Of the Injustice of Counterfeiting Books · Immanuel Kant
I. Deduction of the Editor's Right against the Counterfeiter
"A writer lets you know, or teaches you, this or that, etc., through me. I answer for nothing, not even for the liberty, which the writer takes, to speak publicly through me; I am but the mediator of the writer's thoughts coming to you." That is no doubt a business which one can execute only in the name of another, and never in one's own (as editor). The editor furnishes in his own name the mute instrument of the delivering of a speech of the author's to the public;** the editor can publish the said speech by printing, which consequently shows himself as the person through whom the author addresses the public, but he can do so only in the name of the author. [**Footnote: A book is the instrument of the delivering of a speech to the public, not merely of the thoughts, as pictures of a symbolical representation of an idea or of an event. What is here the most essential about it is that it is not a thing, which is thereby delivered, but is rather 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, such as a trumpet in music, or the mouths of others.]
The second point of the minor is: that the counterfeiter undertakes the author's business, not only without any permission from the owner, but even contrary to the owner's will. Given that he is a counterfeiter because he invades the province of another, who is authorized by the author himself to publish the work: the question is, whether the author can confer the same permission 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 public, the labour of the one must render that of the other useless and be ruinous to both; therefore a contract between the author and an editor that contains the corollary, to allow yet another besides the editor to venture the publication of the author's work, is impossible; consequently the author was not entitled to give the permission to any other, [including by implication a] counterfeiter), and the counterfeiter should not have even presumed this; by consequence the counterfeiting of books is a business totally contrary to the will of the proprietor, and yet undertaken in the proprietor's name. From this ground it follows that not the author, but the editor authorized by him, suffers damages. For as the author has entirely, 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 editor is the only proprietor of the transaction of this business, and the counterfeiter encroaches on the editor, but not on the author.
If someone can dispose of something at pleasure in his own name, then that someone has a right to that thing. But if someone can perform only in the name of another, he transacts this business such that the other is thereby bound, as if the business were transacted by himself. (Quod quis facit per alium, ipse fecisse putandus set). Therefore my right to the transacting of a business in the name of another is a personal positive right, to necessitate the author of the business to guarantee something, namely, to answer 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 author, and is 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 this is a personal positive right.
The copy, according to which the editor prints, is a work of the author's and belongs totally to the editor after he has purchased it, either in the manuscript form or the printed form, to do with it everything the editor pleases, where said doings can be done in the editor's own name; for that is a requisite of the complete right in a thing, i.e. ownership. But the use, which the editor cannot make of it except only in the name of another (namely the author's), is a business (opera) that this other transacts through the owner of the copy, where in addition to the ownership of the copy, a particular contract is still requisite for other rights to be provided to the owner of the copy. Now, the publication of a book is a business which can only be transacted in the name of another (namely the author, whom the editor presents as speaking to the public through him); therefore the rights of transacting the business of publishing the book is separate from the rights that are associated with the ownership of a copy of the book. The right to publish the book can legally be acquired only by a particular contract with the author. Who publishes without such a contract with the author (or, if the author has already granted this right to another, i.e. to an authorized editor, without a contract with that authorized editor) is the counterfeiter, who then damages the authorized editor, and must make amends to him for all damages.
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), and without whose consent cannot transact this business at all, is confirmed from certain obligations which fix themselves according to universal acknowledgement. [***Footnote: If the editor is at the same time also the author, then, however, both businesses (writing versus publishing) are different; the editor publishes as a tradesman, whereas what he published he originally wrote as a scholar or man of letter. But we may set aside such an unusual example of two different roles being held simultaneously by the same person, 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.]
Were the author to die after he had delivered his manuscript to the editor to be printed, and the editor had previously bound himself as the authorized publisher: then the editor would not have the liberty to suppress the manuscript's publication on the grounds that it is his property; but the public has a right, if the author left no heirs, either to force the editor to publish the book or to give up the manuscript to another who offers to publish it. For the publishing of his manuscript is a business which the author, prior to dying, had the intention to transact with the public through the editor, and for which the editor succeeds the author by becoming the agent. The public does not even need to know whether or not the author had this intention, or to agree with the author's intention; the public 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 the author has ceased by his death. Here the argument is not built upon 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, 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, but otherwise to provide for this elsewhere. All of which would not be legally justifiable, were the editor's right not deduced from the legal concept that the editor is transacting a business between the author and the public in the name of the author.
However, to this obligation of the editor's, which will probably be granted, a corresponding right exists, namely, the right to all that, without which the editor's 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 impossible for him. Works of art, as things, may, on the other hand, be imitated or otherwise modeled, at will, from a copy of them which was rightfully acquired, and those imitations may be publicly sold, without requiring the consent of the author of the original or of the master who supervised the artist in developing the artist's ideas. A drawing, which anyone has drawn, or had engraved by another, or executed in stone, metal, or stucco, may be copied, and the copies publicly sold; as everything, that one can perform with his thing in his own name, does not require the consent of another. Lippert's "Dactyliotec" may be imitated by every possessor of it who understands it, and exposed to sale, and the inventor of it has no right to complain of encroachment on his business. For it is a work (an opus, not an opera; these terms are mutually exclusive) which everybody who possesses it may, without even mentioning the name of the inventor, assume title over it, and also imitate it and use it 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 Bibliopola). For it is a contradiction, to make in his own name a speech which he knows, and conformably to the demand of the public, must be the speech of another. The reason why all works of art of others may be imitated for public sale, but books, to which an editor is designated, dare not be counterfeited, lies in this: that artworks are works (opera), but books are acts (operae); artworks may be as things existing for themselves, but books can have their existence only in a person. Consequently, books belong to the person of the author exclusively;**** and the author has an inalienable right (jus personalissimum) always to speak himself through every other, that is, nobody dares make the same speech to the public except in the author's name.
Text from Project Gutenberg, public domain in the United States.