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ESSAY THREE (1785) {8.77-87}
OF THE INJUSTICE OF COUNTERFEITING BOOKS
{79} Those who consider the publication of
a book as the use of the property in a copy
(whether the possessor now came by it as
a manuscript from the author or as a transcript
of it from an editor already at hand1), and
then, however, by the reservation of certain
rights, whether of the author's or of the
editor's who is appointed2 by him, have a
mind to limit the use still to this, [namely,]
that it is not permitted to counterfeit3
it can thereby never attain the end. For
the author's property in his thoughts4 (though
one concedes that such a [publication] takes
place according to external rights5) remains
to him notwithstanding the counterfeit; and,
as an express consent of the vendees of a
book to such a limitation of their property
can- not once suitably take place, 6* how
much less would a merely presumed [consent]
suffice to [determine] their obligation?
I believe, however, to have reason to consider
the publication not as the trading with goods
in one's own name, but as the transacting
of business in the name of another, namely,
the author, and in this manner to be able
to describe7 easily and distinctly the wrongfulness
of counterfeiting [books]. My argument, which
proves the editor's right, is contained in
a syllogism; 8 after which follows a second,
wherein the counterfeiter's pretension shall
be refuted.
{79} *Would an editor venture9 to bind everybody
who purchased his work to the condition,
to be accused of embezzling the property
of another intrusted to him, if [either]
intentionally or even by his inconsiderateness
[Unvorsichtigkeit] the copy which he purchased
were used for [the purpose of] counterfeiting?
Scarcely anyone10 would consent to this:
because he would thereby expose himself to
every sort of trouble about the inquiry and
the defence. The work would therefore remain
on [the editor's] hands.
I. Deduction of the Editor's Right against
the Counterfeiter.
Whoever transacts another's business in his
name and yet against his will is obliged
{80} to give up to him or to his plenipotentiary11
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 (the author's) etc. Therefore
he is obliged [to give up] to the author
or to his plenipotentiary (the editor) etc.
Proof of the Major.
As the agent [GeschSfttrSger] 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 he in whose name he carries on the business,
or another plenipotentiary to whose [charge
the former] has committed it, 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 intermed- dling nullo jure12 in another's
business, he must of necessity compensate13
[for] all damages [sustained]. This lies
beyond a doubt in the elementary conceptions
of natural right.
14
Proof of the Minor.
The first point of the minor is: that the
editor transacts the business of another
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 attorney or not): namely, whether
a book be a commodity [Waare] which the author,
[either] mediately or by means of another,
can trade15 with the public, [and] therefore,
can sell16 [either] with or without reservation
of certain rights; or whether it is [not]
rather a mere use of his powers (opera) which
he can concede (concedere), it is true, to
others, but never sell
(alienare); further: 17 whether the editor
transacts his business in his own name or
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
him as speaking publicly, and mediates but
the delivery of this speech to the public.
Let the copy of this speech, be it in handwriting
or in print, belong to whom it will; yet
to use this for one's self, or to carry on
trade with it, is a business which every
owner {81} of it may conduct in his own name
and at pleasure. But to let any one speak
publicly, to make public18 his speech as
such, that means19 to speak in his name,
and, as it were, 20 to say to the public:
'Through me, a writer literally lets you
in on this or that secret, 21 teaches [you,]
etc. I answer for nothing, not even for the
liberty which he takes to speak publicly
through me; I am but the mediator of its
coming to you;' that is no doubt a business
which one can execute in the name of another
only, [but] never in one's own (as editor).
[The editor] certainly furnishes in his own
name the mute instrument of the delivering
of a speech of the author's to the public;*
but he makes public the said speech by printing,
consequently [he] shows himself as the person
through whom the author addresses the [public],
which he can do only in the name of the [author].
The second point of the minor is: that the
counterfeiter undertakes the (author's) business,
not only without any permission from the
owner, 22 but even contrary to his will.
