wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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daub and to a masterpiece. In every such case the individual is entitled to
decide whether that which is his shall be given to the public. No other has
the right to publish his productions in any form, without his consent. This
right is wholly independent of the material on which, or the means by
which, the thought, sentiment, or emotion is expressed. It may exist
independently of any corporeal being, as in words spoken, a song sung, a
drama acted. Or if expressed on any material, as in a poem in writing, the
author may have parted with the paper, without forfeiting any proprietary
right in the composition itself. The right is lost only when the author
himself communicates his production to the public, — in other words,
publishes it. It is entirely independent of the copyright laws, and their
extension into the domain of art. The aim of those statutes is to secure to the
author, composer, or artist the entire profits arising from publication; but the
common-law protection enables him to control absolutely the act of
publication, and in the exercise of his own discretion, to decide whether
there shall be any publication at all. The statutory right is of no value,
unless there is a publication; the common-law right is lost as soon as there
is a publication.
What is the nature, the basis, of this right to prevent the publication of
manuscripts or works of art? It is stated to be the enforcement of a right of
property; and no difficulty arises in accepting this view, so long as we have
only to deal with the reproduction of literary and artistic compositions.
They certainly possess many of the attributes of ordinary property: they are
transferable; they have a value; and publication or reproduction is a use by
which that value is realized. But where the value of the production is found
not in the right to take the profits arising from publication, but in the peace
of mind or the relief afforded by the ability to prevent any publication at all,
it is difficult to regard the right as one of property, in the common
acceptation of that term. A man records in a letter to his son, or in his diary,
that he did not dine with his wife on a certain day. No one into whose hands
those papers fall could publish them to the world, even if possession of the
documents had been obtained rightfully; and the prohibition would not be
confined to the publication of a copy of the letter itself, or of the diary
entry; the restraint extends also to a publication of the contents. What is the
thing which is protected? Surely, not the intellectual act of recording the
fact that the husband did not dine with his wife, but that fact itself. It is not
the intellectual product, but the domestic occurrence. A man writes a dozen
letters to different people. No person would be permitted to publish a list of
the letters written. If the letters or the contents of the diary were protected
as literary compositions, the scope of the protection afforded should be the
same secured to a published writing under the copyright law. But the
copyright law would not prevent an enumeration of the letters, or the
publication of some of the facts contained therein. The copyright of a series
of paintings or etchings would prevent a reproduction of the paintings as
pictures; but it would not prevent a publication of list or even a description
of them. Yet in the famous case of Prince Albert v. Strange, the court held
that the common-law rule prohibited not merely the reproduction of the
etchings which the plaintiff and Queen Victoria had made for their own
pleasure, but also “the publishing (at least by printing or writing), though
not by copy or resemblance, a description of them, whether more or less
limited or summary, whether in the form of a catalogue or otherwise.”
Likewise, an unpublished collection of news possessing no element of a
literary nature is protected from piracy.
That this protection cannot rest upon the right to literary or artistic
property in any exact sense, appears the more clearly when the subject-
matter for which protection is invoked is not even in the form of intellectual
property, but has the attributes of ordinary tangible property. Suppose a man
has a collection of gems or curiosities which he keeps private: it would
hardly be contended that any person could publish a catalogue of them, and
yet the articles enumerated are certainly not intellectual property in the legal
sense, any more than a collection of stoves or of chairs.
The belief that the idea of property in its narrow sense was the basis of
the protection of unpublished manuscripts led an able court to refuse, in
several cases, injunctions against the publication of private letters, on the
ground that “letters not possessing the attributes of literary compositions are
not property entitled to protection;” and that it was “evident the plaintiff
could not have considered the letters as of any value whatever as literary
productions, for a letter cannot be considered of value to the author which
he never would consent to have published.” But those decisions have not
been followed, and it may now be considered settled that the protection
afforded by the common law to the author of any writing is entirely
independent of its pecuniary value, its intrinsic merits, or of any intention to
publish the same and, of course, also, wholly independent of the material, if
any, upon which, or the mode in which, the thought or sentiment was
expressed.
Although the courts have asserted that they rested their decisions on the
narrow grounds of protection to property, yet there are recognitions of a
more liberal doctrine. Thus in the case of Prince Albert v. Strange, already
referred to, the opinions both of the Vice-Chancellor and of the Lord
Chancellor, on appeal, show a more or less clearly defined perception of a
principle broader than those which were mainly discussed, and on which
they both placed their chief reliance. Vice-Chancellor Knight Bruce referred
to publishing of a man that he had “written to particular persons or on
particular subjects” as an instance of possibly injurious disclosures as to
private matters, that the courts would in a proper case prevent; yet it is
difficult to perceive how, in such a case, any right of privacy, in the narrow
sense, would be drawn in question, or why, if such a publication would be
restrained when it threatened to expose the victim not merely to sarcasm,
but to ruin, it should not equally be enjoined, if it threatened to embitter his
life. To deprive a man of the potential profits to be realized by publishing a
catalogue of his gems cannot per se be a wrong to him. The possibility of
future profits is not a right of property which the law ordinarily recognizes;
it must, therefore, be an infraction of other rights which constitutes the
wrongful act, and that infraction is equally wrongful, whether its results are
to forestall the profits that the individual himself might secure by giving the
matter a publicity obnoxious to him, or to gain an advantage at the expense
of his mental pain and suffering. . . .
These considerations lead to the conclusion that the protection afforded
to thoughts, sentiments, and emotions, expressed through the medium of
writing or of the arts, so far as it consists in preventing publication, is

