Re: copyright and natural law?

On Sat, 12 Sep 1998, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> My copy of the US Constitution uses the word "secure," not "grant." Let
> me quote, "The Congress shall have the power ... To promote the progres
> of science and useful arts, by securing for limited times to authors and
> investors the exclusive right to their respective writings and
> discoveries;"
>
> Where did this "grant" idea come from? I would be interested to know
> where we went wrong.

The court decision _Wheaton and Donaldson v. Peters and Grigg_ (8 Peters 591) has a lengthy argument by the lawyers for Wheaton and Donaldson precisely on the same topic. But, the Supreme Court thought otherwise.

Justice M'Lean in _Wheaton and Donaldson v. Peters and Grigg_ (8 Peters 591) wrote on page 660-661:

     In behalf of the common law right, an argument has been drawn
     from the word _secure_, which is used in relation to this
     right, both in the constitution and in the acts of congress.
     This word, when used as a verb active, signifies to protect,
     insure, save, ascertain, &c.

     The counsel for the complainants insist that the term, as
     used, clearly indicates an intention, not to originate a
     right, but to protect one already in existence.

     There is no mode by which the meaning affixed to any word or
     sentence, by a deliberative body, can be so well ascertained,
     as by comparing it with the words and sentences with which it
     stands connected.  By this rule the word _secure_, as used in
     the constitution, could not mean the protection of an
     acknowledged legal right.  It refers to inventors, as well
     as authors, and it has never been pretended by any one,
     either in this country or in England, that an inventor has
     a perpetual right, at common law, to sell the thing invented.

     And if the word _secure_ is used in the constitution, in
     reference to a future right, was it not so used in the act
     of congress?

     But, it is said, that part of the first section of the act
     of congress, which has been quoted, a copyright is not only
     recognized as existing, but that it may be assigned, as the
     rights of the assignee are protected, the same as those of
     the author.

     As before stated, an author has, by the common law a
     property in his manuscript; and there can be no doubt that
     the rights of an assignee of such manuscript, would be
     protected by a court of chancery. This is presumed to be
     the copyright recognized in the act, and which was intended
     to be protected by its provisions.  And this protection was
     given as well to books published under such circumstances,
     as to manuscript copies.

     That congress, in passing the act of 1790, did not legislate
     in reference to existing rights, appears clear, from the
     provision that the author, &c. "shall have the sole right
     and liberty of printing," &c. Now if this exclusive right
     existed at common law, and congress were about to adopt
     legislative provisions for its protection, would they have
     used this language? Could they have deemed it necessary to
     vest a right already vested.  Such a presumption is refuted
     by the words above quoted, and their force is not lessened
     by any other part of the act.

     Congress, then, by this act, instead of sanctioning an
     existing right, as contended for, created it. This seems
     to be the clear import of the law, connected with the
     circumstances under which it was enacted.

Joseph Pietro Riolo
<riolo[_at_]voicenet.com>

P.S. For whatever it's worth, I have a copy of the above court decision on-line but I have to go through three more steps (make corrections, final proofread, and modify for web page) before I can put it on my web site. If anyone is ever interested in unfinished copy of the decision, send me a private e-mail and specify whether you want it in the HTML format or just plain ASCII format. This offer is limited only to those who are in the U.S. and live in the same country (that is, residents of U.S.). Received on Mon Sep 14 1998 - 23:27:57 GMT