For as he is a counterfeiter only because
in his business he seizes [the business of]
another,
23 who is authorized by the author himself
to publish [the work]: the question is, whether
the author can confer the same permission24
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 whole public,
the labour of the one must render that of
the other useless and be ruinous to both
of them; therefore a contract of the author's
with an editor with the reservation, to allow
yet another besides him to venture the publication
of his work, is impossible; consequently
the author was not entitled to give the permission
to any other (as counterfeiter), so this
should not be presumed even once by the latter
{82} to be allowed; 25 by consequence the
?? {81} *A book is the instrument of the
delivering of a speech to the public, not
merely of the thoughts, as pictures, a symbolical
representation of an idea, or of an event.
What is here the most essential about it
is that it is no thing, which is thereby
delivered, but 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, as e. g. a megaphone,
[which] is itself actually the other's mouth.
26 counterfeit[ing of books] is a business
totally contrary to the allowed will of the
owner, and yet undertaken in his name.
* * * From this ground it likewise follows
that not the author, but the editor authorized
by him, is damaged. 27 For as the [former]
has entirely and 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 [latter] is the only
owner of the transaction of this business,
and the counterfeiter does harm to the editor,
to his rights, 28 [but] not to the author.
* * * But as this right of transacting a
business, which may be done just as well
by another with even more exact precision
if nothing particular has been agreed on
concerning it[ ]is not to be considered of
itself as inalienable (jus personalissimum):
so the editor, as he is owner of the plenipotence,
29 also has permission to give up30 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 counterfeiter,
but rightfully authorized editor, i. e. one
to whom the editor, who was appointed by
the author, has transferred his plenipotence.
II. Refutation of the Counterfeiter's pretended
Right against the Editor.
The question remains still to be answered:
whether, as the editor sells31 the work of
his author to the public, the consent of
the editor (and so also32 of the author,
who gave him plenipotence over it) to every
use of it at pleasure, consequently even
to reprinting it, does not thereby follow
from the ownership of33 the copy, however
disagreeable it may be to him[?] For gain
perhaps has enticed him to undertake with
this risk the business of editor, without
excluding the purchaser from it by an express
contract, because this might have been hurtful
to his business. {83} That the ownership
of the copy does not furnish this right I
now prove by the following syllogism: A personal
positive right against another can never
be derived from the ownership of a thing
only. Now the right of publishing [a work]
is a personal positive right. Therefore it
never can be derived from the ownership of
a thing (the copy) only.
Proof of the Major.
With the ownership of a thing is indeed conjoined
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 owner- ship of a thing.
It is true this latter might by a particular
agreement be added to the contract whereby
I acquire a property from anybody; e. g.
that, when I purchase a commodity, the vender
shall also send it to a certain place free
from expenses [postfrei]. But then the right
against the person, to do something for me,
does not proceed from the mere ownership
of my pur- chased thing, but from a particular
contract.
Proof of the Minor.
Whereof someone can dispose of [something]
at pleasure in his own name, thereof he has
a right to the thing. 34 But what he performs
only in the name of another, he transacts
this business such that the other is thereby
bound, as if it were transacted by himself.
(Quod quis facit per alium, ipse fecisse
putandus est. 35) Therefore my right to the
transacting of a business in the name of
another is a personal positive right, namely,
to necessitate the author of the business
to guarantee [prSstire] something, namely,
to answer [stehe] 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 (by printing)
in the name of the {84} author, 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
a personal positive right.
