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Of The Injustice of Counterfeiting Books

by Immanuel Kant

Of The Injustice of Counterfeiting Books

I believe, however, that I am justified to consider the publication of a book to be not the trading of a good in the trader's own name, but as the transacting of business in the name of another, namely, the author. , I am able to represent easily and distinctly the wrongfulness of counterfeiting books. My argument, which also proves the editor's right, is contained in a ratiocination; after which follows a second, wherein the counterfeiter's pretension shall be refuted.

Whoever transacts another's business in his name and yet against his will is obliged to give up to him, or to his attorney, all the profits that may arise therefrom, and to repair all the loss which is thereby occasioned to either the one or the other.

Now the counterfeiter is he who transacts another's business against the other's will. Therefore the counterfeiter is obliged to give up to the author or to his attorney .

Proof of the Major

As the agent, who intrudes himself, acts in the name of another in a manner not permitted, he has no claim to the profit which arises from this business; but the author or editor in whose name he carries on the business, or another authorized controller of the work to whose charge the former has committed the work, possesses the right to appropriate this profit to himself, as the fruit of his property. Besides, as this agent injures the possessor's right by intermeddling, "nullo jure," in another's business, he must of necessity compensate for all damages sustained. This lies without a doubt in the elementary conceptions of natural right.

Proof of the Minor

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 . 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."

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 --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, 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 , 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.

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 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 only.

Proof of the Major

With the ownership of a thing is indeed accompanied the negative right to resist any one who would hinder me from the use of it at pleasure; but a positive right against a person, to demand of him to perform something or to be obliged to serve me in anything, cannot arise from the mere ownership of a thing. It is true this positive right might by a particular agreement be added to the purchase contract whereby I acquire a property from anybody; e.g. that, when I purchase a commodity, the seller shall also send it to a certain place free from expenses. But then the right against the person, to do something for me, does not proceed from the mere ownership of my purchased thing, but from a particular contract.

Proof of the Minor

If someone can dispose of something at pleasure in his own name, then that someone has a right to that thing. But if someone can perform only in the name of another, he transacts this business such that the other is thereby bound, as if the business were transacted by himself. . Therefore my right to the transacting of a business in the name of another is a personal positive right, to necessitate the author of the business to guarantee something, namely, to answer for everything which he has done through me, or to which he obliges himself through me. The publishing of the work is now a speech to the public in the name of the author, and is consequently a business in the name of another. Therefore the right to it is a right of the editor's against a person: not merely to defend himself in the use of his property at pleasure against him; but to necessitate him to acknowledge and to answer for as his own a certain business, which the editor transacts in his name; consequently this is a personal positive right.

The copy, according to which the editor prints, is a work of the author's and belongs totally to the editor after he has purchased it, either in the manuscript form or the printed form, to do with it everything the editor pleases, where said doings can be done in the editor's own name; for that is a requisite of the complete right in a thing, i.e. ownership. But the use, which the editor cannot make of it except only in the name of another , is a business that this other transacts through the owner of the copy, where in addition to the ownership of the copy, a particular contract is still requisite for other rights to be provided to the owner of the copy.

Now, the publication of a book is a business which can only be transacted in the name of another ; therefore the rights of transacting the business of publishing the book is separate from the rights that are associated with the ownership of a copy of the book. The right to publish the book can legally be acquired only by a particular contract with the author. Who publishes without such a contract with the author is the counterfeiter, who then damages the authorized editor, and must make amends to him for all damages.

Universal Observation

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 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 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 ; 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 . 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.

But while altering 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, 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 , 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.

"Have you ever been in this French village?" asked Vesper.

