Copyright and patent (property in ideas)

379. By the name author is understood everyone who by his own talent invents something, of which sort is: a. one who has written a book; b. one who has composed a work of art, such as a musical rhythm or painting; c. one who has discovered a scientific theory, an art, a medical remedy, etc.

Rights of authors. 1. By natural right an author has perfect ownership in the thing which he himself invented before it has become of public right: for each one has a right in the fruits of his own talent; wherefore as true owner he can dispose concerning his own thing according to his choice.

a. Therefore he acts against justice and is bound to reparation of damage who publishes manuscripts against the will of the author, or who steals his secret from the inventor of an art.

b. Therefore he acts against justice who publishes in print, against the will of the author, the lecture of a professor or the sermon of an orator. Nor is the appeal to the fact valid for the contrary opinion, that public speeches either of preachers or of deputies in assemblies are printed in newspapers; for these things are done with the authors knowing and not contradicting. - But by that very fact that someone teaches publicly or preaches, the proposed doctrine becomes in some way of public right; therefore it cannot be impeded that hearers make it their own, use it according to opportunity, or write it out for their own private use and lend the writing to others.

2. In a work already published, the author retains ownership and the right of publishing the work further, but grants to all the use of the published work. For the author is judged to retain that right which from the nature of the thing he can retain, but to grant that which from the nature of the thing he ought to grant; but even after publication has been made he can retain ownership in his own work and the right of publishing the work further; and by that very fact that he publishes the work, he ought to grant its use to all who wish it and pay the owed price. - Besides, to each one naturally belongs the right in the fruits of his own work; but he cannot receive the fruits from his own work unless he retains ownership in the published work and the right of publishing it further.

a. There are those who say that the right of property and further publication in a work or invention already published is lost by the publication itself; and therefore, if the right belongs to the author or inventor of prohibiting that his work or invention be published by others, this is had not from natural law, but from positive law.¹ Although their opinion does not differ much from the proposed one, because they readily concede that a positive law of this kind is altogether consonant with natural equity, nevertheless it is more aptly affirmed that the right of property is indeed from nature, but in many things obscure and indeterminate and therefore must be declared and determined by positive law.²

b. Therefore he acts against the right of the author and publisher and is bound to reparation of damage who sees to it that a published work be printed again without the author consenting. - He who, without the knowledge of the author or publisher, sees to it that some work be printed and published in distant regions inflicts damage insofar as by this reason a greater profit of the author or bookseller is impeded, which can now happen more easily, with means of communication considered, than formerly. - To multiply a book or sheet by transcription for private use, whether for oneself or for another, provided the transcription is not published, is neither unjust nor illicit, because the buyer, by force of the ownership which he acquires in the published work, can dispose of it for his every advantage if the author suffers no damage from it; but from use of this kind the author morally suffers no damage.

c. Whether by natural right the right of impeding that the translation of his work into another language be published belongs to the author is not certainly established, because it is not established whether publication of the translation in reality harms the author and whether the profit which the translator receives exceeds the labor of translation. But positive laws almost everywhere reserve to the author the right of publishing a translation.

3. Civil laws which prohibit the work of some author from being printed without the consent of those whose interest it is, not even after his death unless a certain time has elapsed,³ or which reserve to the author the right of publishing a translation of his own work, oblige in conscience, since they constitute rights (n. 356).

¹ Among recent authors Vermeersch defends this opinion, Quaestiones de iustitia, n. 240 ss.

² Cf. Ballerini-Palmieri, III, n. 53.

³ C. A., laws for the protection of copyright, Section 13, according to which, thirty years after the death of the author have elapsed, his work can be printed by anyone.

Similarly, by the law of nature a book, design, or composition belongs to the author, and a new invention to the inventor. These things and others of the same kind are the fruit of the author’s or inventor’s thought and labour, and anyone who stole them and published them without their owner’s consent would commit a sin against justice.

Among modern civilized nations these rights are protected by municipal laws and international agreements, and, inasmuch as these determine the vague and uncertain prescriptions of the natural law, they bind in conscience.

The exclusive right of printing or otherwise multiplying copies of books, etc., is called in English law copyright. It extends not only to books, but to every volume, part, or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately printed; to engravings, prints, sculpture, models, busts, paintings, drawings, photographs, designs, dramatic and musical representations.

Copyright is protected throughout the British dominions and the principal countries of Europe, which form the Copyright Union. On certain conditions copyright is now protected in the United States of America, and foreign authors may acquire copyright within the States by complying with those. conditions.