* * * The copy, according to which the editor
prints, is a work of the author's (opus)
and belongs totally to the editor after he
has purchased it, [either] in the manuscript
or printed, to do36 with it everything he
pleases, and what can be done in his own
name; for that is a requisite of the complete
right in a thing, i. e. ownership. But the
use, which he cannot make of it but only
in the name of another (namely the author's),
is a business (opera) that this other transacts
through the owner of the copy, whereto besides
the ownership a particular contract is still
requisite. Now the publication of a book
is a business which comes to be transacted
only in the name of another (namely the author,
whom the editor presents as speaking to the
public through him); therefore the right
thereto cannot pertain to the rights which
adhere to the ownership of a copy, but can
become rightful only by a particular contract
with the author. Who publishes without such
a contract with the author (or, when he has
already granted this right to another as
proper editor, without a contract with him)
is the counterfeiter, who then damages the
proper editor, and must make amends to him
for all disadvantages. 37
Universal Observation.
That the editor transacts his business of
editor not merely in his own name, but in
the name of another* (namely the author),
{85} and without his consent cannot transact
[it] at all: is confirmed from certain obligations
which fix themselves38 according to universal
acknowledgement. Were the author to die39
after he had delivered his manuscript to
the editor to be printed, and the [editor]
had bound himself thereto: then the latter
has not the liberty to suppress it as his
property; but the public has a right, in
[case of] a want of heirs, [either] to force
him to publish [the book] or to give up the
manuscript to another who offers to publish
it. For it is a business which the author
once had in mind [wollte] to transact with
the public through him, and for which he
succeeds him as agent. 40 The public does
not even need to know of this promise of
the author's, in order to accept it; 41 it
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
?? {84} *If the editor is at the same time
also author, then, however, both businesses
are different; and he publishes in the character
[QualitSt] of a tradesman what he wrote in
the character of a scholar. 42 But we may
set aside this case, 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. the author has ceased
by his death. Here [the argument] is not
built upon43 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,
44 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, 45 but otherwise
to provide for this elsewhere. All of which
could not take place, were the editor's right
not deduced from a business that he transacts
between the author and the public in the
name of the former. However, to this obligation
of the editor's, which will probably be granted,
a right founded thereupon must also correspond,
namely, the right to all that, without which
that 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 impos- sible for him. Works
of art, as things, may, on the other hand,
be imitated [or otherwise] modelled [at pleasure]
from a copy of them which was rightfully
acquired, 46 and those imitations [may be]
publicly sold, without requiring the consent
of the author [Urhebers] of the original
or of him whom he used as the workmaster
of his ideas. A drawing, which anyone has
drafted, 47 or got engraved in copper by
another, or {86} executed48 in stone, metal,
or plaster, 49 may be purchased, copied,
or cast [abgegossen] from these products,
and so publicly sold; as everything that
one can perform with his thing in his own
name requires not the consent of another.
.i. Lippert;'s .i. Dactyliotec; 50 may be
imitated by every possessor of it who understands
it, and exposed to sale without the inventor
of it being able to complain of interference
in51 his business. For it is a work (opus,
not opera alterius52) which everybody who
possesses it may, without even mentioning
the name of the inventor, sell, and so also53
imitate and use 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 Bibliopolae54). For it is a
contradiction: to make in his own name a
speech which, however, according to his own
indication55 and conformably to the demand
of the public, must be the speech of another.
Therefore, the reason why all works of art
of others may be imitated for public sale,
but books which already have their editor
appointed dare [dYrfen] not be counterfeited,
lies in this: that the former are works (opera),
the latter acts (operae), those may be as
things existing [existirende] for themselves,
but these can have their existence [Dasein]
only in a person. Consequently these latter
belong [kommen] to the person of the author
exclusively;* and he has therein an inalienable
right (jus personalissimum) always to speak
himself through every other, i. e. nobody
dares make the same speech to the public
other than56 in his (the author's) name.
When one in the meantime alters (abridges
or augments or retouches) the book of another,
so that it would now be wrong even to give
it out under the name {87} of the author
of the original; then the retouching in the
proper name of the publisher is no counterfeit,
and therefore not prohibited. For here another
author transacts through his editor another
business than the first, and consequently
seizes this [first business] in his business
with the public not a bit; 57 he represents
not that author, as speaking through him,
but another. Likewise, the translation into
another language cannot be held to be a counterfeit;
for it 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 gen- eral, built upon here, were
well-prepared, 58 and (as I flatter myself
it is possible) elaborated with the elegance
requisite to the .i. Roman; juridical learning:
then the complaint against the counterfeiter
might well be brought before a court, without
first needing to ask on that account for
a new law.
