{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_46060/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_46060","id":"gutenberg_46060","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/46060","summary":null,"tags":["Category: Essays, Letters & Speeches","Category: Law & Criminology","Category: Philosophy & Ethics","Copyright"],"text":"Of The Injustice of Counterfeiting Books\n\nby Immanuel Kant\n\n[Transcriber note: This e-text edition of \"Of the Injustice of\nCounterfeiting Books\" is, essentially, with some changes or\nclarifications by the e-text preparer, based on a translation of this\nessay, from German into English, that was published in 1798 in: Essays\nand Treatises On Moral, Political and Various Philosophical Subjects,\nby Immanuel Kant, M.R.A.S.B., and professor of philosophy in the\nuniversity of Koenigsberg; From the German by the Translator of The\nPrinciples of Critical Philosophy; IN TWO VOLUMES; Vol. 1; London:\nSold by William Richardson Under the Royal Exchange, 1798; This e-text\nwas prepared by John Mamoun in 2014.  This e-text is not in copyright\nand is public domain.]\n\n*************\n\n\nOf The Injustice of Counterfeiting Books\n\nThose who consider the publication of a book to be equivalent to the\nuse of an author's property in the form of a copy (whether the\npossessor came by it as a manuscript from the author or as a\ntranscript of it from an actual editor), and then, however, via the\nreservation of certain rights, whether of the author's or of the\neditor's, who is appointed by the author, want to limit the use of the\nbook only to this, that is, want to impose the rule that it is not\npermitted to counterfeit the book, cannot, based upon the rationale of\nthis aforementioned consideration, attain this anti-counterfeiting\nobjective.  For the author's property in his thoughts or sentiments\n(even if it were not granted that the concept of such thought or\nsentiment property has legal merit according to external laws) would\nremain to him regardless of whether or not that property was used or\nrepresented in the form of a counterfeit; and, since an express legal\nconsent given by the purchaser of a book to such a limitation of their\nproperty would not likely be granted,* how much less would a merely\npresumed consent suffice to determine the purchaser's obligation?\n\n\n[*Footnote: Would an editor attempt to bind everybody who purchased\nhis work to the condition, to be accused of embezzling the property of\nanother entrusted to him, if, either intentionally, or by the\npurchaser's lack of oversight, the copy which the purchaser purchased\nwere used for the purpose of counterfeiting?  Scarcely anyone would\nconsent to this: because he would thereby expose himself to every sort\nof trouble about the inquiry and the defense. The work would therefore\nremain exclusively in the editor's hands.]\n\nI believe, however, that I am justified to consider the publication of\na book to be not the trading of a good [in the form of a book] in the\ntrader's own name, but as the transacting of business in the name of\nanother, namely, the author.  [By considering the act of publication\nto be such a transaction], I am able to represent easily and\ndistinctly the wrongfulness of counterfeiting books. My argument,\nwhich also proves the editor's right, is contained in a ratiocination;\nafter which follows a second, wherein the counterfeiter's pretension\nshall be refuted.\n\n\nI.  Deduction of the Editor's Right against the Counterfeiter\n\nWhoever transacts another's business in his name and yet against his\nwill is obliged to give up to him, or to his attorney, all the profits\nthat may arise therefrom, and to repair all the loss which is thereby\noccasioned to either the one or the other.\n\nNow the counterfeiter is he who transacts another's business (the\nauthor's) against the other's will.  Therefore the counterfeiter is\nobliged to give up to the author or to his attorney (or the editor)\n[any profits from the transaction].\n\n\nProof of the Major\n\nAs the agent, who intrudes himself, acts in the name of another in a\nmanner not permitted, he has no claim to the profit which arises from\nthis business; but the author or editor in whose name he carries on\nthe business, or another authorized controller of the work to whose\ncharge the former has committed the work, possesses the right to\nappropriate this profit to himself, as the fruit of his property.\nBesides, as this agent injures the possessor's right by intermeddling,\n\"nullo jure,\" in another's business, he must of necessity compensate\nfor all damages sustained. This lies without a doubt in the elementary\nconceptions of natural right.\n\n\nProof of the Minor\n\nThe first point of the minor is: that the editor transacts the\nbusiness of the author by the publication.  Here, everything depends\non the conception of a book, or of a writing in general, as a labour\nof the author's, and on the conception of the editor in general (be he\nan attorney or not). Whether a book be a commodity which the author,\neither through the author's own efforts or by means of another, can\ntraffic with the public, and can therefore transfer the ownership\nrights of the book, either with or without reservation of certain\nrights; or whether the book is instead a mere use of his works, which\nthe author can indeed concede to others, but never transfer the\nownership rights of; Again: whether the editor transacts his business\nin his own name, or transacts another's business in the name of\nanother?