Page:Harvard Law Review Volume 12.djvu/574

554 HARVARD LAW REVIEW. of keeping it secret ; but this, of course, will be ineffective, unless the invention be of such a nature that its author can use and enjoy it without disclosing it to others. Has an author, musical composer, artist, or inventor a property in his literary, musical, or artistic creation, or in his invention, re- garded as an incorporeal thing? If he have, this will furnish him with another and effective means of preventing the use and enjoy- ment of his creation or invention by others without his consent. If such a property exist, it is not created by the State, but is de- duced as a consequence of the creation or invention. If such a property does not exist otherwise, doubtless it might be created by the State ; but it is believed that no State ever has created such at property. That an author or musical composer has such a property in his creations before publication of them, using the term publication in its ordinary acceptation, is well settled by authority, and seems clear upon principle. And if such a property exists before publi- cation, there seems to be no good reason why publication should put an end to it. Yet it must be, it seems, deemed settled by authority that such property ceases on publication, though whether because of publication, or in consequence of the expressed will of the Legislature, is not clear. What has been said in the last paragraph of an author and musical composer seems to be true also of an artist, though there is a dearth of authority on this question in regard to artists. As an invention cannot be embodied in a chattel, and so is in- capable of ownership regarded as a chattel, so it is incapable of ownership regarded as an incorporeal thing. For an inventor to become owner of his invention would be like an author's becoming owner of the ideas expressed in his literary composition merely because he was the first to express them. It is a well-known fact that the same thing is often invented by different persons at nearly the same time and independently of each other ; and shall the in- ventor who happens to be first ki time deprive all subsequent inventors forever of the right to use their own inventions? Such a right in a first inventor would be intolerable, and would bear no resemblance to an author's musical composer's or artist's right of property in his own literary, musical, or artistic creation. Such a right as the latter imposes no restraint whatever upon other liter- ary, musical, or artistic creations ; and in fact it clashes with the interests of only one class of persons, namely, those who desire to reap where others have sown.