{86} *The author and the owner of the copy
may both say of it with equal right: it is
my book! but in a different sense. The first
takes the book as a writing or a speech;
the second as the mute instrument merely
of the delivering of the speech to him or
to the public, i. e. as a copy. This right
of the author's, however, is no right in
the thing, namely, the copy (for the owner
may burn it before the author's face), but
an innate right in his own person, namely,
to hinder another from reading it to the
public without his consent, which consent
can by no means be presumed, because he has
already given it exclusively to another.
NOTES:
1. R. has 'actual editor' for K.'s 'schon
vorhandenen Verleger'.
2. R. has 'put in possession' for K.'s 'eingesetzten'.
I use appointed.
3. K.'s 'nachzudrucken' could be translated
more literally as 'reprint', as R. does on
one occasion (see p. 41 [Ak. VIII. 82]).
I have preserved R.'s looser usage because
it highlights the fact that K. uses this
term throughout the essay (including in the
title) to refer to illegal reprinting.
4. R. adds 'or sentiments' as a further explanation
of K.'s 'Gedanken'.
5. R. has '... it were not granted that such
a property has place according to external
laws' for K.'s 'man ... einrSumt, da§ ein
solches nach Su§ern Rechten statt finde'.
I use right(s) for K.'s 'Recht(s/en)', as
here.
6. R. has 'cannot have place' for K.'s 'nicht
einmal fYglich ... statt finden kann'. I
use take place for K.'s 'statt finden'.
7. R. has 'represent' for K.'s 'darstellen'.
8. R. has 'ratiocination' for K.'s 'Vernunftschlusse'.
I use syllogism.
9. R. has 'attempt' for K.'s 'wagen'.
10. R. has 'Nobody' for K.'s 'Schwerlich
... jemand'.
11. R. has 'attorney' for K.'s 'BevollmSchtigten'.
I use plenipotentiary.
12. R. uses this Latin phrase to translate
K.'s 'unbefugte', which means 'unauthorized'.
13. R. has 'with other's affairs ... pay'
for K.'s 'in fremde GeschSfte ... vergYten'.
14. R. has 'the law of nature' for K.'s 'Naturrechts'.
15. R. has 'traffic' for K.'s 'verkehren'.
I use trade.
16. R. translates K.'s 'verSu§ern kann' as
'alienate', no doubt because K. supplies
a Latin equivalent (omitted by R.) at the
end of the sentence. This word, 'alienare',
is a legal term denoting the transfer of
property from one owner to another (e. g.
by selling). So it seems better to avoid
the misleading connotations of 'alienate'
(to sell one's soul, so to speak) by using
a more literal translation of the German
word, and filling out its intended connotation
by including K.'s Latin.
17. R. has 'again' for K.'s 'ferner'.
18. R. has 'publish' for K.'s 'ins Publicum
zu bringen'. I use make public.
19. R. has 'is as much as to say' for K.'s
'das hei§t'.
20. See Essay Two, note 28.
21. R. has 'lets you know' for K.'s 'lS§t
... hinterbringen'. I have considerably revised
R.'s word order here.
22. R. has 'proprieter' for K.'s 'EigenthYmers'.
I will consistently use owner, the term R.
himself usually employs.
23. R. has 'he invades the province of another'
for K.'s 'er einem andern ... in sein GeschSft
greift'.
24. R. has 'faculty' for K.'s 'Befugni§'.
25. I have considerably revised R.'s word
order in this part of the sentence.
26. R. has 'speaking trumpet, nay, even the
mouth of others' for K.'s 'sprachrohr, ja
selbst der M u n d anderer ist.'