\n\nIn a book, as a writing, the author speaks to his reader; and he who\nprinted it speaks by his copies not for himself, but entirely in the\nname of the author. The editor exhibits the author as speaking\npublicly, and mediates only the delivery of this speech to the\npublic. Let the copy of this speech, whether it be in handwriting or\nin print, belong to whom it will; yet to use this for one's self, or\nto traffic with it, is a business which every owner of it may conduct\nin his own name and at pleasure. But to let any one speak publicly, to\npublish his speech as such, means to speak in his name, and, in a way,\nto say to the public:\n\n  \"A writer lets you know, or teaches you, this or that,\n  etc., through me.  I answer for nothing, not even for the\n  liberty, which the writer takes, to speak publicly through\n  me; I am but the mediator of the writer's thoughts coming\n  to you.\"\n\nThat is no doubt a business which one can execute only in the name of\nanother, and never in one's own (as editor). The editor furnishes in\nhis own name the mute instrument of the delivering of a speech of the\nauthor's to the public;** the editor can publish the said speech by\nprinting, which consequently shows himself as the person through whom\nthe author addresses the public, but he can do so only in the name of\nthe author.\n\n[**Footnote: A book is the instrument of the delivering of a speech to\nthe public, not merely of the thoughts, as pictures of a symbolical\nrepresentation of an idea or of an event. What is here the most\nessential about it is that it is not a thing, which is thereby\ndelivered, but is rather an opera, namely a speech, and certainly\nliteral. In naming it a mute instrument, I distinguish it from what\ndelivers the speech by a sound, such as a trumpet in music, or the\nmouths of others.]\n\nThe second point of the minor is: that the counterfeiter undertakes\nthe author's business, not only without any permission from the owner,\nbut even contrary to the owner's will. Given that he is a\ncounterfeiter because he invades the province of another, who is\nauthorized by the author himself to publish the work: the question is,\nwhether the author can confer the same permission on yet another, and\nconsent thereto. It is, however, clear that, as then each of them--the\nfirst editor and the person afterwards usurping the publication of the\nwork (the counterfeiter)--would manage the author's business with one\nand the same public, the labour of the one must render that of the\nother useless and be ruinous to both; therefore a contract between the\nauthor and an editor that contains the corollary, to allow yet another\nbesides the editor to venture the publication of the author's work, is\nimpossible; consequently the author was not entitled to give the\npermission to any other, [including by implication a] counterfeiter),\nand the counterfeiter should not have even presumed this; by\nconsequence the counterfeiting of books is a business totally contrary\nto the will of the proprietor, and yet undertaken in the proprietor's\nname.\n\nFrom this ground it follows that not the author, but the editor\nauthorized by him, suffers damages.  For as the author has entirely,\nwithout reservation, given up to the editor his right to the managing\nof his business with the public, or to dispose of it otherwise, so the\neditor is the only proprietor of the transaction of this business, and\nthe counterfeiter encroaches on the editor, but not on the author.\n\nBut as this right of transacting a business, which may be done just as\nwell by another, is not inalienable (jus personalissimum), assuming\nthat no corollary exists otherwise in the author's contractual\nagreement with the editor, so the editor, as he has been authorized to\nhave power over the work, also has the right to transfer his right of\npublication to another; and as the author must consent to this, he who\nundertakes the business from the second hand is not a counterfeiter,\nbut a rightfully authorized editor, i.e. one to whom the editor, who\nwas appointed by the author, has transferred his power over the work.\n\n\nII.  Refutation of the Counterfeiter's pretended Right against the\nEditor.\n\nThe question remains still to be answered: since the editor projects\nto the public the ownership over the work of the author, does not the\nconsent of the editor (and by implication also the author, who gave\nthe editor legal control over it) to every use of the work, including\nreprinting it, result automatically from ownership of a copy of the\nwork, such that such consent is automatically furnished to whoever\npurchases a copy of the work, however disagreeable such consent to\npermit counterfeiting may be to the editor? For the prospect of profit\nhas perhaps enticed the editor to undertake, with the risk of having\nthe published work counterfeited, the business of editor, where this\nrisk is more likely since the purchaser has not been excluded from\ncounterfeiting via an express contract, because it would hurt the\neditor's business if the editor tried to obligate all potential\npurchasers of the work to agree to a contract forbidding\ncounterfeiting, because potential purchases would generally not\nconsent to such an agreement and therefore would be less likely to\npurchase a copy of the work.  My answer to this question is that the\nownership of the copy does not furnish the right of counterfeiting.  I\nprove this by the following ratiocination:\n\n\n  A personal positive right against another can never be\n  derived from the ownership of a thing only.