Rethinking Copyright: History, Theory, Language

Rethinking Copyright

For Matt the Hat (‘Hooray for granddad!’)

Rethinking Copyright History, Theory, Language

Ronan Deazley School of Law, University of Birmingham, UK

Edward Elgar Cheltenham, UK • Northampton, MA, USA

© Ronan Deazley, 2006 Jacket image: copyright © Ronald Searle, 1989, by kind permission of the artist and The Sayle Literary Agency. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited Glensanda House Montpellier Parade Cheltenham Glos GL50 1UA UK Edward Elgar Publishing, Inc. 136 West Street Suite 202 Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Deazley, Ronan. Rethinking copyright: history, theory, language/Ronan Deazley. p. cm. Includes bibliographical references and index. 1. Copyright—Great Britain. 2. Copyright—Great Britain—History. I. Title. KD1289.D435 2006 346.4104’82—dc22 2006044012 ISBN-13: 978 1 84542 282 0 (cased) ISBN-10: 1 84542 282 1 (cased) Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall

Contents Acknowledgements Table of cases Table of legislation

vii ix xiii

Introduction

1

1

History I: 1710–1774

13

2

History II: 1774–1854

26

3

History III: 1854–1912

56

4

Theory I: what copyright isn’t … or, conceiving the public domain

101

Theory II: what is copyright? … or, the case for intellectual property freedoms and privileges (and in that order)

135

Conclusion

167

5 6

References Index

178 191

v

Acknowledgements There are numerous people who have contributed in different ways in bringing this book to press. In the first place I would like to thank Ruth Soetendorp and Martin Kretschmer for kindly inviting me to spend a thoroughly productive research sabbatical in Bournemouth at the Centre for Intellectual Property Policy and Management during the early part of 2005. I would also like to thank the British Academy for their Small Research Grant Award, which allowed for an extended stay in London to carry out the necessary archival research which lies at the heart of the second and third chapters of this book. In addition, there are the many people who were kind enough to read various drafts of the various chapters herein and to comment thereupon; they are, in no particular order: Tom Allen, Lionel Bently, Danielle Crossley, Norma Dawson, Rosa Greaves, Martin Kretschmer, Philip Leith, Mark Rose, Ruth Soetendorp, Simon Stokes, and David Vaver. Particular thanks are due to Jamie Glister. No doubt there are people that I have forgotten to include; if so please accept my apologies in advance. As usual, all mistakes and so on are the author’s own.

vii

Table of cases Abernethy v. Hutchinson (1825) 1 H & TW 28 85 Adams v. Clementson (1879) 12 LR (Ch) 714 91 Aflalo and Cook v. Lawrence and Bullen (1902) 1 Ch 318 91 AG v. Guardian (No. 2) [1990] 1 AC 109 116 Albert v. Strange (1849) 1 M&G 25 76, 91 Allen v. Rawson (1845) 1 CB 551 68 Archbold v. Sweet (1832) The Times, 10 February 1832 45 Avonzo v. Mudie (1854) 10 Ex 203 57 Ashdown v. Telegraph Group [2002] Ch 149 116–17, 152–53, 155–56 Bach v. Longman (1777) 2 Cowp 623 29, 46, 54 Barnett v. Glossop (1835) 1 Scott’s 621 47 Beckford v. Hood (1798) 7 D&E 620 29–33, 39–40, 51 Bentley v. Foster (1839) 10 Sim 329 47 Bloxom v. Elsee (1827) 6 B&C 169 68 Boosey v. Davidson (1847) The Times, 22 June 1847 50 Boosey v. Davidson (1848) The Times, 7 June 1848 57 Boosey v. Fairlie (1877) 4 AC 711 75 Boosey v. Jeffreys (1851) 6 Ex Rep 580 43, 51–53, 57 Boosey v. Lonsdale (1841) The Times, 18 June 1841 47 Boosey v. Purday (1848) The Times, 30 June 1848 43, 57 Boosey v. Purday (1849) 4 Ex Rep 145 50–51, 57, 60 Bowden Brothers v. Amalgamated Pictorials Ltd [1911] 1 Ch 386 89 Boozey v. Tolkien (1848) 5 CB 476 43, 50 Boucicault v. Chatterton (1876) 35 LTR 541, 5 LR (Ch) 267 74–75, 153 Boucicault v. Delafield (1863) 1 H&M 597 57, 70–71, 153 Brooke v. Clarke (1818) 1 B&Ald 396 35–37 Brooke v. Milliken (1789) 3 TR 509 29 Brook v. Wenworth (1796) 3 Anst 881 29 Burnet v. Chetwood (1721) 2 Mer 441 115, 144 Buxton v. James (1851) 5 DeG&S 80 43, 57 Cabburn v. Lloyds (Ltd) (1909) 2 MCC 215 64 Cadell and Davies v. Robertson (1812) The Times, 7 March 1812 35 Caird v. Sime (1887) 12 AC 326 85–88 Capitol Records v. Naxos of America (2005) 4 NY3d 540 167–69, 176–77 Carnan v. Bowles (1786) 1 Cox 283 29 ix

x

Table of cases

Cary v. Kearsley (1803) 4 Esp 168 36 Cary v. Longman (1801) 1 East 358 31 Chappell v. Boosey (1882) 21 ChD 232 75 Chappell v. Purday (1841) 4 Y&C 485 48 Chappell v. Purday (1843) 12 M&W 303 49 Chappell v. Purday (1845) 14 M&W 303 49–50, 55, 57 Chatterton and Webster v. Cave (1875) 10 LR (CP) 572 91 Clementi v. Walker (1824) 2 B&C 861 43–44, 46 Cocks v. Lonsdale (1849) The Times, 29 March 1849 43, 50, 57 Cocks v. Purday (1846) 2 Car&K 269 50 Cocks v. Purday (1848) 5 CB 860 43, 57 Cocks v. Purday (1850) 12 Beav 451 57 Colburn v. Duncombe (1838) 9 Simons’ Rep 151 47, 53 Colburn v. Simms (1843) 2 Hare’s 543 47–48 Coleman v. Wathen (1793) 5 D&E 245 29–30, 154 Coyne v. Maxwell (1865) The Times, 7 and 10 June 1865 70, 155 Cumberland v. Copeland (1861) 7 H&N 118 155 Cumberland v. Planche (1834) 1 AD&E 580 45 D’Almaine v. Boosey (1835) 1 Y&C 288 44–47 Delondre v. Shaw (1828) 2 Sim 237 44–45 Designers Guild v. Russell Williams [1998] FSR 803 2 Designers Guild v. Russell Williams [2000] FSR 121 3 Designers Guild v. Russell Williams [2001] 1 All ER 700 2, 3 De Trusler v. Murray (1789) 1 East’s 363 29 Dewar v. Purday (1834) The Times, 18 June 1834 45 Donaldson v. Becket (1774) 4 Burr 2408, 2 Bro PC 129 5–6, 15–20, 22–25, 26–27, 30, 32, 37, 39–41, 45, 48, 50–55, 57–61, 64–67, 76–79, 84, 87–89, 92, 94, 142, 153, 168, 170, 173–74, 177 Du Bost v. Beresford (1810) 2 Camp 511 36 Eldred v. Ashcroft (2003) 537 US 186 167–68 Exchange Telegraph Company Limited v. Gregory & Co. [1896] 1 QB 147 86 Eyre v. Carnan (1781) 6 Bac Abr, 7th edn, 509 29 Eyre v. Walker (1735) 1 Black W 331 14, 77 Fellowes v. Chapman (1848) The Times, 8 December 1848 50, 57 Fisher v. Folds (1834) 1 Jones’ Exchequer Reps 12 53–54 Fishburn v. Hollingshead (1891) 2 Ch 371 75 Fraser v. Edwards (1905) 2 MCC 10 64 Forrester v. Waller (1741) PRO C 11 867/54 76 Gyles v. Wilcox (1741) 2 Atk 141 144 Glynn v. Weston Feature Films [1916] 1 Ch 261 116 Guichard v. Mori (1831) 2 Coopers 216 44, 46, 61

Table of cases

xi

Hawkesworth v. Newbery (1774) Lofft 775 26, 28–29 Hime v. Dale (1803) 11 East 244 36 Hubbard v. Vosper [1977] 2 QB 84 115 Hyde Park v. Yelland [2001] Ch 143 116 In Re Dickens, Dickens v. Hawksley [1935] Ch 267 95–97 Jeffreys v. Boosey (1854) 4 HLC 815 24–25, 31, 38, 40, 43, 50, 53, 55, 56–79, 82–89, 92–95, 154, 169–77 Keene v. Wheatley (1860) 14 F.Cas. 180 154 La Cienega Music Co. v. ZZ Top [1995] 516 US 927 169 Lacy v. Rhys (1864) 4 B&S 873 155 Lawrence v. Smith (1822) Jacob 471 116 Levy v. Rutley (1871) 6 LR (CP) 523 74, 91 Lion Laboratories v. Evans [1985] QB 526 116 Low v. Routledge (1864) 10 LTR 838 57, 71–72 Low v. Routledge (1865) 1 LR (Ch App) 42 71–72 Low v. Ward (1868) 6 LR (Eq) 415 73–74 Lover v. Davidson (1856) 1 CB (NS) 182 57 Mabe v. Connor (1909) 1 KB 505 87 Macklin v. Richardson (1771) Amb 694 76, 153–54 MacMillan v. Dent [1907] 1 Ch 107 64 Mansell v. Valley Printing Co. [1908] 2 Ch 441 64, 88–89, 97 Marzials v. Gibbons (1874) 9 LR (Ch App) 518 74 Marsh v. Conquest (1864) 17 CB (NS) 418 154–55 Millar v. Taylor (1768) 4 Burr 2303 5–6, 15–17, 26, 29–30, 39–42, 48, 50–51, 53–54, 66–67, 77–80, 82, 84, 88, 94, 97, 113, 138, 142, 153, 168, 170, 177 Monckton v. The Gramophone Company Ltd (1911–12) 28 TLR 205 64, 87–89 Motte v. Faulkner (1735) 1 Black W 331 14, 77 Murray v. Benbow (1822) The Times, 2 February 1822 116 Murray v. Bohn (1850) The Times, 8 August 1850 57 Murray v. Bogue (1852) 1 Drewry 353 57 Murray v. Dugdale (1823) The Times, 22 July 1823 116 Murray v. Elliston (1822) 5 B&Ald 657 32, 45, 154 Murray v. Heath (1831) 1 B&AD 804 45 Murray v. Limbird (1828) The Times, 10 December 1828 45 Newark v. National Phonographic (1907) 23 TLR 439 87 Norowzian v. Arks (No. 2) [2000] FSR 363 3 Norton v. Churton (1835) The Times, 16 July 1835 116 Novello v. Sudlow (1852) 12 CBR 177 43, 52–53, 57 Novello v. James (1851) The Times, 25 March 1851 43, 57 Ollendorf v. Black (1850) 4 Deg&S 209 57

xii

Table of cases

Osbourne v. Vitzelly (1885) 1 TLR 17 75 Page v. Townsend (1832) 5 Sim 395 43–44 Pepoli v. Laporte (1837) The Times, 17 June 1837 47 Philip v. Pennell (1907) 2 MCC 91 64 Platt v. Walter (1867) 17 LTR 157 71 Pope v. Curl (1741) 2 Atk 342 76 Power v. Walker (1814) 3 M&S 7 36, 43 Queensbury v. Shebbeare (1758) 2 Eden 328 76 Reade v. Conquest (1861) 9 CB (NS) 755 68–70 Reid v. Maxwell (1886) 2 TLR 790 75 Re The Musical Compositions ‘Kathleen Mavourneen’ and ‘Dermot Astore’, ex p. Hutchins and Romer (1879) 4 QBD 483 74 Richardson v. Universities of Oxford and Cambridge (1804) 3 Cooper’s Cases 564 56 Routledge v. Low (1868) 3 LTR 100 71–75 Roworth v. Wilkes (1807) M&R 94 35 Sayre v. Moore (1785) 1 East’s 361 29 Shepherd v. Conquest (1856) 17 CB 427 67–69 Southey v. Sherwood (1817) 2 Mer 435 116 Spiers v. Brown (1857) The Times, 11 December 1857 57 Stockdale v. Onwhyn (1826) 5 B&C 174 45, 116 Storace v. Longman (1788) 11 East’s 244 29 The Exchange Telegraph Co. v. Howard (1906) 22 TLR 375 64 Thomas v. Turner (1886) 23 ChD 292 91 Tonson v. Walker (1739) 1 Black W 331 14, 77 Tonson v. Collins (1761) 1 Black W 301 14, 32 Tonson v. Collins (1762) 1 Black W 329 14 Toole v. Young (1874) 9 LR (QB) 523 155 Tuck v. Priester (1887) 19 QBD 48 82–85, 89 Trustees of the British Museum v. Payne (1827) 4 Bing 540 45, 47 University of Cambridge v. Bryer (1812) 16 East’s 317 33–34, 37, 60, 62 Walthoe v. Walker (1737) 1 Black W 331, PRO C 11 1181/156 14, 77 Walter v. Lane (1899) 2 Ch 729 85 Walter v. Lane (1900) AC 539 85 Webb v. Rose (1732) PRO C.11 1881/156 76 West v. Francis (1822) 5 B&Ald 737 45 White v. Geroch (1819) 2 B&Ald 298 37 Whittingham v. Wooler (1817) 2 Swan 428 154 Wheaton v. Peters (1834) 33 US 591 40, 60, 154, 169–70, 172–73, 176