27. R. has 'lesed' for K.'s 'lSdirt'.
28. R. has 'encroaches on' for K.'s 'thut
... Abbruch an seinem Rechte'. I have revised
R.'s awkward and potentially misleading word
order in the first half of the sentence.
29. R. has 'invested with full power' for
K.'s 'EigenthYmer der Vollmacht'. I use plenipotence
for K.'s 'Vollmacht', as R. does at the end
of the paragraph (though not elsewhere).
I have slightly revised R.'s word order in
the first part of the sentence.
30. R. has 'the faculty of making over' for
K.'s 'Befugni§ ... zu Yberlassen'.
31. R. has 'abalienates' for K.'s 'verSu§ert'.
See above, note 16.
32. R. has 'and of course' for K.'s 'mithin
auch'.
33. R. has 'property in' for K.'s 'Eigenthum
des'. Although in the first part of this
essay I have accepted R.'s use of 'property'
to translate this term, here and throughout
the second part I will often use the slightly
looser translation, ownership, in order to
avoid an otherwise awkward and possibly misleading
use of the word 'property'. See also note
22 above.
34. I have revised R.'s word order so that
it corresponds more closely to K.'s.
35. 'Anything someone does through [i. e.
by the agency of] another, he [i. e. the
former] should be considered to have done
himself.'
36. R. has 'and can do' for K. s 'zu thun'.
I have slightly revised R.'s word order here.
37. R. has 'leses ... damages' for K.'s 'lSdirt
... Nachteil'.
38. R. has 'he is laid under' for K.'s 'demselben
... anhSngen', and places it at the end of
the sentence.
39. R. has 'If ... were dead' for K.'s 'WSre
... gestorben', and places the verb later
in the sentence.
40. R. has 'he accepted as transactor' for
K.'s 'er sich als GeschSfttrSger erbot'.
41. R. has 'It was not necessary that the
public should ... , or to accept of it' for
K.'s 'Das Publicum hatt auch nicht nsthig
..., noch es zu acceptiren'.
42. R. has 'trader ... man of letters' for
K.'s 'Handelsmannes ... Gelehrten'.
43. R. places this phrase later in the sentence.
K.'s 'zum Grunde gelegt' literally means
'put on the ground'.
44. R. adds 'or interpolated'.
45. R. paraphrases K.'s 'des Verlags' as
'the number of the copies'. He also translates
K.'s 'oder' as 'and', thus neglecting its
connection with the two situations mentioned
in the previous sentence.
46. I have thoroughly revised R.'s virtually
incomprehensible word order in the first
half of this sentence.
47. R. has 'delineated' for K.'s 'entworfen'.
48. K.'s 'ausfYhren lassen' here seems to
mean 'sculpted'.
49. R. has 'stucco' for K.'s 'Gips', and
adds an extra 'in' before it and before 'metal'.
50. Dactyliography is the science of engraving
gems for finger-rings. Ak. VIII. 478 adds:
'Philipp Daniel Lippert, 1702-1785, Dactyliotheca
universalis, Leipzig, 1755-62, also appeared
later in German.'
51. R. has 'has no right to complain of encroachment
on' for K.'s 'ohne ... Yber Eingriffe ...
klagen ksnne'.
52. This means: 'a work, not works of another'.
53. R. has 'alienate, of course' for K.'s
'verSu§ern, mithin auch'. See note
16 above.
54. 'At the expense of the bookseller'.
55. R. has 'notice' for K.'s 'Anzeige'.
56. R. has 'but' for K.'s 'anders, als'.
57. R. has 'does not intrench on his business'
for K.'s 'greift diesem ... in sein GeschSfte
... nicht ein'.
58. R. has 'Were ... bottomed upon ..., well-understood'
for K.'s 'Wenn ... zum Grunde gelegte ...
wohlgefa§t ... wYrde'.very limit of human
reason.
-THE END-
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