English law grants copyright for the author’s natural life and for fifty years longer.

In the United States the original terms run for twenty-eight years; it may, however, be renewed for a further term of fourteen years, making forty-two years in all.

In the same way patent right, or the right of the inventor to reap the benefit of a new contrivance, is protected in England on certain conditions for fourteen years, which protection may be extended for a further period of seven or fourteen years if the inventor has not yet reaped the full benefit of his invention, and such patent is for the public benefit. The period to which patent right extends in the United States is seventeen years.

There is a controversy among theologians as to whether the natural law of itself forbids the reissue by another without the author’s consent of a book which has once been published. Some deny this on the ground that by being published, apart from the prescriptions of positive law, a book becomes public property, and anyone who buys a copy may make what use of it he pleases. He is merely disposing of what is his own. The contrary opinion, however, seems better grounded, for the author in publishing a book makes over indeed to the buyers of it certain advantages, but there is nothing to prevent him reserving the right of issuing it again to himself. The buyer of a copy may make the contents of the book his own and work them up again in any form of his own that he chooses; he buys the material part of the book, paper, binding, etc., and may make what use of them he pleases; but he does not purchase the right to issue the book again, and he violates justice if he does so against the author’s wish. The same holds with regard to patent right.

This controversy is of little practical importance, for sufficient protection is provided in most civilized countries by positive law.

Monopolies, however, are morally wrong when the prices demanded for necessary or useful articles of consumption are excessive, or when the methods of business are unjust, uncharitable, or generally unlawful. The prices will be excessive when much more than a fair return for the capital employed is obtained, after all the costs of production and distribution have been defrayed, and when as a natural consequence they are higher than would rule if there were no monopoly. When means are used to crush rivals in order to secure a monopoly, when bribery of public officials is practised to obtain from Government specially favourable laws or treatment, when discriminating rates are obtained from railways and other companies, when workmen are tyrannically and unjustly treated, when prices of raw material are unduly depressed and producers are robbed of a fair compensation for their toil and trouble, and in general, when fraud or force is used to accomplish the end in view, the methods of business are immoral, and monopolies which employ such methods are to be condemned.

If prices demanded by a monopoly are, in the estimation of prudent men, higher than are fair and reasonable, injustice is committed, and there is consequently an obligation to make restitution to the buyers who have been robbed. If the prices charged are not altogether unfair and unreasonable, but high, and above what in the circumstances would be considered moderate, there will be a sin committed against charity, in that private advantage has been unduly pursued to the detriment of the people, who have been compelled to pay higher prices for the enrichment of the monopolists.

From what has been said, it is clear that what are called “rings ” and “ corners” in wheat, cotton, and other such commodities, are morally wrong, in that they cause the financial ruin of many people, and produce wide distress and instability of trade. Trusts, too, and combinations in trade are full of danger for the community. They wield immense power, and the temptations to abuse it, especially as a company has no conscience, as the saying is, are too great for the common run of business men. It is well that the Government should have the right of examining and inspecting the affairs of such bodies, and of applying the necessary remedies in case of abuse.

To n. 875 ff. ON THE DOMINION OF AUTHORS

1. "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."

2. 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.

3. 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.

4. 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.

5. 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.

6. 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?

7. 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.

8. 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.

9. 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?

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

537. • Principles. I. Man has useful dominion of the goods which are intrinsic to him, namely of soul and body. Therefore he can, without injury to anyone, use them for his own utility, and for every use not prohibited by law.

Yet he does not have direct dominion of these goods. This is established from Sacred Scripture; thus Wisd. 16. 13: "You are, O Lord, who have power of life and death." - Likewise Deut. 32. 39: "I shall kill, and I shall make alive." - It is also established from natural law, as we said where treating of the fifth precept of the Decalogue, n. 389 and following.

538. • II. Man can have useful and direct dominion in external goods of fortune legitimately acquired. This is established, 1. as to useful dominion, because on the one hand these goods are of themselves apt for promoting the preservation or utility of man, and on the other hand the use of them is not opposed to divine and human right; indeed God Himself permitted at least the utility of the aforesaid goods by these words, Gen. 1. 28: "Have dominion over the fishes of the sea and the birds of the air," etc. - And Ps. 8. 8: "You have subjected all things under his feet." - It is established, 2. as to direct dominion, because the faculty of applying goods of fortune to one's own uses is restricted by no right; indeed it is expressly permitted by human right, as is clear from the various laws concerning the right of possessing, and by divine right in the words cited: "Have dominion," etc.