Table of legislation (The Statute of Anne) An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned 1709, 8 Anne, c. 19 13, 21, 23, 30, 33–34, 36–37, 53–54, 64, 76, 79, 81, 108–109, 121, 144, 159, 162, 168 Appellate Jurisdiction Act 1876, Vict. 39 & 40, c. 59 58 The Berne Convention 145 Broadcasting Act 1996, c. 55 129 Charter of the Fundamental Rights of the European Union 2000 135–37 Copyright (Application to Other Countries) (Amendment) Order 2003, SI 2003/774 149 Copyright (Bermuda) Order 2003, SI 2003/1517 149 Copyright (Certification of Licensing Scheme for Educational Recording or Broadcasts) (Open University) Order 2003, SI 2003/187 149 Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts and Cable Programmes) (Educational Recording Agency Limited) (Amendment) Order 2003, SI 2003/188 149 Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Order 2005, SI 2005/222 149 Copyright (Educational Establishments) Order 2005, SI 2005/223 149 Copyright (Gibraltar) Order 2005, SI 2005/853 149 Copyright (Musical Compositions) Act 1882, 45 & 46 Vict., c. 40 144 Copyright (Visually Impaired Persons) Act 2002 (Commencement) Order 2003, SI 2003/2499 149 Copyright (Visually Impaired Persons) Act 2002, c. 33 131, 149 Copyright Act 1801, 41 Geo. 3, c. 107 53 Copyright Act 1814, 54 Geo. 3, c. 156 36, 53–55 Copyright Act 1842, 5 & 6 Vict., c. 45 37, 71–72, 87, 144, 155 Copyright Act 1911, 1 & 2 Geo. 5, c. 46 87, 94, 145–47, 151, 167 Copyright Act 1956, c. 74 147–48, 151 Copyright and Performances (Application to Other Countries) Order 2005, SI 2005/852 149 Copyright and Related Rights Regulations 1996, SI 1996/2967 114, 150 xiii

xiv

Table of legislation

Copyright and Related Rights Regulations 2003, SI 2003/2498 125, 149, 150, 158 Copyright Designs and Patents Act 1988, c. 48 102, 104, 106–107, 111, 113–14, 117, 126–29, 147–50, 153, 156 Digital Millennium Copyright Act 1998, 17 USC § 1201 125 (The Copyright Duration Directive) Directive harmonising the term of protection of copyright and certain related rights, 93/98/EEC 36, 110, 147 (The Information Society Directive) Directive on the harmonisation of certain aspects of copyright and related rights in the information society, 2001/29/EC 120, 124–26, 149, 151, 156–59 (The Rental Rights Directive) Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property, 92/100/EEC 106–107 (The Software Directive) Directive on the legal protection of computer programs, 91/250/EEC 129 Dramatic Copyright Act 1833, 3 & 4 Will. 4, c. 15 68, 74, 144, 153 Duration of Copyright and Rights in Performances Regulations 1995, SI 1995/3297 147 Electronic Commerce (EC Directive) (Extension) (No. 2) Regulations 2003, SI 2003/2500 149 Engraving Copyright Act 1735, 8 Geo. 2, c. 13 31, 35, 144 Engraving Copyright Act 1767, 7 Geo. 3, c. 38 31, 35, 144 European Convention on Human Rights 135 European E-commerce Directive, 2003/31/EC 149 Fine Arts Copyright Act 1862, 25 & 26 Vict., c. 68 83, 144, 146 Human Rights Act 1998, c. 42 116, 152 International Copyright Act 1838, 1 & 2 Vict., c. 59 56 International Copyright Act 1844, 7 & 8 Vict., c. 12 56 International Copyright Act 1886, 49 & 50 Vict., c. 33 74 International Covenant on Economic, Social and Cultural Rights 136 Lectures Copyright Act 1835, 5 & 6 Will. 4, c. 65 86, 144 Legal Deposit Libraries Act (Commencement) Order 2004, SI 2004/145 149 Legal Deposit Libraries Act 2003, c. 28 149 Licensing Act 1662, 13 & 14 Car. 2, c. 33 76, 108, 143, 159 Musical Copyright Act 1906, 6 Edw. 7, c. 36 144 Prints Copyright Act 1776, 17 Geo. 3, c. 57 144 Sculpture Copyright Act 1814, 54 Geo. 3, c. 56 144 Unfair Contract Terms Act 1977, c. 50 128 Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 128 Universal Declaration of Human Rights 136 Universities Act 1775, 15 Geo. 3, c. 53 22–23

Introduction Having published my first book, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain, 1695–1775 (On the Origin of the Right to Copy),1 in July 2004, I did what every first author does – I waited nervously for the reviews (if any). The first, by Simon Stokes, appeared in February 2005 in the Entertainment Law Review. Stokes, an intellectual property practitioner and himself an author,2 was generous indeed: ‘persuasively argues’; ‘shed[s] fresh light’; ‘a fascinating work of legal history’, and so on. He finished his review as follows: Whilst Deazley does not directly address the current copyright debate, the reviewer would argue that the development of copyright in the twentieth and twenty-first centuries has been a steady erosion of the public domain, often justified by the need to protect author’s rights (which rights are increasingly in the hands of the large global media corporations). By piercing some cherished assumptions about copyright and authors’ rights, and in particular through demolishing as a “myth” the traditional view about the development of copyright and displacing the centrality of the modern proprietary author as the raison d’etre of the copyright system, Deazley’s book is welcome ammunition to those who would try to reassert the public domain.3

The review was certainly timely. When it was published I was based in Bournemouth, on a research sabbatical at the Centre for Intellectual Property Policy and Management,4 working on the first rough drafts for this book. I had done considerable work on the second and third chapters (the ‘history’ bit) although more was to follow, and was beginning to consider the shape and structure of the fourth and fifth chapters (the ‘theory’ bit). As if in dialogue with Stokes, a dialogue about which until that time I was unaware (a very

1 Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain, 1695–1775, Oxford: Hart Publishing. 2 See for example: Stokes, S. (2003), Art & Copyright, Oxford: Hart Publishing; Stokes, S. (2005), Digital Copyright, Oxford: Hart Publishing. 3 Stokes, S. (2005), Entertainment Law Review, p. 41. For other reviews, good, bad and indifferent, see: Gummow, W.M.C. (2005), Australian Law Journal, p. 92; Adams, J.N. (2005), Intellectual Property Quarterly, p. 222; Alexander, I. (2005), Cambridge Law Journal, p. 510 and Budd, A. (2005), Times Literary Supplement, 15 July 2005. 4 See www.cippm.org.uk.

1

2

Rethinking copyright

post-modern affair), I had already begun work on a book which I hoped would engage directly with the current copyright debate, and in a way that touched upon a number of the themes articulated in the concluding paragraph of his review: the exponential growth of copyright throughout the last hundred years; the nature and significance of the relationship between copyright and the public domain; and the place of rhetoric and myth-making in framing and determining contemporary copyright policy and discourse. However, before further sketching out the substance and aims of this book, let me turn to a case which I have commented upon elsewhere and which, more than any other copyright decision of the UK courts in recent years, acted as a spur for this current enterprise: Designers Guild v. Russell Williams [2001] (Designers Guild).5 Anyone familiar with UK copyright law will be familiar with Designers Guild, which concerned an allegation of unlawful copying between two wallpaper manufacturers. In August 1995 the claimants launched a new range of designs under the title Orientalis. One design from the range, the Ixia, which proved to be a considerable commercial success, consisted of a striped pattern with flowers scattered over it, in what was referred to as ‘a somewhat impressionistic style’. It was a design which, in the words of the claimants’ designer, had been inspired by ‘the handwriting and feel’ of the French impressionist Henri Matisse. One year after the claimants launched their Orientalis range a distributor for the defendant design company displayed a wallpaper fabric, entitled Marguerite, at a trade fair in Utrecht. Marguerite also consisted of a striped design with scattered flowers overlaid in a similar style. Convinced that the copyright in their wallpaper design had been infringed, the claimants commenced proceedings in December 1996. At the trial the issue for Collins QC was whether the defendant had copied the Ixia design, and if so whether they had copied a substantial amount of that design. Concentrating primarily upon whether there was sufficient evidence to establish a finding of copying, Collins QC, observing that the defendant had adopted the ‘essential features and substance’ of the original design, held in favour of the claimant.6 The defendant appealed not upon the finding of copying but upon the finding that they had copied a substantial amount of the work. The Court of Appeal, led by Morritt LJ, overturned the previous decision holding that while the defendant had copied the idea of the Ixia design, as well as adopting several of the artistic techniques employed in the execution of that design, they had not copied a substantial part of the 5 Designers Guild v. Russell Williams [2001] 1 All ER 700; see Deazley, R. (2004), ‘Copyright in the House of Lords: Recent Cases, Judicial Reasoning and Academic Writing’, Intellectual Property Quarterly, p. 121. 6 Designers Guild [1998] FSR 803.

Introduction

3

claimant’s copyright work.7 The claimants appealed again, whereupon the House of Lords unanimously agreed to overturn the decision of the Court of Appeal upon the basis that the Court of Appeal had erred in principle in exercising its appellate jurisdiction to reconsider what was essentially a question of fact for the trial judge.8 The purpose for revisiting Designers Guild is not to embark upon an examination of the various merits and demerits of the decision itself, or the judicial reasoning therein,9 but to draw upon one aspect of the one opinion with which all of the Lords were in agreement – Lord Bingham’s statement as to the ‘very clear principle’ upon which copyright law rests: ‘[T]hat anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown’.10 For such a short synopsis, there is much to unpack. Begin by considering the image which Lord Bingham’s observation conjures up in the mind’s eye: the farmer toiling in the fields, turning the sod, sowing and nurturing his crop, only to lose the product of his labour to an undeserving other. For the farmer, read the struggling author; for his crop, read the original literary, dramatic, musical or artistic work; for those who reap what they have not sown, read the copyright pirate and thief. The image has a powerful, rhetorical (and if not biblical11 then certainly bucolic) appeal, providing a simple and seemingly self-evident premise upon which to base a copyright regime. More than this however, it invokes a theoretical and historical provenance that leads us back in time to the late seventeenth century, to the founding of the modern British state, to the political philosophy of John Locke, and in particular to his Second Treatise on Government: 7

Designers Guild [2000] FSR 121. As Lord Hoffman observed: ‘[B]ecause the decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, I think that this falls within the class of case in which an appellate court should not reverse a judge’s decision unless he has erred in principle’; Designers Guild [2001], p. 707. Lord Hoffman made reference to the comments of Buxton LJ in Norowzian v. Arks (No. 2) [2000] FSR 363, p. 370: ‘[W]here it is not suggested that the judge has made any error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court … will be different from that of the judge’. 9 For that, see Deazley, supra n. 5. 10 Designers Guild [2001], p. 701. Interestingly, in the latest edition of Copinger and Skone James on Copyright, the authors rely upon this very dicta in a commentary upon the ‘Nature of Copyright’; Garnett, K., Davies, G. and Harbottle, G. (eds) (2005), Copinger and Skone James on Copyright, 15th edn, London: Sweet & Maxwell, p. 23. 11 Think for example of the right of Abraham to maintain his well because he had ‘digged his well’ (Genesis 21:30) or of the simple principle that ‘thou shalt not steal’ (Exodus 20:15). 8

4

Rethinking copyright [E]very man has a property in his own person … The labour of his body, and the work of his hands … are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.12

As with Lord Bingham’s toiling farmer labour is the key, and as is the case for the labour of the hand, then why not similarly for the labour of the head? Open any standard text (introductory or otherwise) on copyright or intellectual property and you will usually come across some reference to Locke’s ‘labour theory’ as one of a number of plausible foundational principles upon which to build a system of copyright, albeit one which has of late fallen out of favour.13 If you bother to look, you will generally find it rubbing up against other more contemporary and more easily digested justifications which rely upon alternative political, social and/or economic rationales.14 And yet it is in the concept of labour, and labour theory, that Lord Bingham most readily locates the basic premise of copyright.15 12 Locke, J. (1690), Second Treatise on Government, s. 27, reprinted in Gough, J.W. (ed.) (1966), Oxford: Blackwell. 13 It has not fallen out of favour with all authors however; consider for example Bainbridge who comments that: ‘The basic reason for intellectual property is that a man should own what he produces, that is, what he brings into being. If what he produces can be taken from him, he is no better than a slave. Intellectual property is, therefore, the most basic form of property because a man uses nothing to produce it other than his mind’; Bainbridge, D. (2002), Intellectual Property, 5th edn, Harlow: Longman, p. 17. For a more sophisticated articulation of labour theory as a suitable principle upon which to base a system of copyright see, for example, almost anything written by Wendy Gordon. 14 Typically these involve justifications based upon innovation, incentive and reward, the advancement of knowledge, the avoidance of the tragedy of the commons, or simply the moral right of the author. 15 For one explanation as to why this might be the case see Sterk, S.E. (1995–96), ‘Rhetoric and Reality in Copyright Law’, Michigan Law Review, p. 1197, in which the author writes that ‘[o]ne explanation for the general failure to question [dominant] copyright rhetoric is that the participants in the lawmaking process – not only legislators and judges, but also lawyers, opinion-makers, and persons with wealth and political influence – have a self-interest in widespread acceptance of the proposition that authors deserve to benefit from their work. Rejecting the argument that authors deserve returns from their labours also would undermine the claim that prosperous members of society deserve their prosperity … If authors do not deserve incomes commensurate with their educational backgrounds, then how can other professionals justify high compensation based on their educational attainments? … If copyright

Introduction

5

One explanation for Lord Bingham’s adherence to the labour construct no doubt lies in the fact that this particular theoretical perspective is historically contingent with the emergence of copyright legislation within the UK itself. The writings of John Locke loomed large on the political landscape at the same time as the need for a statutory system of copyright protection was being lobbied within Parliament, which efforts would eventually lead to the passing of the [An] Act for the Encouragement of Learning by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned 1709 (the Statute of Anne).16 This synergy between the historical and the theoretical is further augmented by the fact that the same texts (in which you will find the various justifications for copyright) in the main provide an orthodox, if brief, historical snapshot of the development of copyright prior to and throughout the eighteenth century, an account which more often than not includes the significant mid-century debates concerning the existence (or not) of copyright at common law – that is, a copyright based upon the natural right of an author to his work (for which read ‘labour theory’), and which predated statutory copyright in the guise of the Statute of Anne. This is the story of the ‘battle of the booksellers’ and of the two seminal decisions of Millar v. Taylor (1768) 4 Burr 2303 (Millar), and Donaldson v. Becket (1774) 4 Burr 2408 (Donaldson), which story is considered at length in On the Origin of the Right to Copy,17 and which is recounted in brief in the first chapter of this work. Suffice to say that, for the moment, the history presented in the mainstream texts is one which acknowledges the existence of this common law copyright (as historical fact),18 and so by extension implicitly embraces the conceit of protection is necessary to ensure financial rewards for authors, and if authors, by virtue of their education and innate abilities, resemble other people [such as lawyers] who reap generous financial rewards, then authors must deserve copyright protection’, ibid., pp. 1247–48. 16 Statute of Anne 1709, 8 Anne, c. 19. Indeed one standard text makes specific reference to ‘the plea of the philosopher, John Locke’ who at the time ‘demanded a copyright for authors which he justified by the time and effort expended in the writing of the work which should be rewarded like any other work’; Garnett et al., supra n. 10, p. 34. In this the authors are certainly overstating the case. For a discussion of Locke’s involvement in the copyright question at the end of the seventeenth and start of the eighteenth centuries, see Deazley, supra n. 1, Chapter 1. 17 Supra, n. 1. 18 See for example Torremans who writes that ‘before publication the author could rely on certain rights of literary property at common law to obtain protection against unauthorised copying’; or Bainbridge who acknowledges that ‘the author did have common law rights that were potentially perpetual’; or Cornish & Llewelyn who note that in the eighteenth century ‘[i]t was not difficult to argue that an author ought to have some protection over his work before it was published. Since this went uncovered by the [Statute of Anne], it could only lie in a right of literary property at common law’,

