That the editor transacts his business of editor not merely in his own
name, but in the name of another*** (namely the author), and without
whose consent cannot transact this business at all, is confirmed from
certain obligations which fix themselves according to universal
acknowledgement.
[***Footnote: If the editor is at the same time also the author, then,
however, both businesses (writing versus publishing) are different;
the editor publishes as a tradesman, whereas what he published he
originally wrote as a scholar or man of letter. But we may set aside
such an unusual example of two different roles being held
simultaneously by the same person, and restrict our exposition only to
that where the editor is not at the same time the author: it will
afterwards be easy to extend the consequence to the first case
likewise.]
Were the author to die after he had delivered his manuscript to the
editor to be printed, and the editor had previously bound himself as
the authorized publisher: then the editor would not have the liberty
to suppress the manuscript's publication on the grounds that it is his
property; but the public has a right, if the author left no heirs,
either to force the editor to publish the book or to give up the
manuscript to another who offers to publish it. For the publishing of
his manuscript is a business which the author, prior to dying, had the
intention to transact with the public through the editor, and for
which the editor succeeds the author by becoming the agent. The
public does not even need to know whether or not the author had this
intention, or to agree with the author's intention; the public
acquires this right against the editor (to perform something) by the
law only. For he possesses the manuscript only on the condition to
use it for the purpose of a business of the author's with the public;
but this obligation towards the public remains, though that towards
the author has ceased by his death. Here the argument is not built
upon a right of the public to the manuscript, but upon a business with
the author. Should the editor give out the author's work, after his
death, mutilated or falsified, or let the necessary number of copies
for the demand be wanting; the public would thus be entitled to force
him to more justness or to augment the publication, but otherwise to
provide for this elsewhere. All of which would not be legally
justifiable, were the editor's right not deduced from the legal
concept that the editor is transacting a business between the author
and the public in the name of the author.
However, to this obligation of the editor's, which will probably be
granted, a corresponding right exists, namely, the right to all that,
without which the editor's obligation could not be fulfilled. This
is: that he exercises the right of publication exclusively, because
the rivalry of others in his business would render the transaction of
it practically impossible for him.
Works of art, as things, may, on the other hand, be imitated or
otherwise modeled, at will, from a copy of them which was rightfully
acquired, and those imitations may be publicly sold, without requiring
the consent of the author of the original or of the master who
supervised the artist in developing the artist's ideas. A drawing,
which anyone has drawn, or had engraved by another, or executed in
stone, metal, or stucco, may be copied, and the copies publicly sold;
as everything, that one can perform with his thing in his own name,
does not require the consent of another. Lippert's "Dactyliotec" may
be imitated by every possessor of it who understands it, and exposed
to sale, and the inventor of it has no right to complain of
encroachment on his business. For it is a work (an opus, not an opera;
these terms are mutually exclusive) which everybody who possesses it
may, without even mentioning the name of the inventor, assume title
over it, and also imitate it and use it in public trade, in his own
name, as his own.
But the writing of another is the speech of a person (opera); and
whoever publishes it can speak to the public only in the name of this
other, and say nothing more of himself than that the author makes the
following speech to the public through him (Impensis Bibliopola). For
it is a contradiction, to make in his own name a speech which he
knows, and conformably to the demand of the public, must be the speech
of another.
The reason why all works of art of others may be imitated for public
sale, but books, to which an editor is designated, dare not be
counterfeited, lies in this: that artworks are works (opera), but
books are acts (operae); artworks may be as things existing for
themselves, but books can have their existence only in a
person. Consequently, books belong to the person of the author
exclusively;**** and the author has an inalienable right (jus
personalissimum) always to speak himself through every other, that is,
nobody dares make the same speech to the public except in the author's
name.
[****Footnote: The author, and the owner of the copy, may both say of
it with equal right: "It is my book!" However, each would say this in
a different sense. The author takes the book as a writing or a speech;
the owner interprets the book as being the mute instrument merely of
the delivering of the speech to him or to the public, that is, as a
copy. The author does not have ownership rights over the thing,
namely, the copy of the book (for the owner may burn that copy before
the author's face); instead, the author has an innate right, in the
author's own person, to wit, to hinder another from reading the copy
to the public without the author's consent, which consent can by no
means be presumed, because the author may have already given it
exclusively to another editor.]
But while altering (abridging, augmenting or retouching) the book of
another, such as to re-work the book into what is substantially a new
book, such that it would be wrong to publish the new book in the name
of the author of the original book, the retouching of a book, in the
proper name of the publisher, is no counterfeit, and therefore is not
prohibited. For here, another author transacts, via his editor,
another business transaction that is different from the initial
business transaction transacted by the initial author, and
consequently does not intrude upon the initial author's initial
business transaction with the public; he represents not that author,
as speaking through him, but another. Similarly, [I believe that the
unauthorized] translation of an author's work into another language
cannot be considered to be a counterfeit; for the translated book is
not the same speech of the author, though the thoughts may be exactly
the same.
If the idea of a copyright, or of the publication of books in general,
that were demonstrated in this essay, were well-understood, and
precisely elaborated (which, flattering myself, I think is possible),
with a formality that was at the level of Roman juridical learning, a
complaint against a counterfeiter might be brought before a court,
without first needing to ask for a new law to structure the due
process proceedings that would govern such a lawsuit against a
counterfeiter.