539. • Questions. Q. 1. Whether man has dominion of his own reputation?

Resp. Affirmatively, according to the common opinion; for even concerning reputation there belong to man the primary acts of dominion, such as to acquire it by labor, to condone restitution of it, etc. Therefore... Yet prudence requires that he not squander it without just reason, and sometimes he is bound under grave sin to preserve it carefully by reason of scandal, of removing harm to the family, etc. - St. Lig., lib. 3, n. 983. - Billuart, diss. 3, art. 2.

Q. 2. Whether man can have dominion over another man?

Resp. 1. Negatively, as to dominion of property; for that belongs to God alone, as is established from what has been said, n. 522.

Resp. 2. Affirmatively, as to useful dominion, or the works of man. The reason is that any man is master of his own work, and therefore he can alienate it for his own utility and hand it over into the dominion of another. For a master can dispose at will of the object of his dominion.

Hence 1. by natural right a man can even sell himself to another forever as to useful dominion. For if he can confer upon another the useful dominion of himself for some time, he can do the same forever, since he can yield whatever he has. 2. Per se servitude is not repugnant to the law of nature, or the state of perpetual subjection by which someone, in exchange for food, is bound to furnish all his works to another.

540. • Q. 3. From what titles can servitude be introduced?

Resp. From the four following titles: 1. From pact, or one's own renunciation. For it is not repugnant that someone renounce his liberty in order to relieve his own need, etc. - 2. From the right of war. For it is not repugnant that the victor should sometimes inflict this punishment. For sometimes he could kill captives for the security of the nation; therefore, a fortiori, reduce them to servitude. - 3. From an offense, or from just condemnation. For if a guilty person can be condemned to death, a fortiori to servitude, since deprivation of life is deservedly considered the greatest of all punishments. - 4. From birth in a state of servitude, since by law they are slaves who are born of slaves. Thus according to the law of nations, in accordance with the common opinion. - Lugo, disp. 6, n. 11 and 17.

541. • Q. 4. Whether the trade in Negroes is lawful?

Resp. 1. It is altogether unlawful by every right, as often as Negroes are unjustly despoiled of liberty, and are transported in bands from their own regions as cheap cattle, and are sold, as happens in their nefarious trade (Traites des Nègres). Against so monstrous a trade there have come forth various Apostolic Constitutions, namely of Paul III, Urban VIII, Benedict XIV, and lately Gregory XVI, in the Constitution In supremo apostolatus, December 3, 1839, as may be seen in the public sheet called Ami de la Religion, tom. 103, n. 3219.

Resp. 2. But if it is a matter of Black persons or others existing in legitimate servitude, it is not per se absolutely unlawful, because once servitude has been admitted as legitimate, the master has a true right in slaves, or in their works, and therefore is able to transmit it to others. I said, per se; for circumstances can stand in the way, for example, if a spouse would have to be separated from a spouse, or if civil laws forbid it, just as in reality servitude is generally interdicted in Europe.

566. • It is certain that any man by natural right has a right in the fruit of his industry and of his talent. For if a thing fructifies for the owner, a fortiori this ought to be true of internal faculties, since nothing can be more proper to man. Therefore anyone can use for his own advantage those things which he has devised by his talent in the sciences. Therefore the inventor of some art has a strict right that his secret not be stolen and, against his will, be published in public; and if this happens, the one causing damage is altogether bound to restitution according to the measure of the injury inflicted. But the difficulty is whether an author, once his works have been emitted into the light, can preserve them as proper to himself, and exclude others from the use of them ¹. Hence:

¹ Understand "from the use" which the Author of the work reserves for himself; what sort this is is gathered from the following questions.

567. • Questions. Q. 1. Whether he violates another's right who publishes a manuscript work in print without the author's consent?

Resp. Affirmatively. For this is openly repugnant to natural right; and among all it is established that as long as the work has not been emitted into the light, it remains entirely under the dominion of the author. Therefore there is no doubt that such a usurper is bound to restitution and to compensation for damages. - Carrière, n. 61.

Q. 2. What must be said of him who would publish in print the public lectures of some professor, or the sermon of an orator?

Resp. One must respond as in the preceding question. For to teach publicly or to preach is not to hand over one's work to another for publishing and selling. Thus judged the Tribunal of Appeals of Paris, February 28, 1801. - See Carrière, n. 61.

