ESSAY THREE (1785) {8.77-87}

	{79} Those who consider the publication of a book as the use of the 
property in a copy (whether the possessor ìnowü 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 itÑcan thereby 
never attain the end. For the author's property in his thoughts4 (though one 
concedes that such a ì[publication]ü 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 ìonce suitablyü take place,6* how much less would a merely presumed 
ì[consent]ü suffice to ì[determine]ü 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 ìevenü 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 [GeschŠfttrŠger] 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 
ì[for]ü 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. Ñ 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): 
ìnamely,ü whether a book be a commodity [Waare] which the author, 
[either] mediately or by means of another, can trade15 with the public, 
ì[and]ü 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 ì(concedere)ü, it is true, to others, but never sell ì(alienare)ü; 
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 ìcarry onü 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 ìsecretü,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] ìcertainlyü 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 ì[he]ü shows 
himself as the person through whom the author addresses the [public], 
ìwhich he can doü 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 ì[the business of]ü 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 ìyetü 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 ìone andü the same ìwholeü public, the 
labour of the one must render that of the other useless and be ruinous to 
both ìof themü; therefore a contract of the author's with an editor with the 
reservation, to allow yet another ìbesides him to ventureü 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 ìonce byü the latter {82} ìto be allowedü;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 ìhereü the most essential ìabout itü is that it is 
no thing, which is thereby delivered, but an opera, namely a speech, and 
ìcertainlyü literal. In naming it a mute instrument, I distinguish it from what 
delivers the speech by a sound, as e.g. a megaphone, ì[which] isü itself 
actually the other's mouth.26
counterfeit[ing of books] is a business totally contrary to the ìallowedü will 
of the owner, and yet undertaken in his name.
*            *            *
	From this ground it ìlikewiseü 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, ìorü 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, ìto his rightsü,28 [but] not to the author.
*            *            *
	But as this right of transacting a business, which may be done just 
as well by another ìwith even more exact precisionÑüif nothing particular 
has been agreed on concerning itì[Ñ]üis not to be considered of itself as 
inalienable (jus personalissimum): ìsoü the editor, as he is owner of the 
plenipotence,29 ìalsoü 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 ìover itü) to every use of it 
at pleasure, consequently ìevenü to reprinting it, does not ìtherebyü follow 
from the ownership of33 the copy, however disagreeable it may be to 
him[?] For gain perhaps ìhasü 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. Ñ {83} That 
the ownership of the copy does not furnish this right I ìnowü 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 
ìto be obligedü 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 ìalsoü 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.

	ìWhereof someüone can dispose of ì[something]ü at pleasure in his 
own name, ìthereofü 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 [prŠstire] 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 nameÑconsequently 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 ìstillü 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 ì[editor]ü had bound himself thereto: ìthenü 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 ìonceü had in mind [wollte] to transact with the public 
ìthrough himü, and ìforü which he succeeds him as agent.40 The public 
does not ìevenü need to know of this promise of the author's, ìin orderü 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 ìtheü 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 ìalsoü author, ìthen, however,ü both 
businesses are different; and he publishes in the character [QualitŠt] 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 ìby his deathü. Here ì[the argument]ü 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 ìorü falsified,44 or let the necessary number of copies for the 
demand be wanting; the public would ìthusü be entitled to force him to more 
justness or to augment the publication,45 but otherwise to provide for this 
elsewhere. All ìofü 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 ìalsoü 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, mayì, on the other hand,ü be imitated [or 
otherwise] modelled [at pleasure] from a copy ìof themü which was 
rightfully acquired,46 and those imitations ì[may be]ü 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 ìin copperü by another, or {86} executed48 
in stone, metal, or plaster,49 may be ìpurchased,ü copied, ìor cast 
[abgegossen] from these productsü, and ìsoü 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 ìwithoutü 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, ìhowever,ü according to his own 
indication55 and conformably to the demand of the public, must be the 
speech of another. ìTherefore,ü the reason why all works of art of others 
may be imitated for public sale, but books which already have their editor 
appointed dare [dŸrfen] 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 ìlatterü belong [kommen] to the person 
of the author exclusively;* and he has ìthereinü 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 ìin the meantimeü alters (abridges ìorü 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; ìthenü 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 ì[first 
business]ü in his business with the public not a bit;57 he represents not that 
author, as speaking through him, but another. ìLikewise,ü the translation 
into another language cannot be held ìto beü a counterfeit; for it is not the 
same speech of the author, though the thoughts may be exactly the same.
	ìIfü 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: ìthenü the complaint against the counterfeiter might ìwellü 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. ìasü 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 ìthe author'sü 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 ... einrŠumt, da§ ein solches nach Šu§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 fŸglich ... 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 'BevollmŠchtigten'. 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 GeschŠfte ... 
vergŸten'. 
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 'verŠu§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 'lŠ§t ... hinterbringen'. I have 
considerably revised R.'s word order here.
22. R. has 'proprieter' for K.'s 'EigenthŸmers'. 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 GeschŠft 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 'lŠdirt'.
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 'EigenthŸmer 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 
Ÿberlassen'.
31. R. has 'abalienates' for K.'s 'verŠu§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 'lŠdirt ... Nachteil'.
38. R. has 'he is laid under' for K.'s 'demselben ... anhŠngen', and places 
it at the end of the sentence.
39. R. has 'If ... were dead' for K.'s 'WŠre ... gestorben', and places the 
verb later in the sentence.
40. R. has 'he accepted as transactor' for K.'s 'er sich als GeschŠfttrŠger 
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 nšthig ..., 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 'ausfŸhren 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 ... 
Ÿber Eingriffe ... klagen kšnne'.
52. This means: 'a work, not works of another'.
53. R. has 'alienate, of course' for K.'s 'verŠu§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 GeschŠfte    ... nicht ein'.
58. R. has 'Were ... bottomed upon ..., well-understood' for K.'s 'Wenn 
... zum Grunde gelegte ... wohlgefa§t ... wŸrde'.