6

Rethinking copyright

copyright as a natural authorial property,19 albeit one that has since been statutorily dispensed with.20 My point in drawing attention to this mutually reinforcing historical and theoretical framework is not to begin to pick it apart (not yet anyway) but simply to illustrate that Lord Bingham need not travel far to find support for his ‘very clear principle’ – it is there to be found, in one shape or form, in almost all of the standard literature of the day.21 The point of this work, however, is to introduce the reader to a historical treatment of the development of copyright, as well as to some alternate theoretical approaches to copyright, that he or she may not otherwise come across within that literature. In terms of history, this book very much picks up where On the Origin of the Right to Copy left off. As mentioned above, the first chapter of this book reprises the central thesis of that earlier work; it exposes as ‘myth’ the orthodox history of the development of copyright law in eighteenth-century Britain – what I will refer to as the myth of Donaldson and the cult of Millar. Chapters two and three take up that story in the sense that they explore the history of the history of copyright; that is, they concern the manner in which the history of the development of copyright in the eighteenth century was subsequently recorded and reported throughout the nineteenth century, into the and that ‘to the extent that Parliament has entered the field, copyright under the Statute of Anne 1710 was not to be supplemented by more embracing common law rights’; or Garnett et al. who comment that ‘thus the effect of the Statute of Anne was to extinguish the common law copyright in published works, while leaving the common law copyright in unpublished works unaffected’. Torremans, P. (2005), Holyoak & Torremans: Intellectual Property Law, 4th edn, Oxford: Oxford University Press, p. 9; Bainbridge, supra n. 13, p. 31; Cornish, W. and Llewelyn, D. (2003), Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 5th edn, London: Sweet & Maxwell, p. 12, p. 347; Garnett et al., supra n. 10, p. 35. 19 It is difficult (impossible perhaps) to concede the existence of copyright at common law, albeit as a point of historical interest, without similarly lending credence to some form of natural rights thesis that would otherwise underpin that common law copyright. In many respects, these two historical and theoretical strands, within the context of British copyright law, are inescapably bound to one another. 20 Traditionally the Statute of Anne 1709 is considered to have abolished the common law right in published works, whereas the common law right in unpublished works was abolished by the Copyright Act 1911, 1 & 2 Geo. 5, c. 46. 21 Interestingly, Colston and Middleton, in their commentary on the development of copyright, do make reference (albeit in a footnote) to the argument that in Donaldson ‘the Court did not recognise any common law copy-right at all, even for unpublished works, and that instead the case recognises the underlying social interest in copyright works rather than the commercial interests of authors’, which argument they continue ‘does call into question the principle of protecting authors relied on by Lord Bingham in Designers Guild v. Russell Williams (Textiles) Ltd (2001)’; Colston, C. and Middleton, K. (2005), Modern Intellectual Property Law, 2nd edn, London: Cavendish Publishing, p. 250, n. 6.

Introduction

7

early twentieth, and beyond. Through these chapters we trace the rise and fall and rise again of the conceit of common law copyright, the construct that is central to the orthodox history of the origins of copyright itself (within the UK at least). Within that trajectory we also explore the way in which one particularly significant decision of the House of Lords (perhaps the most important critique upon the concept of copyright at common law within nineteenth-century Anglo-American jurisprudence) was to become subsequently obscured, as well as the contribution which the late nineteenthcentury treatise writers made to that process. To this history of the history of copyright, chapters four and five add two theoretical approaches to copyright which (as with the non-orthodox history of copyright, as well as the history of that history) are not otherwise to be found in the mainstream contemporary texts upon copyright and intellectual property. As noted above, the theoretical framework within which these standard texts situate copyright tends to be one of a cursory romp through the various civil and common law justifications that can be called upon to underwrite the copyright regime. By contrast, chapter four introduces the reader to the institution of copyright first and foremost through the prism of the public domain. The point is to articulate some basic conceptual distinctions between the two phenomena, to explore the significance of the relationship between the two, and to draw upon the concept of the public domain to better understand the very nature of copyright, including both its limits and its limitations. Thereafter, having approached copyright in terms of that which it is not, chapter five considers what copyright is. Here, the inquiry is not as to why we have (or tolerate) copyright, but rather to explore, albeit briefly, how best to locate copyright within the parameters of traditional property discourse, as well as reflecting upon the implications of so doing. Moreover, underpinning these various historical and theoretical strands (which, cumulatively, do aspire to unsettle Lord Bingham’s foundational premise) can be found a simple recurring theme – the almost too obvious observation that, in all of this, language matters. That language matters naturally can be taken to mean a multitude of things.22 In the present context it concerns the place of both myth-making and 22 For some recent comments upon the role of language and rhetoric within copyright discourse see for example: Sterk, supra n. 15; Boyle, J. (1996), Shamans, Software, & Spleens: Law and the Construction of the Information Society, Cambridge, US and London, UK: Harvard University Press; Lemley, M.A. (1997), ‘Romantic Authorship and the Rhetoric of Property’, Texas Law Review, p. 873; Ryan. M. (1998–99), ‘Fair Use and Academic Expression: Rhetoric, Reality, and Restriction on Academic Freedom’, Cornell Journal of Law and Public Policy, p. 541; Benkler, Y. (1999), ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure

8

Rethinking copyright

rhetoric in contemporary copyright discourse. It concerns the particular terminologies that writers upon copyright employ (sometimes consciously, but often not), which terminology exhorts a peculiar rhetorical force in framing the way in which we think about copyright. One particularly evocative example is the language of copyright as intellectual property right, and of intellectual property right as human right, a powerful rhetoric, with little historical or theoretical credibility, but which nonetheless threatens to dominate copyright discourse and drive contemporary copyright policy. In this regard, if nothing else, this book encourages the reader to hold up to scrutiny the very language with which we articulate and describe copyright. As we do so, so too should we begin to more fully explore the manner in which those who write about copyright can and do engage in their own myth-making as to what copyright is and what copyright should be. Naturally, not all texts have equal influence within the field. There exist those legal treatises which lay claim to greater weight, respect and authority than others (some of which have been referred to within the footnotes of this very introduction), whether by reason of the talent and ability of their authors, their scholarly breadth and depth, their comprehensive nature, or simply their age. Indeed we can all think of one or two texts that we turn to again and again for an ‘authoritative’ or ‘objective’ commentary upon some aspect of copyright law. And yet those texts (as is the case with this text) are polemical. They do more than record, organise and comment upon the law of copyright; they seek to determine the conceptual parameters within which copyright is to be understood. This text then is about both the history and theory of copyright, but also about rhetoric and the constitutive power of legal writing.

Although I had begun to write this book by the time Stokes’ review of On the Origin of the Right to Copy appeared in early 2005, its origins lay in the summer of the previous year and with three discrete pieces of work with which I was then currently engaged (what have since become chapters two, three, four and five). The synergies between the various pieces were not immediately apparent to me, but rather revealed themselves as the summer progressed and as my research and thinking about each developed. As a result, however, this book bears the scars of its unplanned and uneasy birth. Much has been left unsaid; numerous threads that could otherwise have been taken up have been of the Public Domain’, New York University Law Review, p. 354; Vaver, D. (2000), ‘Intellectual Property: The State of the Art’, Law Quarterly Review, p. 621; Ginsburg, J.C. (2002–03), ‘Essay – How Copyright Got a Bad Name for Itself’, Columbia Journal of Law & The Arts, p. 61; Koenigsberg, F. (2004), ‘Humpty-Dumpty in Copyrightland’, Journal of the Copyright Society of the USA, p. 677.

Introduction

9

left untouched. Much might have been done, for example, in more fully exploring the individual relationships, politics and philosophies of those at the bar, or sitting on the bench, who surface and resurface throughout the tale presented in the second and third chapters – legal luminaries such as Campbell, Pollock and Brougham; or in considering the relevance (or not) of the anti-monopoly movement that briefly flourished within Europe in the mid to late-nineteenth century within this history of the history of copyright; or in engaging in a more robust review and analysis of the theoretical literature on property in general, and on intellectual property in particular; and so on. At the end of the day, the gaps and the flaws, the borrowings and the intellectual leaps of faith are there for all to see. However, they are hopefully not entirely fatal to the integrity and value of the work. Ultimately the goal is to do little more than make a claim for a greater awareness of, and greater attention to, the insights which alternate historical and theoretical treatments of the subject might bring to bear upon what we understand by copyright. In that sense this book represents no more than a springboard for my own continued research, as well as a challenge to others, whether teacher, academic, practitioner or judge.23 It seeks to provoke, to muddy the waters. If it achieves some success in that regard, albeit tentatively, then that is sufficient for now. As the Manic Street Preachers would have it: ‘this is my truth, show me yours’.

23 Jon O. Newman, judge on the US Court of Appeals for the Second Circuit, recently commented upon the extent to which ‘the scholarly debate in intellectual property today is essentially legislative and policy-oriented, and has so little to do with the business of the courts’; Newman, J.O. (2001), ‘Academia and the Bench: Toward a more productive dialogue’, in Dreyfuss, R., Zimmerman, D.L. and First, H. (eds), Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society, Oxford: Oxford University Press, p. 422. This book is very much to do with the manner in which the judiciary approach the task of thinking about allegations of copyright infringement.

‘[H]istorians must and ought to be exact, truthful, and absolutely free of passions, for neither interest, fear, rancor, nor affection should make them deviate from the path of the truth, whose mother is history, the rival of time, repository of great deeds, witness to the past, example and adviser to the present, and forewarning to the future.’ Miguel De Cervantes, Don Quixote

‘History is fucking.’ Alan Bennett, The History Boys

1.

History I: 1710–1774

The passing of the Statute of Anne in April 1710 marked a historic moment in the development of copyright. As the world’s first copyright statute it provided a legal protection of 14 years for works published after the commencement of the Act,1 as well as a 21-year protection for any works already in print.2 Compared with the 15 years prior to the Act, in which there had been no legislative protection available to the book trade,3 the statute ushered in a period of relative security for the London booksellers.4 The Act, however, was not entirely the legislative panacea which the booksellers had sought. While it did provide a property in books to bring stability to an insecure book trade, at the same time it introduced measures to try to ensure that no monopolistic abuses could be brought to bear upon that trade.5 More generally however, the legislation had a much broader social focus and remit, one that concerned the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the Statute of Anne was then, and remains, a social quid pro quo. To encourage ‘learned Men to compose and write useful Books’ the State would provide a guaranteed, if 1 An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned 1709, 8 Anne, c. 19, s. 1 (Statute of Anne); if the author of the work in question was still alive 14 years after the first publication of his work, then he was entitled to the benefit of an additional 14-year period, ibid., s. 11. The Act was passed in April 1710 but, as was the convention at the time, was considered to have effect as if it had been passed at the start of the regnal year, that is in September 1709. 2 Ibid., s. 1. 3 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. For a recent commentary on the movement of the law prior to the Statute of Anne see Loewenstein, J. (2002), The Author’s Due: Printing and the Prehistory of Copyright, London: University of Chicago Press. 4 For various accounts of the development of the law at this time see: Feather, J. (1994), Publishing, Piracy and Politics: An Historical Study of Copyright in Britain, London: Mansell; Patterson, L.R. (1968), Copyright in Historical Perspective, Nashville: Vanderbilt University Press; Ransom, H. (1956), The First Copyright Statute, Austin: University of Texas. 5 See for example Patterson who reads the Act as a ‘trade-regulation statute directed to the problem of monopoly in various forms’; Patterson, supra n. 4, p. 150.

13

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Rethinking copyright

finite, right to print and reprint those works – an entirely pragmatic bargain involving the author, the bookseller and the public. When the statutory periods of protection provided by the Act began to expire in 1731, those London booksellers who dominated the trade adopted a number of strategies by which to further safeguard their business. They began to seek injunctions from the Court of Chancery for works by authors that fell outside the periods of statutory protection,6 while at the same time lobbying Parliament to extend the periods of protection provided by the legislation.7 Eventually, with the case of Midwinter v. Hamilton (1743–48),8 they turned to the courts of common law, signalling the beginning of a 30-year period, often referred to as the ‘battle of the booksellers’, in which the London booksellers locked horns with a newly emerging Scottish book trade over the right to reprint works falling outside the protection of the 1709 Act. The Scottish booksellers argued that there existed no copyright in an author’s work at common law. By contrast, the southern monopolists proclaimed that the Statute of Anne did not create rights de novo, but rather served to supplement and support a pre-existing common law copyright. During this period both the arguments for and against the existence of the common law right were developed through a number of notable cases, including Millar v. Kincaid (1749–51)9 and Tonson v. Collins (1761, 1762),10

6 See for example Eyre v. Walker (1735) 1 Black W 331, Motte v. Faulkner (1735) 1 Black W 331, Walthoe v. Walker (1737) 1 Black W 331 and Tonson v. Walker (1739) 1 Black W 331. 7 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), Bodleian Library, MS Carte 114 391–96; 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), British Library, BS 68/16 (1). 8 There exist a number of documents relating to this action available in the Bodleian Library, the British Library, 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, July 29 1746; and, Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, 21 December 1746. See also Parks, S. (ed.) (1974), The Literary Property Debate: Seven Tracts, 1747–1773, New York, US and London, UK: Garland Publishing. 9 The Case of the Appellants, 8 February 1751, BM 18th century reel 4065/03; The Case of the Respondents, 11 February 1751, BM 18th century reel 4065/04. 10 Tonson v. Collins (1761) 1 Black W 301; Tonson v. Collins (1762) 1 Black W 329.