568. • Q. 3. Whether he who has published a book in print has the right of preventing anyone from committing it to the press and selling it with damage to the author or to the bookseller to whom the author transmitted his right?

Resp. 1. Affirmatively, by positive right in force in France and in most other places.

Resp. 2. If it is a matter of natural right, it is disputed. More probably it seems that an author does not have a perpetual right in his work, because a thing once handed over to the community becomes by that very fact of common right ². Yet it is consonant with equity that by positive right some privilege be granted to the author for a certain time, or for his life.

² This reason perhaps would prove that it is lawful for anyone to take harvests or grapes for himself at will, because the owner of the field or vineyard cannot guard them. Certainly if the law of nature itself requires that to each one there be preserved his right in the fruit of his industry and talent, as was set down beforehand (n. 566), and no fruit of industry in our matter can be received unless the work is handed over, as they say, to the community, surely the same law of nature requires that this handing over or publishing of the work to the community not deprive the author of the fruit of his industry.

Q. 4. Whether a recently published book can be committed to type in a neighboring kingdom without the author's permission?

Resp. It seems more probably that one must affirm, because the author by natural right can claim no certain right ³, and therefore cannot complain of violated strict dominion. The same must be said of the inventors of various arts. - Thus Carrière, ibid., etc. Moreover, in many places provision has been made excellently by treaties admitted among various dominions, by force of which the author can enjoy the same right elsewhere as in his own fatherland.

³ This general assertion likewise is repugnant to the principle which was established as certain in n. 566. For this reason the agreement of diverse republics is especially congruent with natural right, so that privileges granted anywhere to authors may also be preserved elsewhere. If this agreement is not admitted somewhere, the sanction of a violated duty will indeed be lacking there, but not the duty altogether. Nevertheless, since the publication of books in very distant regions less impedes the author from receiving a suitable fruit of his industry, that principle established above seems to press less as regards them.

38. Besides the goods of body and soul, and also one's own reputation, man is able to make his own the products of his talent. Under this name come: books published by authors; paintings or other artistic works; various inventions by which the industrial arts are advanced, etc.

¹ Lugo, disp. XXVI, n. 171; Carriere, n. 55-62; Marres, l. I, n. 23-25; Lehmkuhl, n. 904-905; Meyer, II, n. 213-216; Ball. P., n. 53; Vermeersch, n. 246-253.

39. 1. What is certain. Now all concede that any man has full dominion over the fruits of his talent, so long as he has not made them public property: for nothing can be more proper to us than what we acquire by the labor of our own mind; and indeed, if external things bear fruit for the owner, much more do internal faculties, which immediately flow from our essence. Therefore he who would steal the manuscripts or inventions of another, and publish them, without the permission of the author, would sin against justice and would be bound to repair damages; for he violates the double right which belongs to the author, that the work written by him not be published against his will, and that the profit to be received from it not be diminished.

For the same reason, he who would take down in writing sermons or lectures heard, and make them public property, without the explicit or tacit permission of the preacher or professor, injures justice and is bound to restitution: for although he can use these for his own use, he cannot publish the same things. Nevertheless implicit permission suffices, which rests upon legitimate custom: thus many sermons are commonly published in periodicals without the explicit consent of the speaker.

40. 2. What is disputed? - But when a book has already been printed, or an invention has been made public property, it is controverted whether by natural right the author or inventor is able to prohibit others from committing the book to the press again or multiplying the thing invented. (a) Some deny this, because a work once published now becomes a common good, which can licitly be occupied by all. (b) Theologians, however, commonly affirm it; for natural right forbids anyone to be despoiled of the fruits of his own labor; but the author of a book or invention could not receive the fruit of his labor, if it were permitted to each one to print and sell anew a book published by another, or to spread the inventions of others, without any compensation; therefore natural right forbids this.

41. 3. Practical conclusion. Nevertheless all admit that nothing certain is defined by natural right as to the time during which an author or inventor can exclusively enjoy his own works. Therefore it is necessary that positive right intervene to determine the matter more accurately. This in fact has been done among all cultivated Nations; and since laws concerning literary and industrial property are determinative of rights, they oblige in conscience, in justice and under the burden of restitution. Likewise, where international agreements exist, these have the force of law.

