we are treating is everywhere intended to be circumscribed by a certain number of years. Nor do those who think the right natural disapprove of an edition made in a sufficiently remote region, and they are even more doubtful concerning a translation into another language. Nor should you say that this right is limited to a certain number of years by positive law. For from the preceding thesis we hold that it is not within the power of the State⁷ thus directly to circumscribe the natural right of ownership; and it would be a thing full of danger to permit the State this. And here it would be a question of limiting the most sacred natural right which each person has in his own works or the fruits of his industry.

⁶ By the very fact that he admits that the right of an author becomes uncertain and doubtful after a longer time, Rev. Fr. Cathrein (Moral Philosophy, no. 387, obj. 2) seems to us to demonstrate that this right does not arise from nature alone. For it does not appear by what quasi-intrinsic defect a natural monopoly of the publication of a book would perish after a certain number of years. The rationale of equity by which the public power is moved to procure for an author even some temporal monetary gain from his labor certainly becomes smaller.

⁷ In reality, several adversaries seem here to have sufficiently forgotten the limits by which they themselves confined the right of the public power.

Our opinion is confirmed by the fact that men of unblemished reputation and scrupulous conscience transferred almost entire works of others into their own works, even omitting an indication of the source, so that they seem to have regarded doctrine once made public as a common good of the human family. Thus St. Bonaventure, in his commentaries on the sacraments, copied many things word for word from Richard of St. Victor. And, before treaties were entered into, the custom of producing pirated editions of writers of another nation had become sufficiently prevalent in Belgium and elsewhere that it can be said that these practices were not reproved by the common sense of justice.

2. At least the chief provisions of laws of this kind are consonant with natural equity.

For by these laws it is brought about that a fitting reward is obtained for useful labor; that, without common detriment, the fruits of industry, meditations, and perhaps prolonged efforts accrue more fully to the one who made them; and that new incentives are thus added for cultivating the arts, sciences, and letters. Finally, the very arguments soon to be answered make for this, by which some were moved to judge that the right was constituted by nature itself.

249. III. Difficulties.

1. FROM THE AUTHOR'S LOSS. For:

a) By those pirated editions it is brought about per se: α) That the writer and publisher, against their will, are deprived, at least in part, of the fruit of their industry; β) Indeed, that they do not even receive a fitting wage for the labor expended. But. These things of themselves are opposed to justice. Therefore.

Reply. I distinguish the major. By those pirated editions it is brought about per se either that, through unjust arts, the writer and publisher lack some profit, or that they lack the fruit and wage to which they have a right, I deny. That they are deprived of gain, but without injustice on the part of the mode or the object, I pass over.

For it is not enough to show a diminution of gain in order to argue injustice, but you must prove a violation of right. We deny that the writer's monopoly is natural, that this wage is of itself owed from justice, and that a new edition of the book is a fraud unjust of itself.

Let others have judged otherwise: as far as we are concerned, they may; but in these and similar arguments the principle is merely begged. That which is called into question is assumed. It is certainly open to everyone to try his fortune and to seek honest gain; yet he who chooses a less suitable means, or for whom the matter turns out otherwise, even if he has perhaps at the same time looked to the common good, will himself bear the loss, and he will not be able to lodge a complaint against rivals that he has suffered an injury from them. What if few should buy an excellent and useful book? Will you judge justice to have been violated, or the loss to be repaired from the public treasury?

Moreover, especially as regards the writer, can he not expect another fruit of his labor, more certain and more excellent: the fruit of communicated truth, the fruit of reputation and praise, whence the way to honors is not rarely prepared?

b) If that right is denied, who would wish to give labor to writing books, to incur the expense of publishing a book, etc.? But. A right without which such useful labors would languish proceeds from nature. Therefore.

Reply. I deny the major. I pass over the minor.

For through so many centuries writers lacked this kind of gain, yet they were not therefore fewer in number. How many even now write without any hope of gain, moved either by a higher end or by the desire of obtaining praise!

Not every hope of fitting gain is taken away from the publisher himself. For those who, protected by no safeguard of right, produce pirated editions seek gain. Are not books whose privilege has expired also published daily? Therefore, merely passing over the minor, these things at most prove the fittingness of a law which gives origin to this right.