History I: 1710–1774

15

and culminating in the two seminal decisions of Millar v. Taylor (1768) (Millar (1768))11 and Donaldson v. Becket (1774) (Donaldson).12

In November 1765 counsel for the bookseller Andrew Millar appeared before the Court of Chancery alleging that Robert Taylor, a printer from Berwick, had ‘vended and sold’ copies of his copyright work The Seasons by the poet James Thomson. Taylor responded that, as Thomson had died in 1748, the work was no longer within the copyright term provided by the 1709 Act. Sewell MR ordered that ‘a case be made for the opinion of the judges of the Court of King’s Bench’ as to whether ‘the plaintiff had at the time of filing his bill in this Court a property in the copies mentioned’,13 which referral gave rise to Millar v. Taylor (1768). Delivering the historic decision that copyright did exist at common law, Mansfield CJ set out that ‘it is agreeable to the Principles of Right and Wrong … and therefore to the Common Law, to protect the Copy … after the Author has published’. Asking himself the rhetorical why this should be so, he observed simply ‘[b]ecause it is just, that an Author should reap the pecuniary Profits of his own Ingenuity and Labour’. Moreover, for Mansfield CJ, this turned ‘upon Principles before and independent’ of the Statute of Anne.14 As a result, the new Lord Chancellor Apsley, in July 1770, ordered Taylor to account for all the copies of The Seasons that he had sold and granted a perpetual injunction to prevent the subsequent reproduction of the work. One year later Thomas Becket filed a bill in Chancery against the Scottish bookseller Alexander Donaldson praying for an injunction to prevent him from printing the same work, The Seasons,15 upon submission of which an 11 Millar v. Taylor (1768) 4 Burr 2303. The judgment of the court was handed down in April 1769, however 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. 12 Donaldson v. Becket (1774) 4 Burr 2408. 13 Public Records Office, C 33 426/68. 14 Millar (1768) 2398. The decision in Millar, however, was not unanimous; indeed this was the first occasion on which there was disagreement amongst the judges on the King’s Bench upon any given issue. Of the other judges who spoke to the issue, Willes and Aston JJ were in agreement with Mansfield CJ, while Yates J provided the dissenting opinion. Yates J found it impossible to accept that a right could accrue to an author in perpetuity and considered it essential to keep in mind the consequences which ‘the publick [sic] will feel, if this claim should be established’. He concluded: ‘[I]t is equally my duty, not only as a judge, but as a member of society, and even as a friend to the cause of learning, to support the limitations of the [Statute of Anne]’; ibid., p. 2395. 15 Following Millar’s death, Becket and others had purchased his rights in Thomson’s work.

16

Rethinking copyright

interlocutory injunction was granted. In 1772 the case was heard before Lord Chancellor Apsley who considered himself bound by the decision of the court in Millar (1768). As a result, he decreed that the injunction formerly granted be made perpetual.16 Donaldson appealed and in January 1774 his petition was read before the House of Lords. As was the custom, whenever the House was faced with a particularly complex or difficult legal issue the twelve common law judges were ordered to attend and to proffer advice for the consideration of the peers. Once counsels’ arguments had been delivered, Lord Chancellor Apsley put three questions to the judges for the consideration of the House, to which Lord Camden added a further two. The five questions were as follows: 1.

Whether, at common law, an author of any book or literary composition, had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same, without his consent? 2. If the author had such right originally, did the law take it away upon his printing and publishing such book or literary composition, and might any person afterward reprint and sell, for his own benefit, such book or literary composition, against the will of the author? 3. If such action would have lain at common law, is it taken away by the Statute of 8th Anne: and is an author, by the said statute, precluded from every remedy except on the foundation of the said statute, and on the terms and conditions prescribed thereby? 4. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law? 5. Whether this right is any way impeached, restrained, or taken away, by the Statute 8th Anne? While both sets of questions essentially amounted to the same thing, there does exist a fundamental difference between them, identified by Patterson, who notes that ‘analytically, the first three questions were directed to the rights of the author, the latter two to the rights of the booksellers’.17 Lord Camden, it would seem, was wary of the ease with which a common law copyright might be confirmed under the simple rubric of an author’s right. Carefully stressing the place of an author’s ‘assigns’ and the perpetual nature of the right under discussion, his two questions covered the same ground as the Lord Chancellor’s, but in a way that sought to direct the attention of the House of Lords from the author to the bookseller. 16 17

See Donaldson v. Becket (1774) 2 Bro PC 129. Patterson, supra n. 4, p. 176.

History I: 1710–1774

17

Eleven of the twelve judges gave their opinions upon these five questions (Lord Mansfield abstained on account of having already given his opinion on the matter in Millar (1768)).18 The traditional interpretation of the judges’ votes details that a large majority considered that there did exist a perpetual common law copyright (10 to 1),19 while a smaller majority believed it had been impeached as a result of the passing of the Statute of Anne (6 to 5). However, the traditional record of the vote on the all-important third and fifth questions is wrong. In fact a majority of the judges (6 to 5) did not consider the common law right to be compromised by the legislation. The crucial opinion in this regard was that of Nares J. While the majority of reports of the case suggest that Nares J decided that the common law right, after publication, was removed by the Act, it is clear that he did not actually hold this opinion;20 rather he considered that the legislation simply operated to supplement the copyright an author had at common law.21 However, his 18 There are six sources of information about the votes and the decision of the Lords: there are two records of Donaldson (1774) in the traditional law reports: 4 Burr 2408, and 2 Bro PC 129; two further accounts can be found in the Journal of the House of Lords (1774) vol. 34, 12–32, as well as Cobbett’s Parliamentary History from the Norman Conquest, in 1066, to the year 1803 (44 volumes), 17, London: Hansard, pp. 953–1003; finally there were two contemporary pamphlets printed at the time of the decision, The Pleadings of the Counsel before the House of Lords in the great Cause concerning Literary Property (1774) (Pleadings (1774)) and an account to which Notes and Observations and References by a Gentleman of the Inner Temple were added, both of which are reprinted in Parks, S. (ed.) (1975), The Literary Property Debate: Six Tracts, 1764–1774, New York, US and London, UK: Garland Publishing. There are, as well, various contemporary newspaper accounts of the decision. 19 This is sometimes represented as an 8 to 3 vote; see for example Whicher, J. (1961–62), ‘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’, Copyright Society of the USA, p. 128. 20 See: Abrams, H. (1983), ‘The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’, Wayne Law Review, p. 1119; Rose, M. (1993), Authors and Owners: The Invention of Copyright, London: Harvard University Press; Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain, 1695–1775, Oxford: Hart Publishing. The judges in the majority on this point were: Nares, Ashurst, Blackstone, Willes, Aston JJ and Smythe CB; those in the minority were: Eyre, Gould JJ, Perrott, Adams BB and De Grey CJ. 21 Cobbett’s report notes that ‘[Nares] stated to the House why he thought a common law right in literary property did exist, and why the statute of Anne did not take it away’ and yet records a vote of ‘yes’ for the third question; Cobbett, supra n. 18, p. 975. The Gentleman’s report cites Nares J as commenting that ‘as it is admitted on all Hands that an author has a beneficial Interest in his own manuscript before Publication, it is a most extraordinary circumstance, that he shall lose that beneficial interest, the very moment he attempts to exercise it. The Statute my Lords, does not take away the common law remedy, although it gives an additional one’; supra n. 18,

18

Rethinking copyright

opinion on this point was at the time inaccurately recorded in the House and then subsequently misreported. In addition to this, that ten of the judges considered that copyright subsisted at common law is not entirely accurate either; in fact four judges expressly rejected any such notion: Eyre J, Perrott, Adams BB, and De Grey CJ.22 The reason for this particular confusion lies in the fact that the Lord Chancellor’s first question as to whether an author had the ‘right of first printing and publishing’ his work at common law can be read in two different ways. The first presupposes the existence of copyright, as an intangible property right, at common law – that is, a right to publish and re-publish one’s work to the exclusion of all others. The second, however, relates to the existence of a right at common law which flows from the ownership of the physical object, the manuscript – in this case, a right of first publication (a right to divulge) and nothing more. In failing to pay attention to this distinction, various writers have misunderstood and misreported the way in which three of the judges, Perrott, Adams BB and De Grey CJ, approached this issue.23 The confusion between and conflation of these two distinct concepts, of a publication right p. 35. In addition to the speeches of the judges themselves, Rose also provides evidence of contemporary newspaper reports which indicate that Nares in fact voted ‘no’ to the crucial third question; Rose, supra n. 20, pp. 154–58. 22 In general see Deazley, supra n. 20, Chapter 8. 23 Perrott and Adams BB are often represented as having expressed that opinion that there existed a ‘qualified common law copyright’; this however is not the case. What they did recognise was that an author had certain rights over his physical manuscript which incorporated the right to decide whether to publish the manuscript or not; in Perrott B’s words: ‘An author certainly had a right to his manuscript: he might line his trunk with it, or he might print it. After publication any man might do the same ... if a manuscript was surreptitiously obtained, an action at common law would certainly lie for the corporeal part of it, the paper. So if a friend to whom it is lent, or a person who finds it, multiplies copies, having surrendered the original manuscript, he hath surrendered all that the author has any common law right to claim’; Cobbett, supra n. 18, pp. 981–82. As for Lord DeGrey, he acknowledged that ‘[w]ith respect to the first question, there can be no doubt that an author has the sole right to dispose of his manuscript as he thinks proper; it is his property, and till he parts with it, he can maintain an action of trover, trespass, or upon the case of any man who shall convert that property to his own use’, but continued that ‘the right now claimed at the bar, is not a title to the manuscript, but to something after the owner has parted with, or published his manuscript; to some interest in right of authorship, to more than the materials or manuscript on which his thoughts are displayed, which is termed Literary Property ... which right is the subject of the second question proposed to us.’; ibid., p. 988. That is, in answering this first question DeGrey CJ was not addressing the issue as to whether or not copyright exists at common law, but was simply asserting that everyone has certain rights which flow from the fact of ownership of the physical manuscript; not a case of a common law copyright, but rather common law rights over your copy. Lord DeGrey, like Perrott, Adams BB, and Eyre J, comprehensively rejected any idea of copyright at common law.

History I: 1710–1774

19

and the right to first publish, features heavily in the subsequent copyright commentary of the nineteenth and early twentieth century as we shall later see. However, of importance for the moment is that in the House of Lords a majority of the judges (seven) had acknowledged the existence of a common law copyright and that a majority of those judges (six) considered this common law right pre-eminent over the Statute of Anne. The House of Lords, however, was not bound to follow the opinion of the majority of the judges and although in practice it almost always chose to do so, this case proved to be one of the exceptions to the rule. The day after the judges had finished delivering their opinions to the House, five further peers spoke to the issue. Of these five only Lord Lyttleton spoke in favour of the common law right. The others, the Bishop of Carlisle, and Lords Howard, Apsley and Camden, all spoke against it. Lord Camden proved the most strident in his rejection of the common law right. Dismissing the ‘whole breadroll of citations and precedents’ that had been relied upon in support of the common law right as a ‘heterogeneous heap of rubbish, which is only calculated to confound your lordships, and mislead the argument’, he expounded upon two pertinent themes. The first turned on the sovereignty of Parliament, and the relationship between the legislature, the common law and the judiciary. He reminded the judiciary that ‘[t]heir business is to tell the suitor how the law stands, not how it ought to be’; ‘otherwise’ he continued ‘each judge would have a distinct tribunal in his own breast’ and ‘[c]aprice, self-interest, [and] vanity would by turns hold the scale of justice’ while ‘the law of property’ would be ‘indeed most vague and arbitrary’.24 His second concern was that of the bookseller. With his additional two questions he had sought to shift the focus of the House away from the rights of the author, to the consequences of such rights existing in a bookseller (the author’s assign) in perpetuity. He reminded the peers that ‘the common law right now claimed at your bar is the right of a private man to print his works for ever, independent of … all mankind’.25 Should the Lords vote in favour of the perpetual right, he warned, ‘[a]ll our learning will be locked up in the hands of the Tonsons and the Lintots of the age’. Moreover the booksellers, these ‘engrossers’, would then set upon books whatever price ‘their avarice chuses [sic] to demand, till the public became as much their slaves, as their own hackney compilers are’. The notion of a right at common law was to Lord Camden ‘as odious and selfish as any other, it deserves as much reprobation, and will become as intolerable’. ‘Knowledge and science’ he declared ‘are not things to be bound in such cobweb chains’.26 24 25 26

Cobbett, supra n. 18, pp. 998–99. Ibid., p. 994. Supra n. 18, pp. 999–1001.

20

Rethinking copyright

And so, 16 opinions had been delivered for the consideration of the peers, the last five of which had been expounded upon the day of the vote itself. Concerning Lord Camden’s fourth question as to the existence of copyright at common law, eight of those opinions endorsed the existence of such a right (seven judges and one peer), 27 while eight had rejected the notion (four judges and four peers).28 However, while five questions had been put to the judges, only one question was put to the peers: should the perpetual injunction previously granted by Lord Chancellor Apsley be overturned? This question approximated most closely to a choice between a perpetual common law right and the time-limited Statute of Anne. The Lords, in finding for the defendant, opted for the latter. And yet, the nature and substance of this single vote failed to address the issue as to whether the Act had simply created a new right of printing books, or whether it had abrogated a pre-existing common law copyright; the decision to reverse the Lord Chancellor’s decree said nothing of this. However, while the actual vote of the peers did not speak directly to this issue, Lord Chancellor Apsley had addressed it and, as Abrams observes, while ‘the judicial statements were only advisory’, ‘the Lords’ statements were the law of the case’.29 This was the Lord Chancellor who ‘entered into a minute discussion of the several citations and precedents that had been relied upon at the Bar’, who ‘proved that they were foreign to any constructions which could support the Respondents’, who ‘very fully stated the several cases of injunctions in the Court of Chancery’, and who ‘gave an historical detail of all the proceedings in both Houses upon the several stages’ of the Statute of Anne ‘all tending to shew [sic] the sense of the legislature, at the time of passing it, to be against the right’.30 That is, Lord Chancellor Apsley, like Lord Camden, explicitly denied the existence of any common law right ab initio, and it was this position that the majority of the peers embraced. Moreover, that the House of Lords rejected the existence of the common law right, contrary to the sentiments of the majority of the common law judges, is apparent in the language and success (or lack thereof) of two petitions for legislation that followed in the wake of the decision, the first coming from the London booksellers, the second, from the universities of Oxford and Cambridge. Six days after the decision the booksellers petitioned the Commons complaining that they ‘had constantly apprehended, that the

27 That is: Nares, Ashurst, Blackstone, Willes, Aston, Gould JJ, Smythe CB and Lord Lyttleton. 28 That is: Eyre J, Perrott and Adams BB, De Grey CJ, the Bishop of Carlisle, and Lords Howard, Apsley and Camden. 29 Abrams, supra n. 20, p. 1169. 30 Pleadings, supra n. 18, p. 35.