Now an agreement of this kind was entered into on September 9, 1886, among the principal cultivated nations, by force of which authors who have published books according to the law in force in their own region enjoy the right of property in all regions which have adhered to this agreement.

42. In France, writers who have sent two copies of the books published by them to the legitimate authorities enjoy the exclusive right of selling these throughout their whole life, and their heirs for fifty years.¹ - With regard to inventions, those who, according to the forms determined by law, have obtained the diploma which is called Brevet d'invention, can enjoy the right of property for fifteen years.²

¹ Lyon-Caen and Delalain, Lois francaises et etrangeres sur la propriete litteraire et artistique, Paris, 1889-1890; Pouillet, Traite theorique et pratique de la propriete litteraire, Paris, 8th ed. 1889; Supplement for France, p. 1*-4*.

² Pouillet, Traite theorique et pratique des Brevets d'invention, 2nd ed., Paris, 1879; Supplement for France, p. 4*-7*.

We shall set forth in the Supplement the civil law in force among other nations.

8. Principle 3. Man has dominion over the offspring of his own intellect and industry, according as, however, it has been determined by individual civil laws.

The offspring of intellect are: books published by an author, images, musical rhythm, medicinal remedies newly invented, and other artifacts made by an artisan. All indeed teach that it is pure and putrid theft if someone secretly takes away from another manuscripts or artifacts or inventions not yet made matters of public right, because the legitimate owner is reasonably unwilling on account of grave damage and grave injury brought against him. But when a manuscript has already been printed, or if an invention (commonly, Patent) has already been divulged, theologians dispute whether a new printing of the book made without the author's permission or imitation of the invention is against natural right and obliges to restitution. Some deny this, because a work once published already becomes a common good, which can licitly be occupied by all;⁴³ but the more common and truer opinion affirms it, yet with the restrictions indicated by positive law. And indeed it seems to be a great injury that he who perhaps with hard labors wrote a book, or invented something new, should be frustrated of the fruits of his labors because another publishes the book again or makes an imitation of the invention. Nevertheless, from another side, it would be very harmful to the common good if the publication and imitation of such works remained reserved forever. Wherefore it is necessary that positive laws indeed protect the rights of the author, but also limit them; and thus in fact it has been done among all cultivated nations. Indeed, concerning this matter there exist international pacts among several nations. Already in the year 1886 at Bern in Switzerland such a pact was entered into among some nations, and it was augmented at Paris in the year 1896. But afterward certain nations entered into still special pacts.⁴⁴

Things To Be Noted For Practice. Since natural right does not have special determinations concerning the dominion of authors, and since the determinations of diverse civil laws seem sufficiently just and constitute true rights, they also oblige in conscience, and transgressions induce not only sin but also the obligation of restitution, if the true owner has suffered grave and certain damage. Thus is the opinion today more common. In practice the quantity of restitution can be determined with difficulty, because it is almost impossible to weigh the damage which the author has suffered. Lehmkuhl writes to the matter: "He is held to that restitution which the judge will have defined, if he is called into law. If the author is unwilling to pursue the matter in judgment, and nevertheless does not renounce restitution, that must be restored to the author and publisher in which, according to equitable estimation, they have suffered damage or have been defrauded of profit."⁴⁵

It must be noted that sometimes restitution must be made not only to the inventor but also to buyers. For example, someone has produced a liquor similar to the very celebrated liquor commonly called "Chartreuse" and sells it as true "Chartreuse." In this case the damages brought must be repaired: 1. to the legitimate proprietors producing true "Chartreuse"; 2. to all those who bought false "Chartreuse" in error, since that false liquor has much less value than true liquor, and besides perhaps diminished the health of those drinking it. Since the buyers for the most part are unknown, something must be given in their place to the poor or to pious causes. But how much and how it must be restored can hardly be defined easily. The falsifier does not deserve great indulgence. If he has been detected, even by civil law itself he is most gravely punished and is held to pay the imposed penalty. But if he has not been caught by the civil judge, nevertheless there falls upon him the moral obligation of repairing the damages. Perhaps restitution can then be made in this way: after deducting the expenses which the adulterator made in the fabrication of the thing, let him divide the whole profit into two parts, of which let him expend one upon pious causes, but restore the other to the legitimate proprietor producing it. Thus, saving a better opinion and with circumstances altogether particular, sometimes occurring, set aside.

