ON THE DISTINCTION BETWEEN COPYRIGHT AND PATENT-RIGHT.
The following is reproduced under a conviction formed by hearing, in the recent debate, so much stress laid on the resemblance of Patent-right to Copyright, that superficial views are very generally held and require to be met:—
Extract from “The Patent Question under Free-Trade,” 1863.
We may now, in order to clear away what has been to some a stumbling-block—the argument from analogy founded on the case of literary property—notice certain distinctions between the subjects respectively of Patent-right and Copyright. Those things that belong to the province of Patent-right are in their nature capable of being independently discovered or originated, in the same identical form, by a plurality of persons. Of this character are the principles of mechanism, processes of manufacture, and forms or methods accordant thereto. Such, indeed, are, as a rule, actually discovered or invented by several persons, and this very often almost simultaneously. It is otherwise with things that belong to the province of Copyright—literary and artistic combinations, books, pictures, musical compositions, involving any degree of elaboration. Such, at no interval of time, have ever been produced by even one other person except a copyist.
This ground for differential treatment is connected with others. In particular, the literary or artistic compositions of any person are perfectly distinguishable from all those of every other. Hence the Copyright privilege is conceded in the absolute certainty that the grantee is their true and only originator, or first producer or creator. No second person can come forward, after the Copyright privilege is secured to an author or artist, and allege that the poem or picture he composed also. To infringe Copyright means to slavishly or meanly copy the work of another. To constitute infringement it is not sufficient that the second person’s book has the same subject and the same purpose in view, and is written in the same spirit as the first; the “matter” must be the same, and in the same form. And so with pictures, the subjects may be the same; the ideas may show great correspondence. Exactness of “matter” and of arrangement is everything. Patent-right, on the contrary, may be infringed where there is no such exactness, and no copying whatever, but complete originality. Disregarding form, it forbids the embodiment and use of ideas, even of ideas entirely one’s own.
We have thus the inconsistency, or paradox, that the exclusive privileges which have for their province only material objects—which engage only our bodily frame and those senses merely that have their exercise on matter apart from mind (and this is all that patentable inventions do)—carry prohibition into the region of ideas; while those other exclusive privileges, in whose province matter serves only as a vehicle or excitant of things immaterial—conceptions, memories, tastes, emotions—and as an instrument to set the mind a-working and affect the higher senses and faculties—make no such incursions, keeping entirely clear of interference with any man’s practical use of ideas.
Literary and artistic Copyright has for its province visible, tangible works, intended only for the eye or the ear, or inner man through these senses—objects to be looked upon, listened to, thought of; not things to be worked with or employed, nor things consumable, nor mere modes of doing a thing, like the subjects of Patent-right. It has no regard to processes, operations, implements. Therefore, unlike Patent-right, it interferes not with manufacturers, artisans, miners, farmers, shipping. Its sphere is in finished productions, works of art in their completed state—objects that are permanent and unmistakable. Infringements, therefore, are necessarily both manifest and of set purpose, whereas infringements of Patent-right are often doubtful, even when the subjects or results can be exhibited, and when the facts of the case are assented to by all parties; and if it is a question of processes, its infringements are often undetectable after the fleeting moment during which they are alleged to have taken place. Further, as before said, contraventions of Patent-right may be, and not unfrequently are, done unconsciously or unwittingly.