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[Statute of Anne] did not interfere with any copy-right that might be invested in [them] by the common law’. ‘[B]y a late solemn decision of the House of Peers’ they continued ‘such common law right of authors and their assigns hath been declared to have no existence, whereby your petitioners will be very great sufferers thro’ their involuntary misapprehension of the law’.31 The petition was referred to a committee for examination and, on 24 March 1774, leave was given in the Commons to bring in a Bill for the Relief of Booksellers.32 Following this decision, a number of other petitions were presented before the House. The booksellers of Edinburgh claimed that ‘the special indulgance [sic] prayed for by the London booksellers’ would be highly injurious to everyone concerned in ‘Bookselling, the Paper manufacture, the Art of printing, and other Branches therewith connected’. Acknowledging that the Scottish book trade was primarily concerned with ‘reprinting English books’ when the terms of the 1709 Act permitted it, they declared that extending the monopoly asked for by the London booksellers would ‘be the ruin of many families in Scotland’ as well as being ‘prejudicial to the community at large’.33 Similar sentiments were expressed by other booksellers from London, Westminster, Glasgow and York, each decrying the deleterious consequences of the proposed Bill.34 Not surprisingly, Alexander Donaldson himself did not remain silent. He delivered a petition referring to the decision he had secured before the Lords and expressed his alarm at seeing it ‘ready to be snatched out of his hands by the very people who have been hitherto guilty of oppression’. Should the Bill pass into law it would be ‘to the great detriment of the publick [sic], to the injury of letters, and to the utter ruin of inferior booksellers both in town and country’. Rejecting the ‘pretence of hardship’ claimed by the London booksellers as ‘without foundation’, he prayed to the House ‘that the statute of Queen Anne, which was expressly made for the encouragement of learning, may not now be altered or suspended, for the encouragement of the London booksellers only’.35 These subsequent petitions fell on deaf ears. In March 1774 a Bill was presented to and passed through the Commons, the Preamble to which, like the booksellers’ original petition, set out that it had ‘lately been adjudged in the House of Lords that no such copy right in authors or their assigns doth exist at common law’.36 Without drawing any distinction between works in which

31 32 33 34 35 36

Journal of the House of Commons, vol. 34, p. 513 (emphasis added). Ibid., pp. 588–90. Supra n. 31, pp. 665–66. Supra n. 31, pp. 668 and 698. Supra n. 31, p. 679. (Emphasis added).

22

Rethinking copyright

copyright had expired, or works in which copyright under the 1709 Act currently subsisted, this Bill simply provided that any author (or his assign) who had already printed and published his work, should, from 4 June 1774, ‘have the sole and exclusive liberty of printing such book … for the term of fourteen years … and no longer’.37 The Bill however, was stalled in the upper chamber until the end of the parliamentary session; once again, the House of Lords had been the undoing of the London booksellers. As noted above, the London monopolists were not the only interested parties concerned by the decision in Donaldson. Carter writes that ‘[a]s soon as the House of Lords decided in 1774 that no subject had a perpetual copyright in a published work … the Universities took steps to secure exceptional treatment’.38 In April 1775 leave was given, again in the Commons, for Lord North (then Chancellor of Oxford University) to prepare and bring in a Bill for enabling the Two Universities to hold in Perpetuity the Copy Right in books, for the advancement of useful Learning, and other purposes of Education, within the said Universities.39 North, although a peer, presented the Bill, steered it through the Commons, and brought it before the Lords in less than 3 weeks.40 After only eight days before the Lords, the Universities Act 1775 received the Royal Assent,41 granting the universities a perpetual right to reprint ‘all such books as shall at any time heretofore have been … bequeathed or otherwise given [to them] by the Author’ in order that the selling of such works would contribute to the generation of revenues ‘for the Advancement of Learning, and other beneficial Purposes of Education within the said Universities and Colleges’.42 In little over one month, the universities had secured what the London booksellers had unsuccessfully pursued for over 30 years. That Parliament should sanction the granting of a statutory perpetual copyright in certain books was not, in itself, considered problematic. What mattered, to the House of Lords at least, was who had control over these perpetual privileges and why. When those in control were the universities, and when the revenues they generated were to be directed towards the advancement of those educational establishments (in theory at least), then both parliamentary chambers could agree that a perpetual statutory copyright, framed in 37

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. 38 Carter, H. (1975), A History of the Oxford University Press, to the Year 1780, 1, Oxford: Oxford University Press, p. 367. 39 Journal of the House of Commons, 35, p. 299. 40 Ibid., pp. 340, 351, 370, 373. 41 Universities Act 1775, 15 Geo. 3, c. 53. 42 Preamble, s. 1.

History I: 1710–1774

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such terms, was not such a controversial prospect. Indeed, the Act specifically provided that should either university sell any of these perpetual copyrights on, then all privileges granted therein were to be revoked.43 In this sense, the Statute of Anne and the Universities Act stand as twin pillars: both concerned copyright in printed books, and both were secured on the strength of the social impact that each would have; both were fundamentally concerned with the advancement of education and learning within Great Britain; and both supported the continued production of socially useful books. With the Statute of Anne a necessary, if finite, bargain had been struck with the author and the bookseller; with the Universities Act a useful, non-finite, source of revenue was provided for the support of two of the country’s most prestigious seats of learning. Two contrasting measures directed toward the same end. The failure of the London booksellers to secure further legislation in 1774, the success of the university lobby in 1775 and the language and tone of the legislation that was proffered on behalf of the booksellers all reinforce the fact that, regardless of the wealth of argument and counter-argument which had been expounded as to the nature of copyright in the 30 years leading up to the House of Lords’ decision, Donaldson turned primarily upon the same basic impulses that underscored both the Statute of Anne and the Universities Act. In Donaldson, the House of Lords understood the copyright regime, first and foremost, as addressing the broader interests of society. A purely statutory phenomenon, copyright was fundamentally concerned with the reading public, with the encouragement and spread of education, and with the continued production of useful books. In deciding the case as they did, these eighteenthcentury parliamentarians did not primarily seek to advance the rights of the individual author. Rather, explicitly denying the existence of a common law copyright, they acted in the furtherance of much broader social goals and principles. The pre-eminence of the common good as the organising principle upon which to found a statutory system of copyright regulation was championed, while the notion of an authorial copyright at common law had been declared not to exist. That the House of Lords in Donaldson rejected the existence of any common law right is not, however, how that decision is popularly portrayed or understood. In the most recent edition of Copinger and Skone James on Copyright, Garnett, Davies and Harbottle write that in Millar ‘[t]he Court held that there was a common law right of an author to his copy stemming from the act of creation and that that right was not taken away by the Statute of Anne’.44 They continue: 43

Section 3. Garnett, K., Davies, G. and Harbottle, G. (eds) (2005), Copinger and Skone James on Copyright, 15th edn, London: Sweet & Maxwell, para. 2–17. 44

24

Rethinking copyright The decision was finally overturned, however, by the House of Lords in Donaldson v. Beckett in 1774, a case which decided that copyright was the deliberate creation of the Statute of Anne and thereafter treated as statutory property. Thus, the effect of the Statute of Anne was to extinguish the common law copyright in published works, while leaving the common law copyright in unpublished works unaffected.45

Fundamental to this and other similar readings is the understanding that authors had a pre-existing copyright at common law over their work and that, with the 1709 Act, in limiting these natural rights Parliament sought to strike a more appropriate balance between the interests of the author and the wider social good, in that to allow the author’s rights to run in perpetuity would hamper the free circulation of literature, knowledge and ideas. Such is the common perception of the balancing act that is copyright regulation – and it is a notion that has informed most of what has followed in the wake of Donaldson. However, because of the nature of the single vote in the appeals process to the House of Lords, because of the lack of attention that the speeches of the individual lords themselves have attracted, because of the emphasis that has been placed upon the eleven judicial opinions delivered to the House, and because of the misreporting of key aspects of those opinions, Donaldson provided a conclusion to the eighteenth-century debate concerning the existence of copyright at common law that has mislead judges, practitioners and academics alike for over 200 years. When the peers voted in favour of reversing the earlier decree, they were voting against a perpetual right, but, regardless of their actual intention, their vote has been taken to correspond with the (mis)reported opinion of the majority of the speaking judges. It quickly becomes clear why the opinions of the 11 speaking judges bear so much importance. It is not because they were decisive of the issue in Donaldson, but because they were later believed to represent an accurate summary of the collective opinion of the House itself. Ultimately, what has been taken from Donaldson is that there did exist a perpetual common law copyright, which right was not lost upon publication of an author’s work, but which was, on publication, prescribed by the Statute of Anne. With the reversal of the Lord Chancellor’s decree, the myth of a perpetual common law copyright in the author’s unpublished manuscript was created, albeit by default. It is the story of the process by which this myth of a copyright at common law takes root throughout the nineteenth century that provides the focus for the next two chapters, a process which is all the more remarkable given that in Jeffreys v. Boosey (1854)46 the House of Lords once again rejected the notion 45 46

Ibid. Jeffreys v. Boosey (1854) 4 HLC 815.

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of a natural authorial copyright and, as was the case with Donaldson, once again the commentary of the law lords would become subsequently eclipsed by the opinions of the majority of the common law judges speaking to the point.

2.

History II: 1774–1854

Two years after the House of Lords handed down their seminal decision in Donaldson v. Becket (1774) (Donaldson),1 reversing Millar v. Taylor (1768) (Millar),2 Capel Lofft, a young barrister attached to Lincolns Inns, published his first, and only, collection of cases (which cases were principally decided in the King’s Bench).3 Among the cases contained within Lofft’s volume is Hawkesworth v. Newbery (1774), concerning an abridgement of Dr Hawkesworth’s Voyages by the defendant. The question for Lord Chancellor Apsley was whether Newbery, in producing his abridged text, had infringed the copyright in the original work. Lofft records the decision as follows: The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author’s property whereon to ground an injunction. That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work. That this had been done by Mr. Newbery, whose edition might be read in a fourth part of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That he had consulted Mr. Justice Blackstone whose knowledge and skill in the profession was universally known, and who as an author had done honour to his country. That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr. Newbery’s falls within these reasons and descriptions. Therefore the bill paying an injunction ought to be dismissed.4

There is much of interest in this singular and sparse account: the consensus between two legal luminaries who had earlier adopted fundamentally different positions on the question of the common law right in Donaldson; the implicit 1

Donaldson v. Becket (1774) 4 Burr 2408. Millar v. Taylor (1768) 4 Burr 2303. 3 Lofft, C. (1776), Reports of Cases adjudged in the Court of King’s Bench, 12 Geo. 3–14 Geo. 3, London: Owen. 4 Ibid., pp. 775–76. 2

26

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literary commentary upon the original work in question; the conceptual alignment drawn between the act of plagiarism and the act of copyright infringement, and so on. Much, of course, has already been made of the decision in existing commentaries on the development of nineteenth-century copyright jurisprudence concerning abridged texts.5 In the present context, however, it is worth drawing upon the record of the case for two discrete purposes. In the first place it reminds us of the nature and import of the Lord Chancellor’s reasoning in the Donaldson case – that the House rejected any notion of an authorial copyright existing at common law, and that the principal reason for that decision concerned the promotion of the public interest in the sense of promoting the dissemination of learning and the increased production and circulation of cheap and ‘useful books’. Attitudes as to the existence of the common law right, as we shall see, waxed and waned throughout the nineteenth century, and it is in the exploration of this phenomenon that we come to the second reason for alluding to young Lofft’s collection of cases. Conscious of his youth, and of the fact that he had been called to the Bar just one year before his volume was published, Lofft considered it necessary to justify to his audience both the endeavour itself as well as the veracity of his accounts. In the Preface to his volume, in discussing the nature of reported cases, he drew his readers’ attention to the fact that judicial decisions ‘are but Evidence of law, and not Law’ albeit they are the ‘Highest Evidence’ one might rely upon. Moreover, he proffered, just as judgments were merely evidence of the law, ‘[r]eports are but evidence of judgments’ and, with no little self-deprecation, continued that ‘these reports are far from the best evidence of these judgments’. Nevertheless, Lofft sought to assure his reader that: I have not wilfully misrepresented or neglected any of those judgments. They are all within the memory of almost the whole bar, and of all the judges who delivered them; of whom the public has lost none, having suffered only (and there greatly indeed) in the Exchequer, in which court none of the notes in this book are taken.6

For this and other reasons expounded therein, Lofft concluded his opening gambit by refusing to apologise, either to the public or to the profession, for the nature or indeed the very existence of his work. Rather, he suggested that the very fact of having different and disparate accounts of the same cases, set out by different authors, might function to enable the profession and the public better to understand the law per se:

5 See for example Vaver, D. (1995), ‘Abridgements and Abstracts: Copyright Implications’, European Intellectual Property Review, p. 225. 6 Lofft, supra n. 3, pp. v–vi.

28

Rethinking copyright I must observe this, that in a few years constant attendance I have hardly known a case of any importance, either in law or equity settled upon the authority of a single reporter, however eminent or respectable; but that I have known (and there are many who know it better) numbers of cases, where an obscure point in one reporter, though of no ordinary merit, has been made clear by reference to another, where the true gist of the question has been ascertained, and the true reasons of the judgments, by lights drawn from the concurrence, nay, sometimes, from the opposition of various reporters.7

Multiple accounts of the same decisions can indeed function to elucidate more fully the meaning and significance of a given judicial pronouncement; however they can similarly operate to obscure.8 Lofft was at pains to impress upon his reader that he did not intend to provide his ‘own thoughts and opinions’ but only the ‘thoughts, opinions and judgments of those who … must deserve and are secure of their notice’.9 His work was to be neither more nor less than an abridgement of decided cases.10 The dominance of this particular form of legal literature was subsequently to be supplanted with the rise of the legal treatise throughout the nineteenth century,11 the writers of which did not, nor could not make any similar claim to the type of objective reportage to which Lofft aspired. They were indeed proffering their own thoughts and opinions (as is this author), and it is with the influence of these texts, in particular in the late nineteenth and early twentieth centuries, in setting the parameters as to the manner in which copyright was to be understood, as well as reifying the myth of copyright at common law, that this and the next chapter is primarily concerned – that is, the constitutive power of legal writing. In this sense, as we shall see, those writing legal treatises upon copyright did more than organise, report and critique the law; truly, they wrote the law. Among the numerous reasons that Lofft gave for compiling his collection of King’s Bench decisions one ran as follows: I don’t know that there ever were fewer [reporters] since the beginning of the yearbooks now above four centuries and an half: And I gladly acknowledge [the current 7

Ibid., p. ix. See in general Doupe, M. and Salter, M. (2000), ‘Concealing the Past?: Questioning Textbook Interpretations of the History of Equity and Trusts’, Liverpool Law Review, p. 253, and Doupe, M. and Salter, M. (2000), ‘Approaching the Nature and History of Property Law: The Limits of the Cheshire World View’, King’s College Law Review, p. 49. 9 Lofft, supra n. 3, p. ix. 10 On the history and development of different forms of legal literature see Simpson, A.W.B. (1983), ‘The Legal Treatise and Legal Theory’, in Ives, E.W. and Manchester, A.H. (eds), Law, Litigants and the Legal Profession, London: Royal Historical Society, pp. 11–29. 11 Lofft, supra n. 3, p. ix. 8

