The first point of the minor is: that the editor transacts the
business of the author by the publication. Here, everything depends
on the conception of a book, or of a writing in general, as a labour
of the author's, and on the conception of the editor in general (be he
an attorney or not). Whether a book be a commodity which the author,
either through the author's own efforts or by means of another, can
traffic with the public, and can therefore transfer the ownership
rights of the book, either with or without reservation of certain
rights; or whether the book is instead a mere use of his works, which
the author can indeed concede to others, but never transfer the
ownership rights of; Again: whether the editor transacts his business
in his own name, or transacts another's business in the name of
another?
In a book, as a writing, the author speaks to his reader; and he who
printed it speaks by his copies not for himself, but entirely in the
name of the author. The editor exhibits the author as speaking
publicly, and mediates only the delivery of this speech to the
public. Let the copy of this speech, whether it be in handwriting or
in print, belong to whom it will; yet to use this for one's self, or
to traffic with it, is a business which every owner of it may conduct
in his own name and at pleasure. But to let any one speak publicly, to
publish his speech as such, means to speak in his name, and, in a way,
to say to the public:
"A writer lets you know, or teaches you, this or that,
etc., through me. I answer for nothing, not even for the
liberty, which the writer takes, to speak publicly through
me; I am but the mediator of the writer's thoughts coming
to you."
That is no doubt a business which one can execute only in the name of
another, and never in one's own (as editor). The editor furnishes in
his own name the mute instrument of the delivering of a speech of the
author's to the public;** the editor can publish the said speech by
printing, which consequently shows himself as the person through whom
the author addresses the public, but he can do so only in the name of
the author.
[**Footnote: A book is the instrument of the delivering of a speech to
the public, not merely of the thoughts, as pictures of a symbolical
representation of an idea or of an event. What is here the most
essential about it is that it is not a thing, which is thereby
delivered, but is rather an opera, namely a speech, and certainly
literal. In naming it a mute instrument, I distinguish it from what
delivers the speech by a sound, such as a trumpet in music, or the
mouths of others.]
The second point of the minor is: that the counterfeiter undertakes
the author's business, not only without any permission from the owner,
but even contrary to the owner's will. Given that he is a
counterfeiter because he invades the province of another, who is
authorized by the author himself to publish the work: the question is,
whether the author can confer the same permission on yet another, and
consent thereto. It is, however, clear that, as then each of them--the
first editor and the person afterwards usurping the publication of the
work (the counterfeiter)--would manage the author's business with one
and the same public, the labour of the one must render that of the
other useless and be ruinous to both; therefore a contract between the
author and an editor that contains the corollary, to allow yet another
besides the editor to venture the publication of the author's work, is
impossible; consequently the author was not entitled to give the
permission to any other, [including by implication a] counterfeiter),
and the counterfeiter should not have even presumed this; by
consequence the counterfeiting of books is a business totally contrary
to the will of the proprietor, and yet undertaken in the proprietor's
name.
From this ground it follows that not the author, but the editor
authorized by him, suffers damages. For as the author has entirely,
without reservation, given up to the editor his right to the managing
of his business with the public, or to dispose of it otherwise, so the
editor is the only proprietor of the transaction of this business, and
the counterfeiter encroaches on the editor, but not on the author.
But as this right of transacting a business, which may be done just as
well by another, is not inalienable (jus personalissimum), assuming
that no corollary exists otherwise in the author's contractual
agreement with the editor, so the editor, as he has been authorized to
have power over the work, also has the right to transfer his right of
publication to another; and as the author must consent to this, he who
undertakes the business from the second hand is not a counterfeiter,
but a rightfully authorized editor, i.e. one to whom the editor, who
was appointed by the author, has transferred his power over the work.
II. Refutation of the Counterfeiter's pretended Right against the
Editor.
The question remains still to be answered: since the editor projects
to the public the ownership over the work of the author, does not the
consent of the editor (and by implication also the author, who gave
the editor legal control over it) to every use of the work, including
reprinting it, result automatically from ownership of a copy of the
work, such that such consent is automatically furnished to whoever
purchases a copy of the work, however disagreeable such consent to
permit counterfeiting may be to the editor? For the prospect of profit
has perhaps enticed the editor to undertake, with the risk of having
the published work counterfeited, the business of editor, where this
risk is more likely since the purchaser has not been excluded from
counterfeiting via an express contract, because it would hurt the
editor's business if the editor tried to obligate all potential
purchasers of the work to agree to a contract forbidding
counterfeiting, because potential purchases would generally not
consent to such an agreement and therefore would be less likely to
purchase a copy of the work. My answer to this question is that the
ownership of the copy does not furnish the right of counterfeiting. I
prove this by the following ratiocination:
A personal positive right against another can never be
derived from the ownership of a thing only.
But the right of publishing a work is a personal positive right.
Therefore, the right of publishing never can be derived from the
ownership of a thing (the copy) only.