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The Myth of Copyright at Common Law

Published online by Cambridge University Press:  27 June 2003

Ronan Deazley
Ronan Deazley*
Affiliation:
University of Durham
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Copyright law is in crisis. The law, as it currently stands, is considered by some to be technologically challenged, discriminatory, and overly complex; others wonder about its ability to address effectively the many challenges thrown up by the digital and internet revolutions. Both the US and the EU have responded to such concerns in the guise of the American Digital Millennium Copyright Act and the new European Copyright Directive respectively. This time of unprecedented technological development demands a necessary reappraisal of the copyright regime; we need to ask, what should copyright law do? Should its primary concern lie with the author (the copyright owner) or with society (the copyright user)? Traditional analyses suggest that at common law the author had a natural right to print and reprint his work, but that this common law right was impeached with the passing of the Statute of Anne of 1709 in the interests of the encouragement of learning and the dissemination of ideas. In short, the pre-existing common law rights of the author were impinged upon in the interests of society. This reading of the origins of the nature of copyright first took root with the seminal decision of Donaldson v. Becket (1774). It is this orthodox analysis that the author seeks to challenge.

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The Cambridge Law Journal , Volume 62 , Issue 1 , 01 March 2003 , pp. 106 - 133
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Copyright © Cambridge Law Journal and Contributors 2003

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References

1 A. Christie, “A Proposal for Simplifying United Kingdom Copyright Law” [2001] 1 E.I.P.R. 26-43; M. Wing and E. Kirk, “European/U.S. Copyright Law Reform: Is a Balance Being Achieved?” [2000] I.P.Q. 138-63; A. Brimelow, “Does Intellectual Property Need a New Set of Wheels” [2001] E.I.P.R. 44-48.

2 Donaldson v. Becket (1774) 4 Burr. 2408.

3 8 Anne, c. 21. The 28 year protection was made up of two 14 year terms: section 1.

4 Prior to the passing of the Statute of Anne the London book trade received protection for their published works in the guise of the Licensing Act 1662 13&14 Car. 2, c. 33. This Act lapsed in May 1695.

5 For various accounts of the development of the law at this time see: Feather, J., Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London 1994)Google Scholar; Patterson, L.R., Copyright in Historical Perspective (Nashville 1968)Google Scholar; Ransom, H.H., The First Copyright Statute (Austin 1956)Google Scholar.

6 Op. cit., at p. 62.

7 Op. cit., at p. 150.

8 Section 4.

9 Section 7.

10 Patterson, op. cit., pp. 144-145.

11 10 Anne, c. 19.

12 Section 63.

13 Section 101.

14 Section 112.

15 See for example Eyre v. Walker (1735) 1 Black W. 331, Mane v. Faulkner (1735) 1 Black W. 331, Walthoe v. Walker (1737) 1 Black W. 331 and Tonson v. Walker (1739) 1 Black W. 331 in which the plaintiffs sought injunctions from the Court of Chancery to protect works by authors who fell outside the protection of the 1709 Act.

16 The booksellers tried twice, in 1735 and in 1737, to secure a new Act to replace the existing Statute of Anne. See: A Bill for the better Encouragement of Learning and the more effectual securing of the Copies of Printed Books to the Authors or Purchasers of such Copies, during the Times therein mentioned, (1735) Bod. Lib. M.S. Carte 114 391-396; A Bill for the Better Encouragement of Learning by the more Effectual Securing the Copies of Printed Books to the Authors or Purchasers of such Copies, (1737) BL B.S. 68/16 (1).

17 There exist a number of documents relating to this action available in the British Library, London, and the Advocate's Library, Edinburgh. See for example: Petition of the Booksellers of London against the Booksellers of Edinburgh and Glasgow (15 July 1746), Answers for the Booksellers of Edinburgh and Glasgow to the petition of Andrew Millar and other Booksellers in London (29 July 1746) and Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, (21 December 1746), Bodleian Library, Vet.A4.e.2197. See also Parks, (ed.), The Literary Property Debate: Seven Tracts, 1747-1773 (London 1974)Google Scholar.

18 The Case of the Appellants, 8 February 1751, BL B.M. 18th century reel 4065/03; The Case of the Respondents, 11 February 1751, BL B.M. 18th century reel 4065/04.

19 Tonson v. Collins (1761) 1 Black. W. 301; Tonson v. Collins (1762) 1 Black. W. 329.

20 Millar v. Taylor (1768) 4 Burr. 2303. While the judgment of the court was handed down in April 1769, the court had earlier decreed that as Millar had died on 8 June 1768 its decision was to be treated as if it had been delivered on 7 June 1768. See also Burrow, , The Question Concerning Literary Property (London 1773)Google Scholar BL B.M. 515.f.16.(1).