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reporters’] merit as remarkable as the smallness of their numbers. But if one bad reporter should be added it would be his own loss and misfortune; if you will his folly – or, if you choose to say – his crime; it can be no prejudice to the good: But if the cases I have to offer shall turn out not so bad … I flatter myself it will be a pleasure to them that their labours have encouraged a young man to labour in his profession.12

It is important to bear in mind that in the years following Donaldson, and throughout the rest of the eighteenth century, relatively few cases concerning copyright came before the courts.13 Moreover, during that same period, even fewer of those cases were reported in legal texts relatively contemporaneously with the judicial decisions themselves.14 Of the few that were, in the present context, the two recorded by Durnford and East are the most significant: Coleman v. Wathen (1793) (Coleman)15 and Beckford v. Hood (1798) (Beckford).16 In both we can trace the beginnings of the recasting of Donaldson and the first emergence of the cult of Millar. In Coleman, the plaintiff took an action against the defendant for staging a production of the play, The Agreeable Surprise, which the plaintiff had purchased from its author, the Irish dramatist John O’Keefe. Kenyon CJ, without even hearing cause on behalf of the defendant, dismissed the claim explaining that the 1709 Act ‘only extends to prohibit the publication of the book itself’ and not its performance.17 Of interest, however, is the account of the argument on the plaintiff’s behalf: Erskine shewed cause, on the ground that this was sufficient evidence for the jury to conclude that the work had been pirated; for it could not be supposed that the performers could by any other means have exhibited so perfect a representation of the work. Besides, if this were held not to be a publication within the statute, all 12

Ibid., pp. vii–viii. Those reported include: Hawkesworth v. Newbery (1774) Lofft 775; Bach v. Longman (1777) 2 Cowp 623; Eyre v. Carnan (1781) 6 Bac Abr, 7th edn, p. 509; Storace v. Longman (1788) 11 East’s 244; Sayre v. Moore (1795) 1 East’s 361; Carnan v. Bowles (1786) 1 Cox 283; De Trusler v. Murray (1789) 1 East’s 363; Brooke v. Milliken (1789) 3 TR 509; Coleman v. Wathen (1793) 5 D&E 245; Brook v. Wenworth (1796) 3 Anst 881; Beckford v. Hood (1798) 7 D&E 620. 14 Sayre v. Moore (1785) and De Trusler v. Murray (1789) were first recorded in East’s Reports (1801). On Sayre v. Moore (1785) see also Oldham, J. (1992), The Mansfield Manuscripts and the growth of English law in the Eighteenth Century, Chapel Hill, US and London, UK: University of North Carolina Press, 770. On the law reports from this era in general, see Veeder, V.V. (1968), ‘The English Reports, 1537–1865’, in Select Essays in Anglo-American Legal History, II, London: Wildy & Sons, pp. 123–54. 15 Coleman v. Wathen (1793) 5 D&E 245. 16 Beckford v. Hood (1798) 7 D&E 620. 17 Coleman, p. 245. 13

30

Rethinking copyright dramatic works might be pirated with impunity; as this was the most valuable mode of profiting by them. And in Millar v. Taylor, a majority of the Judges were of opinion, in the House of Lords, that an author had an exclusive property in his works independently of the stat. of Anne.18

While Erskine did not win the point, the conflation of Millar and Donaldson in the printed report is remarkable indeed, foreshadowing the manner in which the reality of Donaldson would, not once, but twice throughout the course of the nineteenth century, become subsumed within the rhetoric of Millar. This process, nascent in Coleman, was continued in Beckford, which concerned the reproduction of a literary work that fell squarely within the protection of the Statute of Anne. Unfortunately for the plaintiff, he had not registered his work in accordance with the Act,19 and so could not pursue for the remedies provided therein. Instead he sought the common law remedy of damages (by an action on the case) and the question for the King’s Bench was whether such an action could be sustained. In Millar the King’s Bench under Lord Mansfield had decided that an author did have a perpetual right at common law in his literary productions; the decision however was not unanimous, with Yates J dissenting on the point.20 Now the King’s Bench consisted of Lord Kenyon, Ashurst J (who had similarly held in favour of the common law right in Donaldson), Grose and Lawrence JJ. In resolving Beckford, and recasting Donaldson, this court would act with unanimity. In presenting his client’s case, Reader, counsel for Beckford, adopted two beguiling rhetorical strategies. In the first instance, he continuously stressed that the decision in Donaldson concerned the nature of the common law right post-publication only. In the second instance, he pressed two of the earlier dissenting voices as to the existence of the common law right, Yates J and Eyre B,21 into service in support of his client’s position. As to the first, Reader observed: Mr Justice Yates, who in the case of Millar v. Taylor in this Court was alone of opinion that an author had not a right of property at common law in his works when published, was yet decidedly of opinion that by the first clause of the statute of Anne, an exclusive right was vested in the author during the terms therein limited; and that notwithstanding the penalties and confiscation given by the same act the author has all the common law remedies for the enjoyment of that right.22 18

Ibid. An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned 1709, 8 Anne, c. 19, s. 2 (Statute of Anne). 20 See Chapter 1, n. 14. 21 Ibid. See also Chapter 1, n. 22 and accompanying text. 22 Beckford, pp. 623–24. 19

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As to the second he argued that, while Eyre B might have given his opinion against the common law right after publication, he ‘was yet of [the] opinion that there might be a remedy in equity, upon the foundation of the statute independently of the terms and conditions thereby prescribed in respect of the penalties given’.23 Marryat, counsel for the defendant, countered that when a statute was ‘merely confirmatory of a pre-existing right’ then any penalties contained therein might indeed be considered to be simply accumulative to those already existing at common law; this however was not the case for works protected by copyright. In support, Marryat drew a parallel between engravers and authors and suggested that, as was evident from the legislative provisions preventing the reproduction and sale of protected engravings,24 ‘the Legislature thought that no such remedy as this now attempted lay by virtue of the statutes’.25 Kenyon CJ’s opening statement made clear his opinion on the common law right: All arguments in support of the rights of learned men in their works, must ever be heard with great favour by men of liberal minds to whom they are addressed. It was probably on that account that when the great question of literary property was discussed some judges of enlightened understanding went the length of maintaining that the right of publication rested exclusively in the authors and those who claimed under them for all time.26

While he was sure that the Lords in Donaldson were right to confine the right to the time limited within the 1709 Act, Kenyon CJ was equally certain that ‘the common law gives the remedy by action on the case for the violation of it’ within those times.27 Ashurst J, not surprisingly, was of the same mind. Of 23

Ibid., p. 624. Engraving Copyright Act 1735, 8 Geo. 2, c. 13; Engraving Copyright Act 1767, 7 Geo. 3, c. 38. 25 Beckford, p. 625. 26 Ibid., p. 627; for other Lord Kenyon decisions concerning copyright see: De Trusler v. Murray (1789) 1 East’s 363, and Cary v. Longman (1801) 1 East 358. 27 Beckford, p. 627. A number of subsequent writers and judges have taken Kenyon CJ’s observations to indicate that he was ‘against the common law right’ in the sense that he did not consider a copyright to exist at common law; see for example the comments of Parke B and Lord Brougham in Jeffreys v. Boosey (1854) 4 HLC 815 (Jeffreys), and Copinger, W.A. (1870), The Law of Copyright in Works of Literature and Art, London: Stevens & Haynes, p. 17. However, that Kenyon considered the decision in Donaldson was the correct one does not necessarily mean that he considered no common law copyright to exist. Rather, given the overall tenor of his commentary, as well as those of the judges sitting with him, it is suggested that he did consider the common law right to exist, but also thought the House of Lords correct to consider it circumscribed by the Statute of Anne. 24

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Rethinking copyright

the four King’s Bench judges however it was Grose J who specifically addressed Donaldson and its relationship with the issue before the court: I was at first struck with the consideration, that six to five of the judges who delivered their opinions in the House of Lords … were of opinion that the common law right of action was taken away by the statute of Anne; but upon further view, it appears that the amount of their opinions went only to establish that the common law right of action, could not be exercised beyond the time limited by that statute.28

To complete the recasting of Donaldson, Lawrence J, who was in complete agreement with the three previous opinions, provided Lord Mansfield with the last word, relying upon his decision in Tonson v. Collins (1761) (Tonson (1761)) as an authority in point.29 Four years after the decision in Beckford the first treatise exclusively devoted to the law of copyright was published: The Law of Copyright by Joshua Montefiore. In this short work (only 59 pages in length), Montefiore commented that ‘in the opinions of no less than eight of the twelve judges’ in Donaldson, the common law right ‘was allowed and perpetuated by the common law of England; but six held it abridged by the statute of Anne’.30 The process in Beckford whereby the (misreported) opinions of the 11 judges who provided opinions for the House of Lords in Donaldson would come to stand for the collective opinion of the House itself had begun in the legal literature also. It was clearly evident 20 years later, when the issue from Coleman was replayed before the courts in Murray v. Elliston (1822) (Murray (1822)).31 In Murray, the defendant had staged a production at the Theatre Royal, Drury Lane, based upon Byron’s work Marino Faliero, Doge of Venice, the copyright in which Byron had assigned to the plaintiff. James Scarlett, later Lord Abinger, argued the case for the plaintiff upon the ‘right of property’ which his client had in the work, ‘whether that right of property arise from the common law, or from the statutes relative to it’ being immaterial; that is, the plaintiff had a property in his work which may well be damaged as a result of the unauthorised adaptation. Adolphus, for Elliston, grounded the response 28

Beckford, p. 629. Tonson v. Collins (1761) 1 Black W 301. For a commentary on Tonson (1761) see Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright in Eighteenth-Century Britain, 1695–1775, Oxford: Hart Publishing, Chapter 5(2) (On the Origin of the Right to Copy). 30 Montefiore, J. (1802), The Law of Copyright, London, p. 2. Montefiore recorded Beckford in the following way: ‘The right of property in a new work is vested in the author for a certain period by 8 Ann c. 19 and the author has a remedy by action at common law, for violation of such property’; ibid., p. 28. 31 Murray v. Elliston (1822) 5 B&Ald 657. 29

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squarely within Grose J’s reading of Donaldson, that the majority of common law judges had decided that the action at common law was taken away by the Statute of Anne and that ‘the author was precluded from every remedy, except on the statute’; ‘the claim by the plaintiff’ he continued ‘is at variance with this decision’.32 Abbott CJ and the rest of the court held for the defendant: an action could not be maintained for adapting and performing Byron’s work. This orthodoxy of the interplay between the common law and the statute however had not yet been fully entrenched. Ten years after Montefiore’s text was published, the year in which Charles Dickens was born, Beckford and the Statute of Anne were subsequently considered in University of Cambridge v. Bryer (1812) (University of Cambridge), in which the university sought compensation from the defendant for non-delivery of his published work as required under s. 5 of the 1709 Act.33 Henry Peter Brougham, counsel for the defendant, argued that only such works as were registered in accordance with the legislation (s. 2) fell within the library deposit provision (s. 5). ‘It has been said’ Lord Ellenborough observed: [T]hat the statute has three objects; but I cannot subdivide the two first; I think it has only two. The counsel for the plaintiffs contended that there was no right at common law; and perhaps there might not be; but with that we have not particularly anything to do. He has considered the three objects to be, first, the protection of authors, by vesting the right in them; then the fortifying their right by penalties; and, thirdly, the encouragement of literature. But I think it has properly but two, viz. the object of promoting the copyright, and that of the advancement of learning.34

Even if the court were not properly concerned with adjudicating upon the existence of the common law right, how did Ellenborough CJ rationalise Beckford? He did so in the following terms: It was very properly observed in Beckford v. Hood, that unless the proprietor of the book had a right of action independent of that given for the penalties, his remedy might be anticipated, or rather precluded by a common informer;[35] who might by 32

Ibid., p. 659. University of Cambridge v. Bryer (1812) 16 East’s 317. 34 Ibid., pp. 320–21 (emphasis added). 35 This was as a result of s. 1 of the legislation, which set out that should anyone infringe against the copyright subsisting in any work ‘then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste paper of them; and further, that every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this Act; the one moiety thereof to the Queen’s most Excellent majesty, Her Heirs and Successors, and the other Moiety thereof to any person or 33

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Rethinking copyright some species of collusion difficult to detect, have stopped the course of his remedy entirely; and therefore the action was upheld in that case.36

In Ellenborough CJ’s opinion, it was on this basis that an action was maintainable independently of the penalties provided – upon the authority of the ‘substantial provision’ which vested the copyright in an author (that is, s. 1 of the Statute of Anne) rather than one of a pre-existing common law right.37 persons that shall sue for the same’ (emphasis added). That is, the right of complaint against infringement was not restricted to the author or his assign, but to anyone who might sue for the same upon authority of the Act. 36 University of Cambridge, p. 322. 37 The decision in University of Cambridge was highly controversial in that it established that even books which were not registered at Stationers’ Hall in accordance with the legislation were, nevertheless, required to be delivered to the copyright libraries. A considerable number of publications followed in its wake decrying the result: Brydges, E. (1813), A Summary Statement of the Great Grievance imposed on Authors and Publishers, London: Longman, Hurst, Rees, Orme and Brown; Cochrane, J.G. (1813), The Case Stated between The Public Libraries and the Booksellers, London: Moyes; Turner, S. (1813), Reasons for a Modification of the Act of Anne, Respecting the Delivery of Books and Copyright, London: Nichols and Son and Bentley; Britton, J. (1814), The Right of Literature, or an Inquiry into the Policy and Justice of the Claims of Certain Public Libraries on all the Publishers and Authors of the United Kingdom, London: Valpy. Not surprisingly, those who wrote condemning the decision invoked the conceit of an author’s copyright subsisting at common law, with the library deposit requirement representing a tax upon this natural property right. For example, Brydges wrote that ‘[t]he Legislature has long acknowledged (and the Common Law seems from early ages to have acknowledged) the principle of property in the productions of a man’s mind’ and that ‘[t]his tax then is a blight to production. It nips the most valuable fruits of Literature in their very bud’, ibid., p. 12. Similarly, Cochrane wrote that ‘[f]rom the first introduction of printing into England ... there had been no legislative enactment on the subject, but it had always been understood and acted upon, that the copyright of every author or proprietor was vested in him in perpetuity’, ibid., p. 3. Again, Turner commented: ‘It will make the question of right still more clear, if we consider what property in copyright authors did possess, and would now have possessed, if the Act of Anne had never passed. Happily, we here have to tread on firm ground; the legal corresponds with the moral and philosophical right. It is well known that in the Case of Millar v. Taylor, 1769, Lord Mansfield, and Mr. Justice Willes, and Mr. Justice Aston, were of opinion, that there was a common law right of an author to his copy in perpetuity, independent of the Act of Anne, and that it was not taken away by his publication of the work, or by the Act of Anne … The same question was brought before the House of Lords, 1774, in the Case of Donaldson against Becket … [and] on this solemn decision, it was determined that by the passing of the Act of Anne the perpetual right of authors had been taken away, and a term of fourteen years, with the contingency of another term of fourteen years, substituted in its stead’, ibid., pp. 22–23. Moreover, Turner makes his observations as to the impact of Donaldson relying entirely upon the opinions of the common law judges, and without making any reference to the speeches of the Lords at all; ibid. A Select

