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.
V.
The whole history of humanity protests against this assertion of M.
le Hardy de Beaulieu, that inventions “being realisable only on the
condition of a just remuneration, sufficient for the exceptional work
which they require, and of a compensation in proportion to the risks they
cause, property in them, which alone can assure this remuneration and
this compensation, is necessary.” Let us remark, first, that by a just
and sufficient remuneration he probably means a special, exceptional, and
exclusive one.
We will now ask it to be observed that man’s most indispensable and
useful tools were invented, and were everywhere in daily use, many years
or centuries before there was any question of property of invention. We
shall only cite the hammer, the file, the saw, the screw, the pincers,
the plough, spades, needles, &c.
Did any of the inventors of these tools take out a Patent? Did he who
first put a shoe on a horse claim a property in the idea?
All the great inventions, with the exception of a few of the most modern,
and for which it was not possible to take a Patent, date from the
earliest times. Who, then, invented the art of smelting the ores of iron,
copper, lead, and tin? of making malleable iron and steel? When did man
first invent the manufacture of glass, of pottery, porcelain, paper, ink,
boats, and carriages?
Railways existed in a rudimentary state in the coal mines of
Northumberland and Durham long before Patents were dreamed of. Printing
and gunpowder appeared in the world without the guarantee of Patents;
so also with the tanning of hides, the spinning of thread, weaving,
dyeing, printing, &c. The electric telegraph is the result of a series of
studies, and of the social capital of knowledge which these studies, and
others foreign to the object as it were, have formed. Patents or rewards
which have since been granted only concern modifications, more or less
ingenious, of the original principle.
For what are inventors now doing? Without seeking in any way to detract
from the merit of their labours, we may boldly assert that they modify in
a profitable and economical way the older processes; instead of welding
iron, they roll it; instead of the cold, they use the hot blast, in
smelting.
To the tanning of hides they add currying, shamming, graining, polishing,
&c. Are these services which cannot be sufficiently rewarded in the
free working of the idea? Are they services which exceed by a hundred
cubits those rendered by great manufacturers, large capitalists, intrepid
seamen, or profound thinkers? And if, carrying out the argument of M. le
Hardy de Beaulieu, we should say, credit being necessary to the progress
of the community, and being realisable only on condition of a just and
ample remuneration for the exceptional labour which it requires, and of
a recompense proportionate with the risks incurred, the community ought
to grant to the bankers exceptional rewards, or assure to them a special
and perpetual privilege,—should we not be going on the premisses of the
learned Belgian Professor?
No doubt that branch of credit, the issue of notes, is at present allowed
in many countries to the great privileged banks; but may not the same
arguments apply to discount, the receiving of deposits, quite as well as
to the issue of notes?
VI.
To admit, with M. le Hardy de Beaulieu, “that the rights of inventors
are useful even to non-inventors,” we must allow that the progress of
invention would be stopped if the privileges guaranteed by Patents
were withdrawn. Now, we have already said that all human history up to
a very recent period demonstrates the weakness of the assertion. Man
has invented from the time he began to think and compare, and he will
continue to invent while he exists on this planet. Invention is nothing
else than thought.
If, as M. le Hardy de Beaulieu says—but which we doubt—there be no
fear that property in invention allows the inventor to exact for his
services a higher price than they are worth, neither need it be feared
that the absence of this right of property would hinder the inventor
from obtaining by his discovery all the profit which he has a right to
expect from it. This fear would only be justified in the event of his
being deprived by law of the right of using his own discovery. Now, this
right remains intact; only it is not exclusive. If the inventor saves
labour or outlay, the inventor will profit by this saving, like his
neighbours; he will profit by it before his neighbours; he will profit by
it exclusively so long as he can keep his secret, and while his opponents
are establishing rival works on the same principle.
M. le Hardy de Beaulieu tells us that the inventor can never take
advantage of his property to hold an unjust and injurious monopoly.
We will quote one example of a thousand from M. Louis Reybaud’s excellent
work on wool. Speaking of the wool-carding machines, the learned
Academician thus writes: “There may be cited twenty names engaged
in these discoveries, incomplete as a whole, almost all fortunate
in some detail. What is incomplete is laid aside, what is fortunate
is so much gain; the new comers discriminate and choose. After a
period of twenty years there are only three processes in use—those of
Leister, Hellsmann, and Hubner; of analogous merit, and each having its
partisans. Will they strive one with another? No, they compromised. M.
Holden gets the assignment, and also acquires, either by purchase or
by judicial decisions, the rights of Donisthorpe, Noble, and Croft.
