{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'.