\n\n  But the right of publishing a work is a personal positive right.\n\n  Therefore, the right of publishing never can be derived from the\n  ownership of a thing (the copy) only.\n\n\nProof of the Major\n\nWith the ownership of a thing is indeed accompanied the negative right\nto resist any one who would hinder me from the use of it at pleasure;\nbut a positive right against a person, to demand of him to perform\nsomething or to be obliged to serve me in anything, cannot arise from\nthe mere ownership of a thing. It is true this positive right might by\na particular agreement be added to the purchase contract whereby I\nacquire a property from anybody; e.g. that, when I purchase a\ncommodity, the seller shall also send it to a certain place free from\nexpenses. But then the right against the person, to do something for\nme, does not proceed from the mere ownership of my purchased thing,\nbut from a particular contract.\n\n\nProof of the Minor\n\nIf someone can dispose of something at pleasure in his own name, then\nthat someone has a right to that thing.  But if someone can perform\nonly in the name of another, he transacts this business such that the\nother is thereby bound, as if the business were transacted by\nhimself. (Quod quis facit per alium, ipse fecisse putandus\nset). Therefore my right to the transacting of a business in the name\nof another is a personal positive right, to necessitate the author of\nthe business to guarantee something, namely, to answer for everything\nwhich he has done through me, or to which he obliges himself through\nme. The publishing of the work is now a speech to the public (by\nprinting) in the name of the author, and is consequently a business in\nthe name of another. Therefore the right to it is a right of the\neditor's against a person: not merely to defend himself in the use of\nhis property at pleasure against him; but to necessitate him to\nacknowledge and to answer for as his own a certain business, which the\neditor transacts in his name; consequently this is a personal positive\nright.\n\nThe copy, according to which the editor prints, is a work of the\nauthor's and belongs totally to the editor after he has purchased it,\neither in the manuscript form or the printed form, to do with it\neverything the editor pleases, where said doings can be done in the\neditor's own name; for that is a requisite of the complete right in a\nthing, i.e. ownership. But the use, which the editor cannot make of it\nexcept only in the name of another (namely the author's), is a\nbusiness (opera) that this other transacts through the owner of the\ncopy, where in addition to the ownership of the copy, a particular\ncontract is still requisite for other rights to be provided to the\nowner of the copy.\n\nNow, the publication of a book is a business which can only be\ntransacted in the name of another (namely the author, whom the editor\npresents as speaking to the public through him); therefore the rights\nof transacting the business of publishing the book is separate from\nthe rights that are associated with the ownership of a copy of the\nbook.  The right to publish the book can legally be acquired only by a\nparticular contract with the author. Who publishes without such a\ncontract with the author (or, if the author has already granted this\nright to another, i.e. to an authorized editor, without a contract\nwith that authorized editor) is the counterfeiter, who then damages\nthe authorized editor, and must make amends to him for all damages.\n\n\nUniversal Observation\n\nThat the editor transacts his business of editor not merely in his own\nname, but in the name of another*** (namely the author), and without\nwhose consent cannot transact this business at all, is confirmed from\ncertain obligations which fix themselves according to universal\nacknowledgement.\n\n[***Footnote: If the editor is at the same time also the author, then,\nhowever, both businesses (writing versus publishing) are different;\nthe editor publishes as a tradesman, whereas what he published he\noriginally wrote as a scholar or man of letter.  But we may set aside\nsuch an unusual example of two different roles being held\nsimultaneously by the same person, and restrict our exposition only to\nthat where the editor is not at the same time the author: it will\nafterwards be easy to extend the consequence to the first case\nlikewise.]\n\nWere the author to die after he had delivered his manuscript to the\neditor to be printed, and the editor had previously bound himself as\nthe authorized publisher: then the editor would not have the liberty\nto suppress the manuscript's publication on the grounds that it is his\nproperty; but the public has a right, if the author left no heirs,\neither to force the editor to publish the book or to give up the\nmanuscript to another who offers to publish it. For the publishing of\nhis manuscript is a business which the author, prior to dying, had the\nintention to transact with the public through the editor, and for\nwhich the editor succeeds the author by becoming the agent.  The\npublic does not even need to know whether or not the author had this\nintention, or to agree with the author's intention; the public\nacquires this right against the editor (to perform something) by the\nlaw only.  