Messrs. Schlumberger and Co., the assignees of Heilman, retain only
the manufacture of certain machines. We may imagine the wealth of a
business established on so many purchases and decisions. M. Holden has
added inventions of his own, and _he may be considered the master of
wool-carding until his Patents expire_. Nothing is more interesting
than the answers he gave on this subject before the Commission on the
Commercial Treaties. On his own avowal he is proprietor of 45 Patents,
28 taken by himself, and 17 purchased from others. In these 45 are good,
middling, and bad. He works them all _in obedience to the law_ and _to
guard against lapses_. In the bad, as well as the good, there is an idea
to defend and a chance of upsetting; he fears that in abandoning them
they might be used against him; _for one machine in constant use there
are forty-four which make a pretence of working; he does not hide it—it
is his interest to hinder, as much as to work_.
What would it be if, as it is demanded, property in invention, put on the
same footing with property in the land, were perpetual? By the present
system it may be the interest of one man to fetter improvement, and,
having acquired the mastery of it, to mortally wound it wherever it
appears! Is this not already too much the case?
Must we, then, repeat what reason and experience teach us, that unjust
exactions cannot be made under a system of open competition, but always
spring up under the shelter of privilege?
VII.
The eminent Professor of the “Musée de l’Industrie Belge” makes a just
and well-founded criticism on the diverse laws of different countries
relating to Patents. Usually law-makers do not appear so perplexed, nor
contradict themselves so frankly; this is because, when we forget what
is right, when we leave principles to make a legal caprice, we sail over
unknown seas, where no lighthouse guides us, nor compass shows us the
right direction.
He attributes to the defective state of these laws “the almost unanimous
censure displayed either against the legislation or against property in
inventions.”
Would it not be more reasonable to acknowledge that if the learned
law-makers of the numerous countries in which the principle of property
in inventions has been adopted have not been able to frame laws capable
of protecting the rights of pretended proprietors conjointly with those
of individuals and society at large, it is because the principle is
radically wrong, and contrary to the general interests of mankind? The
law-giver finds an obstacle at every side in legitimate scruples; he
fears to give too much, and he fears to take too much.
At present the censure is almost unanimous, it is acknowledged. Let us
suppose that property in invention were abolished, and what complaints
would result from the abolition? Few or none. When the inventor knew
that, placed on the same level as all other workers, he must only rely
on his intelligence, his capital, his time, and his right arm he would
leave off claiming a privilege and complaining of the insufficiency of
his rewards. At present the inventor says to the State: “I have found
out a great thing, but I require your protection; you must place at my
disposal your agents and your law-courts; the first shall enter the homes
of my fellow-citizens, shall search their drawers, examine their books
and papers, in my interest. By the second, their cause being lost, shall
be condemned to ruin and misery. I am about to bring ruin on such and
such manufacturers, to condemn a crowd of work-people to idleness; but
you must grant me a privilege which will place me beyond the reach of
all opposition, and allow me to make a fortune, quietly and without much
chance of a failure.”
What difference do the champions of Patents find between this language
and that which was held by the Protectionists? They also required
Custom-house officers, and law-courts always open, to punish the
smuggler; they further required the ruin of those who traded with distant
countries, and the continual inactivity of our mercantile marine and
sea-board population.
VIII.
The honourable Belgian economist next combats the opinion of those
who, struck by the numerous and weighty inconveniences presented by
the Patent-Laws, and their extreme diversitude in every country, have
imagined a remedy in the expropriation of invention for the public good.
We shall be far from attaining our object if the reader has not
already understood that, renouncing all idea of property as applied
to manufacture, we shall not discuss this phase of the question. We
will say, however, that we must protest with all our might against the
following principle, expressed by M. le Hardy de Beaulieu: “Neither can
we admit,” says he “the justice of expropriation for the public good so
far as it concerns property in inventions any more than in real property.
Here also,” he adds, “the _right_ of one ought to prevail over the
_interest_ of the greater number.”
It is no doubt intentionally that the word _interest_ in this phrase is
put in opposition to the word “right.” But would it not be more correct
to say, the _right_ of the community ought to prevail over the _interest_
of the individual.
Individual right in property is certainly worthy of respect, and cannot
be called in question; but to our thinking, the right of the community
precedes and is superior to it. A part cannot be greater than the whole;
no one can place his right above that of mankind, and the individual
cannot oppose his will, good or bad, on the whole community.
We belong to no learned corporation—a simple volunteer in the army of
economist disputants—and have no other banner than that of the truth;
but we cannot refrain from saying one word in defence of those whom the
learned Belgian speaks of among many others in these terms: “The judgment
of the Academy of Sciences on the steamboat invented by Fulton may help
to form an estimate of the contradiction which experience sometimes
inflicts on the best-intentioned verdict of a committee of _savants_.”