21 Ibid.

22 Ibid., pp. 115-116.

23 Following Millar's death, Becket and others had purchased his rights in The Seasons.

24 See Donaldson v. Becket (1774) 2 Bro. P.C. 129.

25 L.J. vol. 33, pp. 476, 483, 492.

26 K. Bowry, “Who's Writing Copyright History?” [1996] E.I.P.R. 322-329, 322.

27 Gaines, J., Contested Culture: The Image, the Voice, and the Law (London 1992), at p. 23Google Scholar. See also Kernan, A., Samuel Johnson and the Impact of Print (New Jersey 1987)Google Scholar and Woodmansee, M., “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’” (1983-1984) 17 Eighteenth Century Studies 425448Google Scholar.

28 Rose, M., Authors and Owners. The Invention of Copyright (London 1993), at p. 30Google Scholar.

29 Coombe, R.J., “Challenging Paternity: Histories of Copyright” (1994) 6 Yale Journal of Law and the Humanities 397422, 400Google Scholar.

30 Op. cit., at p. 142.

31 Garnett, K.M., Rayner James, J.E., Davies, G. (eds.), Copinger and Skone James on Copyright, 14th edn., vol. 1 (London 1999), para. 216Google Scholar.

32 Ibid. Similarly see: Laddie, H., Prescott, P., Vitoria, M., Speck, A., Lane, L. (eds.), Laddie Prescott and Vitoria, The Modern Law of Copyright and Designs, 3rd edn., vol. 1 (London 2000), pp. 55, 321Google Scholar; Torremans, P., Holyoak & Torremans, Intellectual Property Law, 3rd edn. (London 2001), at p. 10Google Scholar.

33 D. Brennan and A. Christie, “Spoken Words and Copyright Subsistence in Anglo-American Law” No. 4 [2000] I.P.Q. 309-349, 317.

34 Ibid., at p. 315. Brennan and Christie do make the point that “at least two of [the Lords] members doubted the existence prior to 1709 of any common law right in the copy”; ibid.

35 Ibid., at p. 316.

36 Burkitt, “Copyrighting Culture—The History and Cultural Specificity of the Western Model of Copyright” No. 2 [2001] I.P.Q. 146-186, 152-153.

37 Stevens, R., Law and Politics. The House of Lords as a Judicial Body, 1800-1976 (London 1979)Google Scholar; Turberville, A.S., The House of Lords in the Reign of William III (Oxford 1913)Google Scholar; Turberville, , The House of Lords in the Eighteenth Century (Oxford 1927)Google Scholar; Turberville, , The House of Lords in the Age of Reform, 1784-1837 (London 1958)Google Scholar; T. Beven, “The Appellate Jurisdiction of the House of Lords” 17 L.Q.R. 357-371; A.J. Rees, The Practice and Procedure of the House of Lords 1714-1784, Doctoral Thesis, University of Wales, Aberystwyth, April 1987.

38 See Rees, ibid., at p. 187.

39 Shirley v. Fagg (1675) 6 St.Tr. 1121.

40 Turberville, The House of Lords in the Eighteenth Century, pp. 8-9.

41 Op. cit., at p. 13.

42 Ibid., at p. 152.

43 Turberville, The House of Lords in the Age of Reform, at p. 200.

44 Bertie v. Falkland (1696) 1 Salkeld. 231.

45 Bishop of London v. Ffytche (1783) 2 Bro. P.C. 211.

46 Seymour v. Lord Euston (1805-1806) Cobbett, Parliamentary Debates, Vol.7, 577, 669.

47 17 L.Q.R. 357, 366-370.

48 The reason this took so long was because Donaldson's case had been laid before a Mr. Chambers (i.e. Robert Chambers, Vinerian Professor of English Law at the University of Oxford), Lord's counsel, for “perusal and approbation”. Chambers however had since been “appointed one of the judges to go to the East Indies” as a result of which he had not settled Donaldson's case until 7 January 1774: L.J. vol. 34, at p. 13.

49 L.J. vol. 34, at p. 19.

50 Ibid., at p. 20.

51 Op. cit., at p. 176.

52 L.J. vol. 34, pp. 12-13, 19, 20, 21, 23-24, 26-28, 29-30, 32; Donaldson v Becket (1774) 4 Burr. 2408.

53 Cobbett's Parliamentary History of England, vol. 17, pp. 953-1003.

54 Reprinted in Parks, (ed.), The Literary Property Debate: Six Tracts, 1764-1774 (London 1975)Google Scholar.

55 Ibid.

56 Donaldson v. Becket (1774) 2 Bro. P.C. 129.

57 Donaldson v. Becket (1774) 4 Burr. 2417. Birrell echoes this observation, writing that Mansfield, C.J. “did not think fit to attend, considering himself too deeply committed”; Birrell, A., Copyright in Books (London 1899), at p. 124Google Scholar. For more on the reasons as to Mansfield's silence, see Rose, op. cit., pp. 99-101.