daub and to a masterpiece. In every such case the individual is entitled to

decide whether that which is his shall be given to the public. No other has

the right to publish his productions in any form, without his consent. This

right is wholly independent of the material on which, or the means by

which, the thought, sentiment, or emotion is expressed. It may exist

independently of any corporeal being, as in words spoken, a song sung, a

drama acted. Or if expressed on any material, as in a poem in writing, the

author may have parted with the paper, without forfeiting any proprietary

right in the composition itself. The right is lost only when the author

himself communicates his production to the public, — in other words,

publishes it. It is entirely independent of the copyright laws, and their

extension into the domain of art. The aim of those statutes is to secure to the

author, composer, or artist the entire profits arising from publication; but the

common-law protection enables him to control absolutely the act of

publication, and in the exercise of his own discretion, to decide whether

there shall be any publication at all. The statutory right is of no value,

unless there is a publication; the common-law right is lost as soon as there

is a publication.

What is the nature, the basis, of this right to prevent the publication of

manuscripts or works of art? It is stated to be the enforcement of a right of

property; and no difficulty arises in accepting this view, so long as we have

only to deal with the reproduction of literary and artistic compositions.

They certainly possess many of the attributes of ordinary property: they are

transferable; they have a value; and publication or reproduction is a use by

which that value is realized. But where the value of the production is found

not in the right to take the profits arising from publication, but in the peace

of mind or the relief afforded by the ability to prevent any publication at all,

it is difficult to regard the right as one of property, in the common

acceptation of that term. A man records in a letter to his son, or in his diary,

that he did not dine with his wife on a certain day. No one into whose hands

those papers fall could publish them to the world, even if possession of the

documents had been obtained rightfully; and the prohibition would not be

confined to the publication of a copy of the letter itself, or of the diary

entry; the restraint extends also to a publication of the contents. What is the

thing which is protected? Surely, not the intellectual act of recording the

fact that the husband did not dine with his wife, but that fact itself. It is not

the intellectual product, but the domestic occurrence. A man writes a dozen

letters to different people. No person would be permitted to publish a list of

the letters written. If the letters or the contents of the diary were protected

as literary compositions, the scope of the protection afforded should be the

same secured to a published writing under the copyright law. But the

copyright law would not prevent an enumeration of the letters, or the

publication of some of the facts contained therein. The copyright of a series

of paintings or etchings would prevent a reproduction of the paintings as

pictures; but it would not prevent a publication of list or even a description

of them. Yet in the famous case of Prince Albert v. Strange, the court held

that the common-law rule prohibited not merely the reproduction of the

etchings which the plaintiff and Queen Victoria had made for their own

pleasure, but also “the publishing (at least by printing or writing), though

not by copy or resemblance, a description of them, whether more or less

limited or summary, whether in the form of a catalogue or otherwise.”

Likewise, an unpublished collection of news possessing no element of a

literary nature is protected from piracy.

That this protection cannot rest upon the right to literary or artistic

property in any exact sense, appears the more clearly when the subject-

matter for which protection is invoked is not even in the form of intellectual

property, but has the attributes of ordinary tangible property. Suppose a man

has a collection of gems or curiosities which he keeps private: it would

hardly be contended that any person could publish a catalogue of them, and

yet the articles enumerated are certainly not intellectual property in the legal

sense, any more than a collection of stoves or of chairs.

The belief that the idea of property in its narrow sense was the basis of

the protection of unpublished manuscripts led an able court to refuse, in

several cases, injunctions against the publication of private letters, on the

ground that “letters not possessing the attributes of literary compositions are

not property entitled to protection;” and that it was “evident the plaintiff

could not have considered the letters as of any value whatever as literary

productions, for a letter cannot be considered of value to the author which

he never would consent to have published.” But those decisions have not

been followed, and it may now be considered settled that the protection

afforded by the common law to the author of any writing is entirely

independent of its pecuniary value, its intrinsic merits, or of any intention to

publish the same and, of course, also, wholly independent of the material, if

any, upon which, or the mode in which, the thought or sentiment was

expressed.

Although the courts have asserted that they rested their decisions on the

narrow grounds of protection to property, yet there are recognitions of a

more liberal doctrine. Thus in the case of Prince Albert v. Strange, already

referred to, the opinions both of the Vice-Chancellor and of the Lord

Chancellor, on appeal, show a more or less clearly defined perception of a

principle broader than those which were mainly discussed, and on which

they both placed their chief reliance. Vice-Chancellor Knight Bruce referred

to publishing of a man that he had “written to particular persons or on

particular subjects” as an instance of possibly injurious disclosures as to

private matters, that the courts would in a proper case prevent; yet it is

difficult to perceive how, in such a case, any right of privacy, in the narrow

sense, would be drawn in question, or why, if such a publication would be

restrained when it threatened to expose the victim not merely to sarcasm,

but to ruin, it should not equally be enjoined, if it threatened to embitter his

life. To deprive a man of the potential profits to be realized by publishing a

catalogue of his gems cannot per se be a wrong to him. The possibility of

future profits is not a right of property which the law ordinarily recognizes;

it must, therefore, be an infraction of other rights which constitutes the

wrongful act, and that infraction is equally wrongful, whether its results are

to forestall the profits that the individual himself might secure by giving the

matter a publicity obnoxious to him, or to gain an advantage at the expense

of his mental pain and suffering. . . .

These considerations lead to the conclusion that the protection afforded

to thoughts, sentiments, and emotions, expressed through the medium of

writing or of the arts, so far as it consists in preventing publication, is