2. FROM THE TACIT RESERVATION OF THE RIGHT.

a) A work has not been made public except for the customary and ordinary use of the copies. Therefore.

Reply. I distinguish the antecedent. With a law posited by which an extraordinary use can be efficaciously prohibited, I concede, or I pass over; apart from a law of this kind, I deny.

For of itself it is open to you to make any use, even an unusual one, of a thing whose ownership you have acquired. With the law posited, however, we have merely passed over the assertion, because we have not yet spoken of the force for binding conscience which is inherent in these decrees.

b) It is open to the owner of a thing to sell it to others under certain conditions only. But. In selling copies, the publisher of a book does not intend to transfer the right of publishing it with type; indeed, today the reservation of that right either in set words in the book itself is expressed or is tacitly understood to be added.⁸ Therefore. The right of publishing the book is retained by the publisher or writer.

⁸ In the familiar formulas: Tous droits réservés [All rights reserved]. — Das Recht der Uebersetzung wird vorbehalten [The right of translation is reserved], etc.

Reply. I distinguish the major. Provided those conditions have been agreed between buyer and seller, or have been brought into the agreement, I concede; otherwise, I deny. For of itself, every power which is contained in the right of ownership is acquired by the buyer. I divide the minor. As regards the intention, I deny that it is efficacious of itself, since it conflicts with the ownership granted, which of its own nature contains the faculty of every use. As regards the custom of today, those formulas customarily employed have this purpose: that the writer or publisher make manifest the intention of using the benefit of positive law. Hence we judge that this pertains little or nothing to the present question. For the easy distinction returns: From the custom of today there is a reservation of a natural right, I deny; of a legal or positive right, I concede.

3. FROM THE PUBLICATION OF THE BOOK FORMALLY CONSIDERED.

a) He who publishes a book without consulting the writer conducts the business of the latter against his will. Therefore. He must make good to the owner every loss and repay the gain made from the pirated edition. Thus, approximately, Kant, op. cit., who adduces this confirmation of the antecedent: A book is formally the speech of the writer to readers. Therefore, the publisher of the book necessarily presents himself as the one through whom the writer addresses men. But this is necessarily to conduct the writer's business.

b) A rationale not dissimilar is brought forward when it is said that a person's right to define in what way and manner his own thought of mind is to be communicated is innate; this right is violated by a pirated edition through which his discourse is accustomed to spread among the public otherwise than the writer had intended.

Reply. To a), I distinguish the antecedent. He who publishes a book without consulting the writer conducts the latter's business, insofar as he necessarily acts in the latter's name, I deny; insofar as he usurps the writer's right, I subdistinguish: If it concerns a written manuscript, I concede; if it concerns a book already made public,

I deny. This would have to be proved. And to the confirmation, I distinguish again: A book published by the writer is formally his speech to readers, I concede; a book published without the writer's consent, I deny.

Two things must especially be distinguished here: it is one thing to write something; it is another to communicate what has been written to others. These causes are distinct by their nature and consequences. Just as from the beginning I can write many things while thinking nothing about publication, so, after the work has been completed, I am able to cast aside the plan of publishing. Therefore, one who publishes a book without consulting the writer does not even always do what the writer at least wishes to be carried out either by himself or by another. Yet in order that there be the writer's speech to readers, it is necessary not only that he have written certain things, but also that he wish, in these circumstances, to hold discourse with readers concerning them. For every act of speaking, besides the thing thought, bespeaks a formal intention of speaking. Therefore, in reality, when the publisher is someone other than the writer, the publication of the book is never the business of the writer alone. For if he has made the work public with the writer's assent, the publisher, just as he comes into a share of the merit, so also must in part, apart from a special provision of law, take upon himself the disadvantages that will follow; but if he alone has done it, he alone will be responsible for these things, and no one will doubt that he acted in his own name and at his own risk.

The obvious comparison also makes for this. Is he who reports words spoken by another always judged to act in the latter's name? Why, therefore, should this management of business be ascribed to him who communicates another's writings?

You may add that too much is proved by this Kantian argument. For from it a perpetual privilege would have to be assigned to the writer; and he who now publishes Cicero, Aristotle, etc., would always have to be judged to conduct the business of those ancient authors.