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This approach was consistent with his previous decision in Roworth v. Wilkes (1807), which concerned the reproduction of the plaintiff’s treatise, The Art of Defence on Foot, including various engravings contained therein.38 As to the prints in particular, the relevant legislation required that the owner engrave his name upon them,39 which the plaintiff had failed to do; as a result the defendant argued that Roworth was not entitled to any remedy under the 1735 Act. Lord Ellenborough observed: ‘Although the plaintiff’s name is not engraved upon them, if there has been a piracy, I think the plaintiff is entitled to a verdict … The interest being vested, the common law gives the remedy’.40 In the instant case, that the work had not been registered did not then mean that the plaintiff had no protection in accordance with the legislation, as a result of which he was liable for delivery of his published work, given that the library deposit provision ‘relates to the persons whose property is protected for the period for which it is protected’.41 Lord Ellenborough presided over one further case with a direct link to Donaldson before Isaac Espinasse completed and published his Treatise on the Law of Actions on Statutes … and on the Statutes Respecting Copyright (1824) (Treatise on the Law of Actions on Statutes):42 Brooke v. Clarke (1818) (Brooke (1818)).43 The link was Francis Hargrave, the author of an annotated version of Coke’s Institutes of the Laws of England, to which the action pertained. Hargrave had been third counsel for the London booksellers in Donaldson and, not given the opportunity to present his arguments before the Committee of the House of Commons was appointed to look into the library deposit provisions, amongst other things. In its Report of June 1818 the Select Committee noted as follows: ‘During this period, the claim of authors and publishers to the perpetual Copyright of their publications, vested upon what was afterwards determined to have been the common law, by a majority of nine to three of the Judges, on the cases of Millar and Taylor in 1769, and Donaldson and Becket in 1774 … By this Act [the 1709], which in the last of these two cases, has since been determined to have destroyed the former perpetual Copyright, and to have submitted one for a more limited period’; (1818) Report from the Select Committee on the Copyright Acts, 4. 38 Roworth v. Wilkes (1807) M&R 94 (Roworth); Roworth, C. (1798), The Art of Defence on Foot, with the broad sword and sabre, uniting the Scotch and Austrian methods into one regular system, London: Egerton. 39 Engraving Copyright Act 1735, s. 1. See also: Engraving Copyright Act 1767; Prints Copyright Act 1776, 17 Geo. 3, c. 57. 40 Roworth, p. 98 (emphasis added). 41 University of Cambridge, pp. 322–23. On this opinion that the remedy at common law would lie for so long as the statutory protection lasted see also the decision of the Scottish Court of Session in Cadell and Davies v. Robertson (1812) The Times, 7 March 1812. 42 Espinasse, I. (1824), A Treatise on the Law of Actions on Statutes … and on the Statutes Respecting Copyright, London. 43 Brooke v. Clarke (1818) 1 B&Ald 396.

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Lords, he published them after the decision as An Argument in Defence of Literary Property.44 Hargrave, who was still living, had first published his edition of the Institutes of the Laws in England in 1783, and had executed an assignment to the defendant the following year. In accordance with the provisions in the 1709 Act the copyright in the work subsisted for the next 28 years.45 On 12 February 1817 however, Hargrave executed a further assignment of the same work, this time to the plaintiff. When the defendant continued to publish the work, the plaintiff sought an injunction to prevent them from so doing, and the matter was referred by the Lord Chancellor to Ellenborough CJ’s court. The plaintiff sought to rely upon the recently passed Copyright Act 1814, the first substantial revision of the Statute of Anne.46 Among other things, the new legislation provided that any new work, printed and published, would be protected for a single 28-year term, and that should the author of the work still be alive at the end of that period, he would enjoy the copyright in the work ‘for the residue of his natural life’.47 Moreover, the Act set out that: [I]f the author of any book or books which have been already published shall be living at the end of twenty eight years after the first publication of the said book or books, he or she shall for the remainder of his or her life have the sole right of printing and publishing the same.48

It was upon the basis of this provision that Hargrave sold the rights in his work to the plaintiff, the plaintiff arguing before the court that the provision extended equally well to those works by living authors in which the copyright had previously expired, as to those works by living authors that were still within their copyright term at the time of the passing of the Copyright Act 1814. In a unanimous decision, Ellenborough CJ and the rest of the court held on behalf of the defendant – the act did not operate retrospectively – those copyrights which had previously expired were not to be revived.49 Hargrave, 44 Hargrave, F. (1774), An Argument in Defence of Literary Property, London: Otridge, reprinted in Parks, S. (ed.) (1974), Four Tracts on Freedom of the Press, 1790–1821, New York, US and London, UK: Garland Publishing; see also Deazley, supra n. 29, pp. 221–26. 45 Statute of Anne, ss. 1 and 11. 46 Copyright Act 1814, 54 Geo. 3, c. 156. 47 Ibid., s. 4. 48 Supra n. 46, s. 9. 49 Comparisons might be made with the changes implemented by the European Directive harmonising the term of protection of copyright and certain related rights, 93/98/EEC; see also the Duration of Copyright and Rights in Performances Regulations 1995, SI 1995/3297. For other of Lord Ellenborough’s decisions concerning copyright see: Cary v. Kearsley (1803) 4 Esp 168; Hime v. Dale (1803) 11 East 244; Du Bost v. Beresford (1810) 2 Camp. 511; Power v. Walker (1814) 3 M&S 7.

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himself an author, who in Donaldson had sought to establish the existence of a perpetual common law copyright, and had argued so eloquently for the same in his treatise of that year, was denied a lifetime interest in his works a second time. When Isaac Espinasse published his Treatise in 1824, Lord Kenyon’s court in Beckford,50 and Lord Ellenborough’s court in University of Cambridge and Brooke (1818), had presented two contrasting readings on the existence of an authorial property right independent of the statute. In his chapter on copyright, entitled ‘Actions for the Infringement of the Copyright of Authors’,51 Espinasse opted for the former. The second section within that chapter addressed the question as to ‘How far the Common Law Copyright is confined or regulated by the Statute of Anne and subsequent Statutes, and how it stands at present’. In his opinion the author had ‘the sole right of printing and publishing his own work … by common law … but the exercise of that right was by the operation of [the 1709 Act] limited and restrained to fourteen years, with an extension of a further fourteen years if the author was living at the expiration of the first’. The result of the enactment of the Statute of Anne, he continued, was to give the author ‘an additional remedy by penalty, which he had not before’ while leaving him ‘his common law right, limited to the term of twenty-eight years at the utmost’.52 In this, Espinasse was followed by Robert Maugham (later grandfather to the writer W. Somerset Maugham) who produced the first substantial text entirely devoted to the law relating to copyright: A Treatise on the Laws of Literary Property (1828).53 Maugham, whose work incorporated a lengthy ‘Historical View of the Law’,54 was much more strident in impressing upon his reader that ‘an author was entitled to the exclusive enjoyment of his copyright in perpetuity’.55 In introducing his text he acknowledged that ‘every person may … be permitted to indulge his own opinion upon the propriety of the [present] law’,56 and one need read no further than his ‘Introductory 50 See also the observations of Abbot CJ in White v. Geroch that ‘[t]he object of the Legislature was, to confer upon authors, by the Act in question, a more durable interest in their compositions, than they had before … The 8 Anne, c. 19, gave to authors a copyright in works not only composed and printed, but composed and not printed; and I think that it was not the intention of the Legislature … to abridge authors of any of their former rights’; (1819) 2 B&Ald 298, pp. 300–01. 51 Espinasse, supra n. 42, pp. 72–148. 52 Ibid., p. 89. 53 Maugham, R. (1828), A Treatise on the Laws of Literary Property, London. 54 Ibid., pp. 1–62. 55 Supra n. 53, pp. 6–7. 56 Ibid., p. viii.

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Dissertation’ to appreciate the full weight of his partiality as regards the common law right. Drawing a comparison with the earlier ages of ‘semibarbarism’ in which ‘the books of a scholar were … respected as sacred property’ and ‘every inducement [was] presented to the ingenious student for the improvement of his faculties, and the cultivation of letters’, Maugham, with no little vitriol, lambasted the present era of ‘boasted enlightenment’ which bore witness to hardly anything more than ‘the curtailment of rights, and the imposition of burthens [sic]’.57 He criticised the decision in Donaldson as one in which ‘some one, with more technical ingenuity than love of literature, enjoyed “the bad eminence” of overthrowing the evident spirit and intention of the act, by the supposed ambiguity of its language’,58 and pressed the familiar figures of Mansfield, William Blackstone and Kenyon into service in support of his argument, seeking to remind each member of the public of their positive duty in promoting the adoption of just and fair principles, ‘since the mischief that is done to his neighbour today, may be perpetrated on himself tomorrow’.59 Between the publication of Maugham’s Treatise on the Laws of Literary Property and the decision of the House of Lords in Jeffreys v. Boosey (1854) (Jeffreys) two further texts were produced that warrant some comment. The first, An Historical Sketch of the Law of Copyright (1840), was written by John J Lowndes and dedicated to Sergeant Thomas Noon Talfourd, who at the time was engaged in trying to secure a legislative overhaul of the copyright protection for literary works (which efforts would eventually lead to the Copyright Act 1842).60 Lowndes, like Maugham, was unabashed about declaring his motives for laying his work before the public. Its purpose was ‘to attempt to remove any misapprehensions which prevail with regard to this species of property, both as to its former existence, and as to the effect and expediency of the measure proposed by Sergeant Talfourd’. He further confessed that he should not consider ‘the few leisure hours’ he had devoted to the writing of his work a waste ‘if, by the perusal of the following pages, the reader is convinced that such a right as that known by the name of copyright did formerly exist at 57

Supra n. 53. Supra n. 53, p. xii. The ‘evident spirit and intent of the act’ Maugham described as follows: ‘[T]hough the language of the statute limited the administration of justice to fourteen years, (as modern ingenuity construed it) its spirit was understood to apply only to the penal enactments against piracy, … leaving untouched the ancient remedy for the recovery of actual damages’; p. xi. 59 Supra n. 53, p. xviii. 60 In general see Seville, C. (1999), Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act, Cambridge: Cambridge University Press. 58

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common law’.61 His text provided a synopsis of the history of copyright, from the invention of the printing press, through the sixteenth and seventeenth centuries, to Millar, Donaldson and Beckford. As to Beckford, Lowndes wrote: The Court, in this case, felt the difficulty in which they were placed by the House of Lords, on the appeal of Donaldson against Beckett and others, for they were bound to construe the statute 8 of Anne, c.19, as taking away a previously existing common-law right of the author; and yet they could not conceal from themselves, the injustice of such a construction, or reconcile it to the express language of the act. … They were therefore obliged to put what may almost be termed a forced construction on the first section, to supply the remedy they felt necessary, and which they in vain sought for in the express provisions of the act.62

To this passage Lowndes appended a clumsily inconsistent, if perhaps not surprising, observation, albeit in a footnote: ‘This fact alone seems to me a strong argument that the 8th of Anne, c. 19, did not take away the author’s preexisting common-law right’.63 The second treatise appeared 7 years later, penned by the American George Ticknor Curtis, and published on both sides of the Atlantic.64 To the historical and doctrinal aspects of Lowndes’ and Espinasse’s work Curtis overlaid an extended essay on the ‘Theory of the Rights of Authors’ suggesting that, before entering ‘upon the field of municipal jurisprudence, it may be well to pass through the more enlarged region of natural law’.65 His analysis was firmly rooted in the tradition of Blackstone, and earlier theorists such as Grotius and Puffendorff, taking the notion of occupancy as the foundation of an individual’s property rights. Eighty years previously, Blackstone had argued that there was a species of property which: [B]eing grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions.66

61 Lowndes, J.J. (1840), An Historical Sketch of the Law of Copyright, London, Preface. 62 Ibid., p. 62. 63 Supra n. 61, p. 61. 64 Curtis, G.T. (1847), A Treatise on the Law of Copyright, London, UK and Boston, US: Maxwell & Son and Little and Brown. 65 Ibid., 1. 66 Blackstone, W. (1766), Commentaries on the Laws of England, vol. 2, reprinted in (1979), A Facsimile of the First Edition of 1765–1769, Chicago, US and London, UK: University of Chicago Press, p. 405.