For he possesses the manuscript only on the condition to\nuse it for the purpose of a business of the author's with the public;\nbut this obligation towards the public remains, though that towards\nthe author has ceased by his death. Here the argument is not built\nupon a right of the public to the manuscript, but upon a business with\nthe author. Should the editor give out the author's work, after his\ndeath, mutilated or falsified, or let the necessary number of copies\nfor the demand be wanting; the public would thus be entitled to force\nhim to more justness or to augment the publication, but otherwise to\nprovide for this elsewhere. All of which would not be legally\njustifiable, were the editor's right not deduced from the legal\nconcept that the editor is transacting a business between the author\nand the public in the name of the author.\n\nHowever, to this obligation of the editor's, which will probably be\ngranted, a corresponding right exists, namely, the right to all that,\nwithout which the editor's obligation could not be fulfilled.  This\nis: that he exercises the right of publication exclusively, because\nthe rivalry of others in his business would render the transaction of\nit practically impossible for him.\n\nWorks of art, as things, may, on the other hand, be imitated or\notherwise modeled, at will, from a copy of them which was rightfully\nacquired, and those imitations may be publicly sold, without requiring\nthe consent of the author of the original or of the master who\nsupervised the artist in developing the artist's ideas. A drawing,\nwhich anyone has drawn, or had engraved by another, or executed in\nstone, metal, or stucco, may be copied, and the copies publicly sold;\nas everything, that one can perform with his thing in his own name,\ndoes not require the consent of another.  Lippert's \"Dactyliotec\" may\nbe imitated by every possessor of it who understands it, and exposed\nto sale, and the inventor of it has no right to complain of\nencroachment on his business. For it is a work (an opus, not an opera;\nthese terms are mutually exclusive) which everybody who possesses it\nmay, without even mentioning the name of the inventor, assume title\nover it, and also imitate it and use it in public trade, in his own\nname, as his own.\n\nBut the writing of another is the speech of a person (opera); and\nwhoever publishes it can speak to the public only in the name of this\nother, and say nothing more of himself than that the author makes the\nfollowing speech to the public through him (Impensis Bibliopola). For\nit is a contradiction, to make in his own name a speech which he\nknows, and conformably to the demand of the public, must be the speech\nof another.\n\nThe reason why all works of art of others may be imitated for public\nsale, but books, to which an editor is designated, dare not be\ncounterfeited, lies in this: that artworks are works (opera), but\nbooks are acts (operae); artworks may be as things existing for\nthemselves, but books can have their existence only in a\nperson. Consequently, books belong to the person of the author\nexclusively;**** and the author has an inalienable right (jus\npersonalissimum) always to speak himself through every other, that is,\nnobody dares make the same speech to the public except in the author's\nname.\n\n[****Footnote: The author, and the owner of the copy, may both say of\nit with equal right: \"It is my book!\" However, each would say this in\na different sense. The author takes the book as a writing or a speech;\nthe owner interprets the book as being the mute instrument merely of\nthe delivering of the speech to him or to the public, that is, as a\ncopy.  The author does not have ownership rights over the thing,\nnamely, the copy of the book (for the owner may burn that copy before\nthe author's face); instead, the author has an innate right, in the\nauthor's own person, to wit, to hinder another from reading the copy\nto the public without the author's consent, which consent can by no\nmeans be presumed, because the author may have already given it\nexclusively to another editor.]\n\nBut while altering (abridging, augmenting or retouching) the book of\nanother, such as to re-work the book into what is substantially a new\nbook, such that it would be wrong to publish the new book in the name\nof the author of the original book, the retouching of a book, in the\nproper name of the publisher, is no counterfeit, and therefore is not\nprohibited. For here, another author transacts, via his editor,\nanother business transaction that is different from the initial\nbusiness transaction transacted by the initial author, and\nconsequently does not intrude upon the initial author's initial\nbusiness transaction with the public; he represents not that author,\nas speaking through him, but another. Similarly, [I believe that the\nunauthorized] translation of an author's work into another language\ncannot be considered to be a counterfeit; for the translated book is\nnot the same speech of the author, though the thoughts may be exactly\nthe same.\n\nIf the idea of a copyright, or of the publication of books in general,\nthat were demonstrated in this essay, were well-understood, and\nprecisely elaborated (which, flattering myself, I think is possible),\nwith a formality that was at the level of Roman juridical learning, a\ncomplaint against a counterfeiter might be brought before a court,\nwithout first needing to ask for a new law to structure the due\nprocess proceedings that would govern such a lawsuit against a\ncounterfeiter.","title":"Of the Injustice of Counterfeiting Books: From: Essays and Treaties on Moral, Political and various Philosophical Subjects","tradition":"philosophy-ethics","translated_text":null,"word_count":3692}