Often the permission of the author can be presumed for publishing small articles published by him or for transcribing music for private use; the same is valid concerning translations into another language, provided nevertheless that it is a matter of lesser moment. For thus common usage bears. But many authors in these cases require that it be indicated by the translator or new publisher whence he took the written article. But if it is a matter of translations of greater moment, for example of an entire book, then the permission of the author or publisher cannot be presumed, and therefore such an illegitimate translator must be treated in the confessional almost as was said above concerning an illegitimate publisher.

⁴³ Thus especially Bucceroni, Theol. mor. I, n. 878; somewhat also Morres, De iust. I, n. 24; Vermeersch, De iust. n. 246 sqq.

⁴⁴ Cf. Herders Konversations-Lex., s. v. "Urheberrecht."

⁴⁵ Casus consc. I, n. 580.

598. • Quaer. 3° Whether and by what right does man have dominion in the fruits of his industry and talent?

Resp. In the affirmative, and indeed 1° by natural right. For if a thing bears fruit for the owner, a fortiori this must be true of internal faculties, since nothing can be more proper to man.

Hence a) it is certain that both he who steals from the inventor of some art, for example whose machine has not yet been handed over to commerce, his secret and divulges it publicly against his will; and he who prints the manuscript work of another, are bound to restitution and compensation of damages; for a work remains under the dominion of the author or inventor as long as it has not been given to public use.

b) It is disputed whether he who has printed a book has, positive law being set aside, the right of impeding lest anyone commit it to the press and sell it with damage to the author or bookseller to whom the author has transmitted his right. Those who deny bring forward this reason for their denial: that a thing handed over to the community, as a book published in print is, by that very fact becomes of common right, and for the same reason neither would those be guilty of injustice who brought to light the public lectures of some professor or the sermon of an orator. Those who affirm respond to the reason of those denying: the natural right which all attribute to the author in the fruit of his talent cannot be exercised by him unless he hand over this fruit to the community; and therefore it is absurd to say that that right is lost through that very thing without which it cannot be exercised. Practically, this question is of lesser moment; for usage today everywhere has it that works published in print are committed to the press and sold by others in the case in which either the author neglected to do those things which are required by positive law in order to provide for himself, or positive law does not assist him, whether because it does not sanction the property of some genus of books, or because it denies its protection to books edited in another region.

Resp. 2° In the affirmative, also by the positive law of almost all nations. And indeed by a law passed by Congress among us provision is made that one who wishes to claim as proper to himself the right of a thing invented by himself (Patent right) deposit a model in the public office (Patent-office) at Washington. But one who wishes to have the right of publishing his own books (copyright) ought to deposit a copy in the public office of the librarian of Congress in the same city, and on the title page of the book committed to type, or on the page immediately following the title page, to state it in the following words: "Entered, according to Act of Congress, in the year by N., in the office of the librarian of Congress at Washington." He who desires to know more should go to Kent,¹ or Wells's Every Man his own Lawyer,² or New Amer. Encycl.³

If someone violates a privilege of this kind, a civil action is given against him. But although the inventor, or author or bookseller to whom the privilege belongs, does not bring a lawsuit, nevertheless the violator is bound in conscience to repair the damage inflicted on them. The same seems to be said whenever someone, by a certain change of a new machine or book, renders the force of the law and privilege void.¹

191. Notions. - Under the name of author comes everyone who by his own genius discovers something: of this kind is he who has written a book, who has composed a work of art, a musical rhythm, a painting, who has made an invention by which the industrial arts are advanced. Concerning him it is asked whether and how far he has dominion over his works or inventions.

192. Principles. - I. Each one has full dominion in the thing and fruits of his own genius, as long as he has not made them public, because he acquired them by his own labor; whence:

1. He who steals and publishes the manuscripts or inventions of another without the author's permission sins against justice and is bound to repair damages, because he injures the author's right in two ways, while he publishes his work against his will, and deprives him of the profit to be perceived from it.

2. Similarly, he injures justice and is bound to restitution who takes down in writing sermons or lectures which he has heard and makes them public and publishes them without the explicit or implicit permission of the preacher or professor, such as can be supposed from received custom, for example, for the reporting of sermons in newspapers.

3. Yet by the very fact that someone publicly teaches or preaches, the doctrine proposed becomes in some way public; therefore he cannot impede the hearers from making it their own, using it as occasion offers, or writing it down for their own private use and even lending the writing to others.

II. When the work has already been published or the invention made public, the author seems to preserve dominion and the right of receiving the fruits of the work.