58 Op. cit., pp. 124-127. See also Laddie, Prescott, Vitoria, Speck, Lane (eds.), The Modern Law of Copyright, at p. 55.

59 This is sometimes represented as an 8 to 3 vote. See for example Whicher, J.F., “The Ghost of Donaldson v Beckett: An Inquiry into the Constitutional Distribution of Powers over the Law of Literary Property in the United States—Part 1” (1981) 29 Copyright Society of the USA 102-151, 128Google Scholar.

60 Abrams, H., “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright” (1983) 29 Wayne Law Review 1119-1191Google Scholar, Appendix A, 1188.

61 My emphasis.

62 L.J. vol. 34, pp. 29, 30, 32.

63 Op. cit., pp. 154-158. See Abrams, op cit., pp. 1166-1169.

64 Cobbett, at p. 975, Pleadings, pp. 17-18, and the Gentleman's report, at p. 35.

65 Note that while the Burrow's account is identical to that of the Lord's Journal, Abrams incorrectly suggests that Burrow in fact recorded a “no” vote from Perrott on this point. See Abrams, op. cit., at p. 1189.

66 Op. cit., at p. 983. Cobbett's report is essentially the same as both the Pleadings and the Gentleman's accounts.

67 Ibid., pp. 981-983.

68 Again, as was the case with Perrott B., Abrams records a “no” vote, rather than this “conditional yes” vote. Abrams, while commenting that Adams B.'s “position on rights in unpublished manuscripts is ambiguous” records a “yes” vote in Cobbett's account and continues that the Pleadings and the Gentleman's reports “do not touch the question”. This is hard to square with the fact that all three reports recount that Adams B. answered all five questions in the negative.

69 Op. cit., at p. 1190.

70 Cobbett records his opinion that “till of late years no idea was entertained that a commonlaw right existed respecting what was now termed literary property … He was clearly of the opinion that, previous to the statute of queen Anne, authors and printers had no security but by patents … [and that] [t]he Act most evidently created a property which did not exist before”; op. cit., at p. 985.

71 Ibid., pp. 984-985. Both the Pleadings and the Gentleman's reports fail to record Gould J.'s answer to either the second or the fourth question.

72 Cobbett, the Pleadings and the Gentleman's report are all essentially the same.

73 Cobbett, op. cit., at p. 988.

74 Ibid., at p. 992.

75 See note 32 above and accompanying text.

76 See the various arguments that were elaborated both for and against the existence of the common law copyright in Midwinter, Tonson, Millar and Donaldson.

77 Cobbett, op. cit., pp. 993-997.

78 Camden commented that “[i]t was not for gain, that Bacon, Milton, Newton, Locke, instructed and delighted the world”; ibid., at p. 1000.

79 Ibid., at p. 994.

80 Ibid., pp. 999-1001.

81 Ibid., pp. 1001-1002.

82 Ibid., at p. 1002.

83 Gentleman’s, op. cit., pp. 55-56.

84 Gentleman’.s, op. cit., at p. 59.

85 Ibid., at p. 56.

86 Ibid., pp. 56-59.

87 Ibid.

88 Cobbett, op. cit., pp. 998-999.

89 See for the Gentleman's report, op. cit. pp. 53-58.

90 Only Cobbett provides any indication of the numbers involved in the vote itself; op. cit., at p. 1003.

91 C.J. vol. 34, at p. 513; my emphasis.

92 Ibid., pp. 588-590.

93 Ibid., pp. 665-666.

94 Ibid., pp. 668, 698.

95 Ibid., at p. 679.

96 These petitions came from New Malton, Nottingham, Bawtry, Leeds and Knaresborough. Ibid., at p. 757.

97 Ibid., at p. 788.

98 An Act for Relief of Booksellers and others, by vesting the Copies of Printed Books in the Purchasers of such Copies from Authors, or their Assigns, for a limited Time.

99 L.J. vol. 34, at p. 222.

100 Carter, H., A History of the Oxford University Press, Vol. 1, to the year 1780 (Oxford 1975), at p. 367Google Scholar.

101 C.J. vol. 35, at p. 299.

102 Ibid., pp. 340, 351, 370, 373.

103 15 Geo.III, c. 53. See L.J. vol. 34, pp. 451, 454, 455, 458, 462, 463, 470.

104 See the preamble and section 1.

105 Section 3.

106 Op. cit., at p. 1169.

107 Pleadings, op. cit., at p. 35.

108 My emphasis.

109 Laddie, Prescott, Vitoria, Speck, Lane (eds.), The Modern Law of Copyright, at p. 51.

110 Beckford v. Hood (1798) 7 T.R. 620.

111 Ibid., at p. 628.

112 Ibid., at p. 629.

113 Wheaton v. Peters (1834) 33 U.S. 591. Abrams describes Wheaton as defining “the underlying philosophy of copyright in the United States”; op. cit., at p. 1185.

114 Ibid., at p. 1183.

115 Wheaton v. Peters (1834) 33 U.S. 591, 656.

116 1&2 Geo.5, c. 46, section 3.

117 Op. cit., at p. 51.

118 Wing and Kirk, “European/US Copyright Law Reform”, at p. 161.