We assert as a fact that if the steamboat presented to the Academy of
Sciences by Fulton were now submitted to the judgment of a committee of
machine builders, they would declare unanimously that the boat could not
navigate. We wish in no way to seek to depreciate the acknowledgments
which mankind owes to Fulton; but his invention, as all are at starting,
was only a sketch, which required half a century of labour to perfect and
to make as practical as it now is.
Here there is room for an observation which must be noted.
The advocates for the principle of property in inventions fall into
ecstacies before a transatlantic steamer, and exclaim, “Behold, what a
crying injustice! what deplorable ingratitude! Society has denied the
rights of the inventor to this wonder of the sea! He died in poverty, or
nearly so.”
Others go further back, and attribute to Solomon de Caux, or to Papin,
all the honour; they forget that between Papin, or Solomon de Caux
and Fulton, a crowd of men of genius brought their contributions
of knowledge, experiment, and work of every kind; and that between
Fulton and the makers of our day there are so many inventors, so many
explorers, fortunate or unfortunate, ridiculous or serious, whose
attempts or applications have helped to perfect the steam-engine, that it
may truly be said that every one has had a hand in it.
It is the same with the railway, the electric telegraph, and the
different machines for spinning, carding, weaving, &c.
IX.
To pretend, as does the defender of the principle of property in
inventions, in the ninth paragraph of his work, that the sudden and
inconsiderate introduction of a new invention may cause a sensible
injury to existing manufacturers, and that it is consequently advisable
to maintain the system of Patents, which during a certain time limits
their use and hinders production, to prevent the lowering of prices
immediately at least; so to pretend is to renew the plea of the protected
manufacturers, who demanded that the greatest precautions should be
taken to facilitate the transition from Protection to Free-trade. But
we do not see clearly what benefit there can be to the community at
large in delaying the advantages to be derived from an invention. The
misunderstood interests of certain manufacturers may appear to require
this delay, but common sense tells us that manufacturers and consumers
have every interest in immediately adopting every invention which saves
labour, capital, and time.
If we look back, we will see that a delay of this kind would have
retarded for an indefinite period the discoveries of Columbus in order
to avoid a sensible injury to the monopoly which Venice had acquired in
Eastern commerce. We maintain, as indeed experience proves, that however
innovating inventions may be, displacement of labour occurs gradually. We
will only cite, in support of this assertion, the well-known instance of
the substitution of printing for manuscript copying. It may be answered
that the substitution of mechanical spinning and weaving for hand-work
caused great suffering. We answer, that you should blame the system of
Patents, which, raising inordinately the cost of the machines, must
have restricted labour, although they lowered the price of the product.
If there had been no royalty to pay to the inventor, the number of the
machines would have rapidly increased, and a greater number of workmen
would at once have found employment similar to that to which they had
been accustomed.
How many enterprising and intelligent speculators would most eagerly have
availed themselves of these new outlets for their activity, if the course
had been cleared of all these obstructions which the law has arbitrarily
established.
At the risk of being considered by the honourable Professor grossly
ignorant of the laws of political economy, we do not believe that
monopolies will always exist, as he ventures to affirm. We know that
there always will be intellectual superiority, unrivalled artistic
ability, or special natural advantages; but these do not constitute
monopolies, in the proper acceptation of the term; and the object we
shall not cease to strive for is that no others shall exist.
X.
It is beyond our province to consider the inquiries of M. le Hardy de
Beaulieu as to the best plan of securing to inventors exclusive right in
their discoveries. To take up this question is to undertake the discovery
of the philosopher’s stone, or the squaring of the circle; several
generations have vainly grappled with it, and the different attempts
made without satisfactory results in almost every country prove this
conclusively.
But the honourable Professor seems to calculate on the improvement of
public morals, in order to reach the point where every attempt against
the property of the inventor shall be considered as guilty as robbery, or
as any injury done to property existing in material shape.
Under the uncompromising Protective system also it was attempted to
improve the morals of the public, who would not see the equal guilt of
the smuggler and the robber, and always loudly protested when repression
was enforced by bloodshed.
No reform of public morals will change the nature of these acts; they
will always be received as the appeal of right against abuse; and we
would deeply pity the country where it would be sufficient to say such is
the law, and where no conscience might protest against it.
XI.
“Discovery, the appropriation and creation of outlets, is too complicated
a work,” says M. le Hardy de Beaulieu, “for the inventor singly, and
especially without the aid of capital, to undertake with sufficient
chance of success.”
Here again we believe the learned economist is in error; he seems to
imagine one inventor arriving at perfection either at a jump, or after
many attempts—one inventor giving us at once our ocean steamer, or a
spinning-mill with a hundred thousand spindles! Inventions go more
slowly; when they spring from the brain of the thinker, they are only
sketches, and no man in his senses will risk a large capital before
making many trials, and that only on a small scale. We do not believe
there has been a single invention which, after numerous trials, has not
been modified, improved, and perfected.
