第26章

A book is a writing which contains a discourse addressed by some one to the public, through visible signs of speech.It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages.He who speaks to the public in his own name is the author.He who addresses the writing to the public in the name of the author is the publisher.When a publisher does this with the permission or authority of the author, the act is in accordance with right, and he is the rightful publisher; but if this is done without such permission or authority, the act is contrary to right, and the publisher is a counterfeiter or unlawful publisher.The whole of a set of copies of the original document is called an edition.

The Unauthorized Publishing of Books is Contrary to the Principles of Right, and is Rightly Prohibited.

A writing is not an immediate direct presentation of a conception, as is the case, for instance, with an engraving that exhibits a portrait, or a bust or cast by a sculptor.It is a discourse addressed in a particular form to the public; and the author may be said to speak publicly by means of his publisher.The publisher, again, speaks by the aid of the printer as his workman (operarius), yet not in his own name, for otherwise he would be the author, but in the name of the author; and he is only entitled to do so in virtue of a mandate given him to that effect by the author.Now the unauthorized printer and publisher speaks by an assumed authority in his publication; in the name indeed of the author, but without a mandate to that effect (gerit se mandatarium absque mandato).Consequently such an unauthorized publication is a wrong committed upon the authorized and only lawful publisher, as it amounts to a pilfering of the profits which the latter was entitled and able to draw from the use of his proper right (furtum usus).Unauthorized printing and publication of books is, therefore, forbidden- as an act of counterfeit and piracy-on the ground of right.

There seems, however, to be an impression that there is a sort of common right to print and publish books; but the slightest reflection must convince any one that this would be a great injustice.

The reason of it is found simply in the fact that a book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a copy; and it is therefore his by a real right.

But, from another point of view, a book is not merely an external thing, but is a discourse of the publisher to the public, and he is only entitled to do this publicly under the mandate of the author (praestatio operae); and this constitutes a personal right.The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of right in relation to books.

Confusion of Personal Right and Real Right.

The confusion of personal right with real right may be likewise shown by reference to a difference of view in connection with another contract, falling under the head of contracts of hiring (B II.

I), namely, the contract of lease (jus incolatus).The question is raised as to whether a proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of lease, was bound to add the condition of the continuance of the lease to the contract of purchase; or whether it should be held that "purchase breaks hire," of course under reservation of a period of warning determined by the nature of the subject in use.In the former view, a house or farm would be regarded as having a burden lying upon it, constituting a real right acquired in it by the lessee;and this might well enough be carried out by a clause merely indorsing or ingrossing the contract of lease in the deed of sale.But as it would no longer then be a simple lease; another contract would properly be required to be conjoined, a matter which few lessors would be disposed to grant.The proposition, then, that "Purchase breaks hire" holds in principle; for the full right in a thing as a property overbears all personal right, which is inconsistent with it.But there remains a right of action to the lessee, on the ground of a personal right for indemnification on account of any loss arising from breaking of the contract.

EPISODICAL SECTION.The Ideal Acquisition of External Objects of the Will.

32.The Nature and Modes of Ideal Acquisition.

I call that mode of acquisition ideal which involves no causality in time, and which is founded upon a mere idea of pure reason.It is nevertheless actual, and not merely imaginary acquisition: and it is not called real only because the act of acquisition is not empirical.This character of the act arises from the peculiarity that the person acquiring acquires from another who either is not yet, and who can only be regarded as a possible being, or who is just ceasing to be, or who no longer is.Hence such a mode of attaining to possession is to be regarded as a mere practical idea of reason.

There are three modes of ideal acquisition:

I.Acquisition by usucapion;

II.Acquisition by inheritance or succession;III.Acquisition by undying merit (meritum immortale), or the claim by right to a good name at death.

These three modes of acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the civil constitution or upon arbitrary statutes;they are already contained a priori in the conception of the state of nature, and are thus necessarily conceivable prior to their empirical manifestation.The laws regarding them in the civil constitution ought to be regulated by that rational conception.

33.I.Acquisition by Usucapion.

(Acquisitio per Usucapionem).