IV.
“The property of an invention having required for its creation the same labour as that of the soil, and this work offering less chance of success and results of probable less duration, it is as legitimate at least as landed property,” says M. le Hardy de Beaulieu; “and there is no argument against it which may not be applied with equal force to the individual and permanent occupation of the soil.”
The soil, to render all the productions that the community has a right to expect from it, ought to become and remain a personal individual property. Invention, on the other hand, cannot give all the results that society can draw from it, unless it be public property.
Herein lies the immense and irreconcilable difference between property in land and that of invention. Besides, land cannot become unfertile, unproductive, or lose all its value as property, except by some convulsion of nature which would deeply unsettle it. An invention, on the contrary, may become quite valueless in ten years, one year, a fortnight even, after being discovered, and that by the superiority of a subsequent invention.
What becomes, then, of the property of this invention? What is its worth? Has the inventor a right to damages?
If you construct near my field a factory from which escape noxious vapours, hurtful to vegetation, and if I can show that you have deteriorated or destroyed my crops, you, according to the laws of every civilised nation, owe me damages; would you claim damages of the inventor, whose discovery had rendered that of one of his predecessors partially or completely unproductive? If property in invention is equal to property in the soil, damages are incontestably due. We do not think that a single advocate for this class of property has, however, dared to carry his logic thus far.
The proprietor of a field may leave it uncultivated, the proprietor of a house may leave it shut up as long as he likes; no law obliges to put in a tenant, or to open it for lodgers. The laws of all countries contain, with slight modifications, the following clause, quoted from Art. 32 of the Law of 1844:—“Will be deprived of all his rights ... the patentee who shall not have commenced the working of his discovery or invention in France within two years, dating from the day of the signature of the Patent, or who shall have ceased working it during two consecutive years, unless that, in one or other case, he can satisfactorily explain the causes of his inaction.”
It would be very easy for us to cite other differences in the nature of these two classes of property; we shall only refer to one more, which points out how solid is the property in land, and how uncertain and ephemeral the so-called property of invention. Land, considered as property, increases in value from day to day; there is no invention whose value does not diminish daily.
M. le Hardy de Beaulieu further adds, that “the inventor, in taking exclusive possession of his idea, harms no one, since he leaves all which previously existed in the same condition in which he found it, without in any way lessening the social capital on which he drew.” We should require, however, to come to an understanding as to what may be called the social capital; for if the exclusive property of invention had existed from the germination of the idea which led to the construction of the first hut to the making of the earliest weapons, tools, and furniture, it is difficult to know where we should find it. By putting property in invention on the same footing as property in the soil, all that man uses or consumes would belong to the descendants of the first inventors, and every one would require to pay a sort of rent for its use. The inventor of the wheelbarrow would have to pay a royalty to the inventor of wheels, and the maker of the plainest pump would pay an annual rent to the inventor of the lever or piston; there would not, there could not, be any social capital.
But it is wrong to say that the exclusive possession of an idea hurts no one, because it leaves what previously existed in the same condition. I, or my neighbour, might put together ideas to form the basis of an invention; this faculty of combination belongs to each of us; with exclusive possession it belongs only to one. It cannot be said, then, that no one is hurt, and that everything remains in the same position.
After having said that the property of invention is in every respect similar to property in the soil, M. le Hardy de Beaulieu places, nevertheless, boundaries to the extent and duration of the first. He says: “It is not meant precisely that property in an invention ought to extend over the globe, nor that its duration should have no limit in time; all property, in fact, is bounded by the cost of preservation, maintenance, and working, which it requires, already, long before the limit of space or time when the produce of the property no longer covers the expense, the proprietor does not require to defend it against seizure, and from that time it becomes public property.”
It follows that property of invention is not identical with property in land or other material objects. A diamond which belongs to me in any corner of the globe, the cotton stuffs which I have sent to Bombay or Saïgor, are still my property until I have voluntarily ceded them. My descendants, or those of some rightful owner, will cultivate in four or five hundred years or more the field which I may now possess. There is no limit of time nor of space for real property; it remains for ever.