For although some hold a published work as a common good, which can licitly be occupied by all, especially after the first edition or in a distant region or as to translations; nevertheless the author is judged to retain the right which from the nature of the thing he can retain, as it is equitable that he not be deprived of the fruit of his labor: by publishing he indeed concedes use to all paying the price, and beyond this he intends to preserve his own right, namely, dominion of the work, the right of receiving fruits, and the right of further publishing.

III. How far the author's right extends in place and time cannot be determined from the nature of things alone, but only from the estimation of prudent persons, especially from the intervention of national and international legislation.

In reality, civil authority - as is beyond all doubt and controversy - can and at times must establish concerning the rights of authors, both for delimiting and protecting the diverse rights of citizens, and by reason of the common good, which is much assisted by works of the sciences and arts and by inventions of industry.

193. Positive law. - Among cultivated nations everywhere the right of authors and inventors has been determined more precisely by law. Thus, certain conditions being fulfilled, the right of writers endures during their whole life. Moreover, in Belgium, for example, it is reserved to the heirs for 50 years after the death of the writer, or if the work is posthumous; but if the author is anonymous, the publisher is reputed as such in relation to others (law of March 22, 1886). In France likewise for 50 years after the death of the author; in Spain for 80 years; likewise in the Netherlands for 50 years after the death of the author, or if it is anonymous, after the edition; but after 10 years translations can be made into other languages, except those into which the author has conceded translation; in America, for 28 years, but then it can be prolonged; in Italy for 40 years after the first edition, so that for another 40 years following there is owed 5% of the price inscribed on copies; in Switzerland for 30 years after the death of the writer, and in Germany now for 50 years; in England 7 years after death or 42 years after the first edition. Moreover, an international pact is in force, namely, the Bern Convention of Sept. 9, 1886, which was completed at Berlin on Nov. 13, 1908, and at Rome on June 2, 1928, by which it happens that authors enjoy the same right outside their fatherland among other nations.

For inventions, the monopoly of the inventor in Belgium endures for 20 years (law of May 24, 1854); in the Netherlands for 15 years; likewise in France it can endure for 15 years. And there are international conventions concerning this matter, made at Paris on March 20, 1883, at Brussels on Dec. 14, 1900, in Washington on June 2, 1911, and at The Hague on Nov. 6, 1925; and at Bern the International Office was instituted, March 20, 1914.

Titius reads in a certain newspaper that a new edition has been published in the United States of America of a certain book written some years before by an English bishop and published in London. The said bishop, however, complained that his permission had not been sought for the book to be published anew, and indeed that the edition had been made contrary to literary honesty and courtesy. Titius therefore asked a certain theologian whether it was also contrary to moral honesty and justice. Hence it is asked:

1. Is there from the law of nature an exclusive right to publish one’s own book again?

2. If municipal law grants that right to the author, does it pertain to conscience not to violate the law?

3. What kind of right is granted by English law in this matter and by the law of the United States?

4. What is to be said of the case?

1. Is copyright of natural law?

It is a disputed point whether copyright, i.e., the exclusive right to multiply copies of a book, belongs to natural or positive law. All agree that until the book has been published the complete ownership of it belongs to the author, and that anyone who deprives him of it against his will commits theft. After publication some authorities hold that as far as the law of nature goes anyone who buys a copy may make what use of it he pleases, and may even issue it again without the author’s permission if he chooses to do so. He is merely making use of his own property. Others, however, affirm that by the law of nature an author may reserve to himself the right of re-issuing his book, while he publishes and sells it to buyers for all other purposes. This is the better opinion.¹

1 Manual of Moral Theology, vol. i, p. 346.

2. If the civil law protects copyright, is it matter of conscience not to infringe it ?

Yes, for the case is one in which positive law determines what is at least suggested by the law of nature, and what is in entire agreement with its dictates.²

2 The same work, p. 126.

3. What is the law of copyright in England and in the United States?

In England the law protects copyright for the author's life and for seven years more, or for forty-two years, if this period is longer than the former. In the United States the original term runs for twenty-eight years, but it may be renewed for a further period of fourteen years. A foreign author may obtain copyright in the United States provided that the book is produced in the United States from type set up there or from plates manufactured there.

4. The case. The English bishop in the case certainly had grounds for complaining that his book had been issued in America without his permission. As is clear from the answers given above, it is not absolutely certain that the act was also against honesty and justice, for we must suppose that the bishop had not fulfilled the conditions for acquiring copyright in the United States.