To b), at first sight this easy distinction occurs: It is yours to define in what way and manner a thought of mind is to be made public, so long as you have not made it public, I concede; after you yourself have already disseminated it among the public, I deny. Otherwise, you could equally prohibit others from telling again a thing which you have narrated openly, from handing a book to others to read, from copying out a passage, etc.

4. FROM THE MERIT OF THE ONE WRITING THE BOOK.

He who writes a book deserves well of the republic. Therefore. He has a right to the wage which he will obtain by means of this monopoly.

Reply. I pass over the antecedent (for there would be need of a distinction). I deny the consequence. Deserving well of itself gives rise to a duty of gratitude, but not of strict justice.

250. Concerning the obligation of conscience. 1. Beyond what the laws establish, no prohibition can be pressed, at least from justice, whether of translating a book into another language, of publishing it again, or of imitating some invention. At least from justice, I say; for those practices often give a just cause of grief and sadness to the writer or inventor, so that charity can be gravely violated, for example, if someone is thereby cast down from a reasonable hope of gain, or if for some other reason he gravely objects to a work, sermon, etc., being committed to the press.

2. It is sufficiently agreed among theologians that a true right is attributed to authors by positive laws, so that he who acts against them is to be condemned as guilty of injustice and, without awaiting the judgment of a judge, must make good the loss caused by his own fraud.⁹ Nor is it in our mind to oppose their authority.

⁹ It is evident that this cannot be transferred to the legitimate penalties which are added.

3. They establish this, however, chiefly concerning the right of writers. For not a few pass over in silence patents (brevets) granted to inventors. Nor does the writer who thus prefers the cause of writers seem to us merely to be a Cicero pro domo [pleading for his own house]; but in reality a greater difficulty arises concerning the other privileges. For those inventors, relying upon the privilege, are accustomed greatly, indeed excessively, to increase the natural price of the thing, with the greatest inconvenience to many; and it is probable that they would impose even harsher conditions unless, through imitations or the fear of them, they were compelled to preserve some moderation. Therefore, in Holland itself, after the law of the year 1869, these privileges were suppressed for at least some time. Since these things are so, we judge it more difficult to demonstrate that a true right of property is constituted by a privilege of this kind; and perhaps not a few will excuse an attempt at imitation because there is reason for defending oneself against excessive demands. Therefore, concerning these matters, let each person consult in his own region the common interpretation of the law and the practice of conscientious persons.

4. This is certain: things which are openly sold—books, instruments, liquids, etc.—even if perhaps they were produced against the law of monopoly, can be bought by private persons without scruple. For that purchase is often not prohibited by law. And it would be too great a burden upon private persons if they were obliged to inquire into these things and to abstain from cooperation to which he who neglects his right seems tacitly to assent by his silence. And if, moreover, custom has tempered the rigor of the law, that custom can also be retained with a safe conscience.

251. Concerning the publication of a sermon or the lectures of some teacher, it seems that the same judgment must be made. Positive law being set aside, if the sermons or lectures were truly delivered in public, they can be committed to the press against the will of the teacher or orator without violation of the duty of justice, but often not likewise without violation of charity.

252. We judge that the same rationales are to be applied to the photographic representation of a person. It is open to you to remain hidden at home. But if you have offered yourself to be seen, you cannot at the same time restrain that use of your outward figure which demands no invasion of your person. Therefore, whether the lineaments of the body are made public in writing or by another means, no injury will of itself have been done to you, unless perhaps the method employed contains an unjust detraction. Again, however, the various inconveniences in this matter are to be met by laws.

253. You will ask what is the object of the right which the laws constitute for writers, etc.

That right has the rationale of a certain negative servitude imposed upon copies of a book, so that they are not employed by anyone other than the writer, etc., for a new edition. In this way it will inhere in the copies themselves and will be imperfect ownership.

It can also be judged to be the perfect ownership of some faculty: the faculty of selling a book, of making a thing, etc. For just as, besides the right of having something, there is a right of doing or omitting, so the “exclusive” right of doing something which has a temporal price participates in the rationale of true property. This rationale holds for any legal monopoly.