Are Patents and Copyrights Morally Justified? - Tom G. Palmer

840 HaruardJournal ofLaw & Public Policy [Vol. iS
That the publisher does not conduct his business in his own
name, but in that ofanother, is confirmed by certain obligations
which are universally acknowledged. Were the author
to die after he had confided his [manuscript] to the publisher
for printing and the publisher had agreed to the conditions,
still the publisher is not free. In default of heirs, the public
has a right to compel him to publish it, or to give over the
[manuscript] to another who may offer himself as publisher.
For it had been a business which the author, through him,
wished to carry on with the public, and for which he offered
himself as agent. [H]e [the publisher] possesses the [manuscript]
only on condition that he shall use it with the public
in the interest of theauthor. If the publisher should mutilate
or falsify the work after the death of the author, or if he
should fail in producing a number ofcopies equal to the demand,
then the public would have the right to require him to
enlarge the edition and to exact greater accuracy, and, if he
refused to meet these demands, to go elsewhere to get them
complied with. 9 ’
Importantly, Kant limits these rights against copiers or mutilators
to literary products and denies them to the plastic and
representational arts. 92 Kant wrote:
Works of art, as things, can, on the contrary, from a copy of
them which has been lawfully procured, be imitated, modelled,
and the cdpies openly sold, without the consent of the
creator of their original, or of those whom he has employed
to carry out his ideas. A drawing which some one has
designed, or through another caused to be copied in copper
or stone, metal or plaster ofParis, can by those who buy the
production be printed or cast, and so openly made traffic of.
So with all which any one executes with his own things and
in his own name, the consent ofanotheris not necessary. For
it is a work—an opus, not an opera alterius—which each who
possesses, without even knowing the name of the artist, can
dispose of, consequently can imitate, and in his own name
expose for sale as his own. But the writing of another is the
speech of a person—opera—and he who publishes it can only
speak to the public in the nameofthe author. He himselfhas
nothing further to say than that the author, through him,
makes the following speech to the public. 93
Thus, the key to Kantian copyright is speech; when no speech is
present, no copyright accrues to the creator. Accordingly, Kant
claimed consistently that translations or derivative works can-
91. Id. at 584.
92. This may reflect the fact that Kant was a writer and not a sculptor.
93. Id. at 585.