And how many have at last been thrown into oblivion, from which they will
never be recalled?
Also, when we see the defenders of property in invention draw a sad
picture of the piercing miseries which inventors of these last have had
to endure, we are always tempted to ask them to show us the pitiful
account of ruin caused among those who placed faith in their promises
and delusions. Every medal has its reverse, and if more than one real
inventor has been misunderstood, many of the too-confident have been
victims of the mad and inapplicable ideas of inventors who imagined
themselves men of genius.
Is the law, which seems to promise an Eldorado to all inventors, to blame
for these losses, for these undeserved sufferings?
Bernard de Palissy’s saying, “Poverty hinders the success of the clever
man,” is often quoted. But this saying will always be true, whatever the
law may be. Can we admit that if perpetual property of invention had
existed in his time, Bernard would more easily have found the money which
he required?
The success of an invention is secured by the services it can render
being easily understood, immediate, and speedily realisable. The
capitalist, in dealing with hazardous undertakings—and inventors’
undertakings “are always hazardous”—does not calculate on perpetuity.
He works for immediate and large profits; he is in a hurry to realise,
because he knows that some other invention may dispossess him of all his
advantages. Little does he care, therefore, about the perpetuity.
XII.
In his twelfth and last paragraph the learned Professor answers several
minor objections to the system of property in inventions—objections which
seem to us not to carry great weight.
However, in answer to the objection taken from the case of two
applications for similar Patents, made at intervals of a few minutes
only, the eminent economist says that this case occurs only at rare
intervals, and making light of the rights of the slower, affirms that it
is not worth considering. Does not this denial of a right on account of
its infrequency, however, seem to show how arbitrary and artificial is
the constituting of property in invention?
We are among those who believe in the harmony of all economic relations,
of all legitimate interests; and when we see the right of one sacrificed
to false exigencies, we mistrust the exigencies. We believe them unjust
and contrary to the principles of equity, which forms the basis of all
economic science. We should wish to have seen M. le Hardy de Beaulieu
more logical in his deductions, claiming, as he has done, for real
property [la propriété foncière] that the right of one ought to prevail
over the interest of the greater number, and give a chance of obtaining
an indemnity, if he could not be assured of a part of the property
[Donner ouverture a l’obtention d’une indemnité si l’on ne pouvait lui
assurer une part de propriété].
But we repeat, these questions of the arrangement [organization] of
property, which we do not acknowledge, are beyond our province, and
if we accidentally touch upon them, it is only to show how little the
foundations of this right are similar to those on which rests the
principle of material property.
In recapitulation, we reject property in inventions and the advantages
claimed for it, because it seems to us that all this scaffolding of legal
prescription and Government protection only results in throwing out of
their natural course a crowd of workmen who would become more useful to
society and to themselves in ceasing to pursue chimeras.
We reject the proposed assimilation of this property to that of the
soil, because the privilege sought to be created cannot fail to hinder
and lessen the right of each member of the body politic. We reject
this privilege because nothing justifies it; the services rendered to
society by inventors being nowise different in their nature from those
daily conferred by skilful manufacturers, intelligent agriculturists,
_savants_, navigators, &c.
Finally, we reject it because history attests that great discoveries were
made before there was any conception of such property, and that it could
hardly be in operation at this day, except with regard to modifications,
or, if you will, improvements [perfectionnements], which do not merit
this abstraction from the common right.
ADDITIONAL CHAPTERS (FROM THE MAY NUMBER OF THE _JOURNAL DES
ECONOMISTES_).
The question of granting or denying a property in inventions is of
such importance that the discussion raised by the honourable Belgian
Professor, M. le Hardy de Beaulieu, ought not to be allowed to drop, and
that we should try to renew it.
We believe it to be of importance for the future of manufactures and of
progress, and most especially to the security of real property, that
whatever is doubtful and disputed in this question be deeply studied, and
that all should be agreed as to what property is, and if this title ought
to be applied to all or any of the inventions which daily start up.
M. le Hardy de Beaulieu pretends that one of the most frequent errors
of those whose enlightenment ought most to guard them against it
is to believe that property being inherent in matter, is, like it,
imperishable, and that property in land especially is as durable as the
land itself. He adds that we should beware of it, because this error
lays open landed property without defence to the attacks of communists
and socialists, who, sliding down the incline of irresistible logic, are
fatally led to declare all property illegitimate, to whatever purpose it
is applied.
Here, it seems to us, is a misunderstanding which may be easily explained.