"No," and the salesman stifled a yawn. "I only call at the principal towns, where the big stores are. Good Lord! I wish those stick-in-the-muds would come up from the wharf. If I knew how to run an engine I'd be off without 'em," and he strolled to the car door. "It's as quiet as death down there. The passengers must have chopped up the train-hands and thrown 'em in the water. If my wife made up her mind to move to this province, I'd die in ten days, for I'd have so much time to think over my sins. Glory hallelujah, here they come!" and he returned to his seat. "The whole tribe of 'em, edging along as if they were a funeral procession and we were the corpses on ahead. We're off," he said, jocularly, to Vesper, and he kicked out his little dapper legs, stuck his ticket in the front of his shiny hat, and sank into a seat, where he was soon asleep.

Vesper was rather out of his reckoning. It had not occurred to him, in spite of Longfellow's assurance about naught but tradition remaining of the beautiful village of Grand Pr?, that no French were really to be found there. Now, according to the salesman, he should look for the Acadiens in this part of the province. However, if the French village was thirty-five miles long there was no hurry about leaving the train, and he settled back and watched his fellow passengers leisurely climbing the steps. Among those who entered the parlor-car was a stout, gentlemanly man, gesticulating earnestly, although his hands were full of parcels, and turning every instant to look with a quick, bright eye into the face of his companion, who was a priest.

The gentleman for a time read the paper intently. Then his nervous hands flung it down, and Vesper, leaning over, politely asked if he would lend it to him.

Vesper, with slow, quiet emphasis, which always imparted weight and importance to his words, assented to this, with the qualification that it was chilly.

"It is never very warm here until the end of June," said the stout gentleman, with a courteous gesture, "but I find this weather most agreeable for wheeling. I am shortly to leave the train and take to my bicycle for the remainder of my journey."

Vesper asked him whether there was a good road along the shores of the Bay.

"The best in the province, but I regret to say that the roads to it from the stations are cut up by heavy teaming."

"And the hotels,--are they good?"

Sleeping Water Inn. This inn, well patronized in the past, is still the rendezvous for tourists, bicyclists, etc. The house is airy, and the table is good. A trustworthy teamster is always at the train to carry trunks and valises to the inn. Rose de For?t, Proprietress.

Vesper looked up, to find his neighbor smiling involuntarily. "Pardon me," he said, with contrition, "I am thinking that you would find the house satisfactory."

"It is kept by a woman?"

"Yes," said the stranger, with preternatural gravity; "Rose ? Charlitte."

Vesper said nothing, and his face was rarely an index of his thoughts, yet the stranger, knowing in some indefinable way that he wished for further information, continued. "On the Bay, the friendly fashion prevails of using only the first name. Rose ? Charlitte is rarely called Madame de For?t."

Vesper saw that some special interest attached to the proprietress of the Acadien inn, yet did not see his way clear to find out what it was. His new acquaintance, however, had a relish for his subject of conversation, and pursued it with satisfaction. "She is very remarkable, and makes money, yet I hope that fate will intervene to preserve her from a life which is, perhaps, too public for a woman of her stamp. A rich uncle, one Auguste Le Noir, whose beautiful home among orange and fig trees on the Bayou Vermillon in Louisiana I visited last year, may perhaps rescue her. Not that she does anything at all out of the way," he added, hastily, "but she is beautiful and young."

Vesper repressed a slight start at the mention of the name Le Noir, then asked calmly if it was a common one among the Acadiens.

The Le Noirs and Le Blancs, the gentleman assured him, were as plentiful as blackberries, while as to Melan?ons, there were eighty families of them on the Bay. "This has given rise to the curious house-that-Jack-built system of naming," he said. "There is Jean ? Jacques Melan?on, which is Jean, the son of Jacques,--Jean ? Basile, Jean ? David, and sometimes Jean ? Martin ? Conrade ? Benoit Melan?on, but"--and he checked himself quickly--"I am, perhaps, wearying you with all this?" He was as a man anxious, yet hesitating, to impart information, and Vesper hastened to assure him that he was deeply interested in the Acadiens.

The cloud swept from the face of the vivacious gentleman. "You gratify me. The old prejudice against my countrymen still lingers in this province in the shape of indifference. I rarely discuss them unless I know my listener."

"Have I the pleasure of addressing an Acadien?" asked Vesper.

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