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Employing almost identical sentiments, Curtis asserted that an author’s ‘dominion over his written composition is perfect, since it is founded both in occupancy or possession, and in invention or creation. No title can be more complete than this’.67 Equally clear was the fact that this property was ‘incorporeal’ in nature, could not ‘be seized by creditors, to the effect of entitling them to publish it’, and would pass to an author’s ‘personal representatives, though neither the author nor his representatives have any manuscript whatever of the work’.68 Moreover, his own historical analysis led him to the same conclusion. On Donaldson he noted: It is sufficient to observe that the whole bench of judges, with one exception, held that at common law an exclusive right to publish the contents of a Manuscript resided in the author, and that nine of them (including Lord Mansfield) did not consider that publication made the literary composition publici juris.69

As was the case with the reasoning in Beckford and the synopsis of Donaldson by Montefiore, the decision of the House of Lords was to pale into insignificance in light of the weight of judicial authority in support of the common law right. As to Millar in particular, Curtis exhorted that: The great men concerned in this cause, the ability with which it was argued, and the deliberation attending the decision, must forever give it a high value in the estimation of every lawyer. It was argued and adjudged with consummate learning and ability; Lord Mansfield’s judgment was worthy of his great name, and he was assisted by two of his brethren in a manner that reflects upon them and him the highest honor.70

‘It is clear’ he concluded ‘that there was such a thing as literary property in England, before the reign of Queen Anne’.71 67

Curtis, supra n. 64, p. 12. Ibid., pp. 85–86. 69 Supra n. 64, p. 65. Between the two texts by Lowndes and Curtis, Peter Burke published his Treatise on the Law of Copyright in which he began the first chapter, ‘Copyright in Literature’, with this self same quote from Blackstone, before going on to recount the orthodox reading of Millar and Donaldson and their place in the debate upon the existence or not of the common law right; Burke, P. (1842), A Treatise on the Law of Copyright in Literature, The Drama, Music, Engraving and Sculpture, London: Richards, pp. 1–4. Of the Copyright Act 1842 in particular, Burke wrote that the ‘labour of the brain, which in general estimation stands the most eminent, has security there’; ibid., p. v. 70 Curtis, supra n. 64, p. 55. 71 Ibid., p. 75. In Wheaton v. Peters (1834) 33 US 591, the United States Supreme Court were asked to decide whether the English common law copyright had been adopted by Pennsylvania upon the formation of the state; in a majority decision the court concluded that it had not. For a commentary upon Wheaton see Abrams, H. 68

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In the midst of all of this there was however one exception. In 1823, Richard Godson published the first edition of his A Practical Treatise on the Law of Patents for Inventions and of Copyright.72 For Godson, there existed no theoretical and so no legal difference between the nature of a property in a patent or in a copyrighted work. In his Preface he set out that: ‘The laws which prevent persons making machines or printing books, from in which by purchase they have acquired a property, are in their nature restrictive; and give to inventors and authors different kinds of Monopolies’.73 In this vein, he split his work into three discrete sections, the first ‘On Monopolies’, the second ‘On Patents for Inventions’, and the third ‘On Copyright’.74 Ideologically Godson’s position on copyright flew in the face of the predominant discourse: ‘Supposing then that no right existed at common law … all literary property or copyright is either founded by construction on the statute of 8 Anne, or given by the positive provisions of other acts of parliament’.75 As for Millar, while he made reference to the ‘very elaborate’ opinions of Lord Mansfield and the other majority judges, at the same time he stressed the ‘most profound and eloquent opinion’ of Yates J ‘that an author had not such a common law right’. In Donaldson he noted, ‘it was settled that if the right contended for did ever exist’ it had ‘been abrogated by the statute of 8 Ann’.76 In the context of the times one might well criticise Godson in deliberately presenting a more ambivalent reading of both Millar and Donaldson than otherwise seemed to be warranted; it was certainly one which distinguished him from that of his contemporaries. As we shall see however, Godson was not the only writer prone to letting his personal opinions influence the manner in which he articulated the historical trajectory and contemporary parameters of the law. In any event, through the various treatise writers of the early nineteenth century we can trace the emergence and rise of the cult of Millar.77 That they (1983), ‘The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright’, Wayne Law Review, p. 1119. 72 Godson, R. (1823), A Practical Treatise on the Law of Patents for Inventions and of Copyright, London: Butterworth and Son. 73 Ibid., p. vi. 74 For Godson, that copyright should provide the substance for the third and last book made perfect sense given that ‘many of the principles of Copyright can be illustrated by the reasoning on Patents’, supra n. 72, p. vi. 75 Supra n. 72, p. 207. 76 Supra n. 72, pp. 204–205 (emphasis added). 77 Similar opinions were also being disseminated in the specialised periodical literature of the day. See for example: Anon. (1838), ‘The Law of Copyright’, Law Magazine, 19, p. 365, in which the author, noting that ‘[t]he general feeling of mankind must favour the author in any question which relates to the full enjoyment of the profits of his work’, recounts both Millar and Donaldson, relying upon Lord Mansfield and Blackstone as authorities upon the question of the common law right. Of these two in

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should have gained a foothold within contemporary legal discourse should not perhaps surprise, given that the various doctrinal, historical and theoretical strands upon which they relied essentially replicated much of the substance of the argument that had been developed by the London monopolists nearly one hundred years previously, in the run up to the decision in Millar itself. During that earlier period however, when the consequence of what was a very public debate concerned whether the copyright in any work would lie with a bookseller in perpetuity, for every argument presented in favour of the common law right there was a counterargument, for every thesis, an antithesis – in many respects the very viability of the Scottish book trade depended upon it.78 Now however, it had been settled that the term of copyright protection was to be defined by statute alone, the threat of a perpetual monopoly in any writer’s work had long subsided, and the marketplace had adjusted accordingly. Under these circumstances, so long as a common law right was definitively supplanted by the legislation, there was no real reason for any bookseller to contest its existence or not (indeed there was probably much to be gained in simply accepting the existence of the common law right). That this was the case would appear to be evident in what is perhaps one of the most remarkable aspects of the published writing on copyright at this time – that, Godson aside, Montefiore, Espinasse, Maugham, Lowndes and Curtis were all essentially ‘singing from the same sheet’, and that this historical and theoretical orthodoxy as to the nature of copyright was being perpetuated essentially unchallenged.

It was perhaps fitting that it should be an American author to write the last significant copyright treatise to be published prior to the House of Lords’ deliberations in Jeffreys (1854) given that,79 between the publication of Espinasse’s work in 1824 and the conclusion of Jeffreys 30 years later, it was the issue of whether or not copyright subsisted in the work of foreign authors which provided the key catalyst for judicial consideration as to the existence of a common law right (which issue would lead to the decision in Jeffreys particular he continued: ‘let it be remembered that Mansfield and Blackstone … are not only two names distinguished in legal history as reflecting splendour on their profession, but men whose minds travelled beyond that profession; deeply read in the civil law on which they based their knowledge of the law of England; men of great literary attainments, and of extensive views; ibid., pp. 365, 367–68. See also: Anon. (1835), ‘Law of Copyright in America’, Law Magazine, 13, p. 331, in which ‘Maugham on Literary Property’ is cited as an authority on point, and Anon. (1841), ‘Copyright in Sermons’, Law Magazine, 25, p. 249. 78 In general see Deazley, supra n. 29, Chapters 5(1), 5(2) and 6. 79 Jeffreys v. Boosey (1854) 4 HLC 815.

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itself). Most of these cases involved allegations of the unlawful publication of copyright-protected musical works, a great number of which came before the courts after Curtis had published his Treatise on the Law of Copyright (1847).80 The first recorded case however is that of Clementi v. Walker (1824) (Clementi) decided in the same year as Espinasse published his Treatise on the Law of Actions on Statutes.81 In Clementi the German-born French pianist Friedrich Kalkbrenner had composed a popular air entitled Viva Henri Quatre, the rights to which he sold in France in June 1814 while at the same time reserving to himself the right of publication in England; this he sold to the plaintiffs in July of the same year. The initial agreement with the plaintiffs however was an oral one only and would not be set out in writing until 1822. In the interim the defendant, having purchased a copy of the music in Paris, published it in December 1818. Upon the basis that the oral agreement in 1814 did not amount to an assignment of the copyright in the work to the plaintiffs,82 the question for the court was whether the publication by the defendant in 1818 amounted to an infringement of anyone’s rights? Put differently, could an author whose work was first published abroad prevent someone from reproducing the work in Britain? Campbell,83 arguing for the defendant, played a jingoistic masterstroke in stressing the role of the copyright statutes in encouraging ‘British industry and capital’. The strategy obviously struck a chord with Bayley J who, holding for Walker, commented: [T]he Legislature must be supposed to have legislated with a view to British interests and the advancement of British learning. By confining the privilege to British printing, British capital, workmen and materials would be employed, and the work would be within the reach of the British public. By extending the privilege to foreign printing, the employment of British capital, workmen, and materials might be suspended, and the work might never find its way to the British public. Without very clear words, therefore, to shew [sic] an intention to extend the privilege to foreign publications, I should think [the Statute of Anne] must be confined to books printed in this kingdom … To hold to the contrary would discourage British enterprise, and stop avenues to British knowledge.84

80 See for example: Boozey v. Tolkein (1848) 5 CB 476; Boosey v. Purday (1848) The Times, 30 June 1848; Cocks v. Purday (1848) 5 CB 860; Cocks v. Lonsdale (1849) The Times, 29 March 1849; Novello v. James (1851) The Times, 25 March 1851; Boosey v. Jeffreys (1851) 6 Ex Rep 580; Buxton v. James (1851) 5 DeG&S 80; Novello v. Sudlow (1852) 12 CBR 177; Jeffreys (1854). 81 Clementi v. Walker (1824) 2 B&C 861 (Clementi). 82 Upon the basis that the statute required all assignments to be ‘in writing’; see Power v. Walker (1814) 3 M&S 7. 83 This was most likely John Campbell who would later become Lord Chief Justice and hand down the decision of the court in Boosey v. Jeffreys (1851); infra n. 125 and accompanying text. 84 Clementi, pp. 867–68, 870. See also Page v. Townsend (1832) 5 Sim 395,

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This line was followed in Delondre v. Shaw (1828) (Delondre), which involved the copyright in a label on a bottle of medicine. The medicine itself, a preparation of Peruvian bark called sulphate of quinine, had been invented and was sold by the plaintiff in Great Britain, but was manufactured for the plaintiff by a French chemist, Pelletier, who had also designed the label.85 Shadwell VC refused to grant the injunction stating simply that ‘[t]he Court does not protect the copyright of a foreigner’.86 Next came Guichard v. Mori (1831) (Guichard), again about a musical work, first published in Paris in 1814, and subsequently published within Britain by the plaintiff in 1820.87 Deciding in the defendant’s favour Henry Brougham, now Lord Chancellor, stressed not so much the interests of industry and capital, but otherwise drew upon Bayley J’s theme on the ‘avenues to British knowledge’ in observing: [I]t is sufficient to say that the legislature encourages the importation of foreign works; it wishes to keep open the avenues of knowledge; and an author beyond the sea who desires to secure any privilege here, either to himself or any one to take under him, should publish here immediately … Could he come forward several years after publication abroad, and treat an intermediate publication in this country as a piracy, many foreign works would never be published amongst us at all.88

In both Clementi and Guichard the works in question had been first published abroad; in D’Almaine v. Boosey (1835) (D’Almaine) the situation was somewhat different.89 The composer Daniel François Esprit Auber wrote the music for an opera, Lestocq (first performed in Paris in May 1834), and sold the rights to publish the music in Britain to D’Almaine who registered and concerning prints published in Paris 2 days before they were published in London, in which Shadwell VC commented: ‘It is plain that the object of the Legislature was to protect those works which were designed, engraved, etched or worked in Great Britain, and not those which were designed, engraved, etched or worked abroad, and only published in Great Britain’; ibid., p. 404. 85 Delondre v. Shaw (1828) 2 Sim 237. 86 Ibid. 87 Guichard v. Mori (1831) 2 Coopers 216; The Times, 23 March 1831. 88 Ibid., p. 216. That Brougham should have stressed the role of the legislature in keeping open ‘the avenues of knowledge’ should not surprise, given the extent to which he was involved in educational reform throughout his life. Described by one of his contemporaries as ‘the foremost advocate of popular education’ Brougham was involved in the operation of Mechanic’s Institutes (which sought to encourage working men to educate themselves upon matters of philosophy and the natural sciences), and played a central role in the establishing of the Society for the Diffusion of Useful Knowledge in 1826, as well as the founding of the University of London. Later in 1856, in his seventy-ninth year, he was instrumental in establishing the National Association for the Promotion of Social Science. In general see Stewart, R. (1986), Henry Brougham, His Public Career 1778–1868, London: The Bodley Head, pp. 183–204. 89 D’Almaine v. Boosey (1835) 1 Y&C 288.

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published the work in June of that year. Auber, however, had also assigned the right to publish the work on the continent to a French publisher and, while there was some disagreement as to when he first published his edition of the work, it appears not to have been released in France until July, a few weeks after D’Alamine’s edition appeared in London. Twiss, for the plaintiff, stated simply that ‘[c]opyright exists at common law, and the power to transfer such a right is recognized by the statute of Anne’ – the assignment of the work to his client was then ‘valid at common law, if not under the act of Parliament’.90 Beames and Wood, for the defendant, relied upon Delondre in which case they suggested ‘there is an express decision on the subject. In that case one of the grounds of the Vice Chancellor’s judgment was, that a foreigner can have no copyright which a Court of equity will protect.’ Abinger CB intervened: What has that case to do with copyright? The substantial ground for the relief was, that the property of the plaintiff was injured by the sale of a spurious article by another party. Am I to understand that, if a foreigner residing here were to invent and publish a work, and enter it at Stationers’ Hall, he would have no property in that work?91

Counsel replied: ‘The present is not that case; but it is difficult to say that a foreigner so circumstanced would have any such property, for the object of the act was solely to encourage British skill and industry.’92 Lord Abinger disagreed with the defendant’s reading of both Delondre and the legislation: I have been struck with the authorities [Delondre] produced on behalf of the defendant, and if the Vice Chancellor had decided expressly that a foreigner, quà foreigner, had no protection in England in regard to copyright, I confess I should have doubted the correctness of that decision; … But the case which has been cited upon the subject does not go to that length; it is in principle not quite intelligible, but there was a clear ground for an injunction independent of the question of copyright. Besides, that was a case where one of the parties resided abroad; and all 90

Ibid., p. 293. Supra n. 89, p. 295. Lord Abinger (James Scarlett) had had plenty of previous experience with copyright litigation having been counsel in various cases including: Murray v. Elliston (1822) 5 B&Ald 657; West v. Francis (1822) 5 B&Ald 737; Stockdale v. Onwhyn (1826) 5 B&C 174; Trustees of the British Museum v. Payne (1827) 4 Bing 540; Murray v. Limbird (1828) The Times, 10 December 1828; Murray v. Heath (1831) 1 B&AD 804; Archbold v. Sweet (1832) The Times, 10 February 1832; Cumberland v. Planche (1834) 1 AD&E 580; and Dewar v. Purday (1834) The Times, 18 June 1834. Indeed in Murray v. Elliston (1822), in argument before the court, Scarlett referred to the decision in Donaldson in the following terms: ‘[T]hat though the decision in Burrow’s Reports, was against the copyright at common law, posterity had attributed the weight of reason to the arguments of the minority [one presumes the account should read ‘majority’] of the judges’; The Times, 4 May 1822. 92 D’Almaine, p. 295. 91

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Rethinking copyright the Vice Chancellor said was, that the publisher of a work at Paris could not protect himself in a Court of justice in England.93

The question, Lord Abinger continued, had in fact been settled nearly 50 years earlier in Bach v. Longman (1777) (Bach) which, although an action concerning the question of whether music could be considered to be ‘writing’ within the Statute of Anne, nevertheless involved a plaintiff who was German born;94 the judge presiding was none other than Lord Mansfield.95 As to case before him he continued: Early in 1834 the plaintiff purchased the manuscript of the opera in question from Auber. At that time it was not published by any other person. The opera was indeed soon afterwards represented in Paris; but that was no publication. No work was at that time published abroad from which any other work of this nature might have been produced; and Auber, being abroad, sells his very work to the plaintiffs. The plaintiffs, therefore, acquired a copyright in it before publication. They publish the work. After they have published it, comes out the publication of the defendant.96

Leaving to one side Abinger CB’s claims as to the relevance of Bach, there seems no doubt that he could well have decided in the plaintiff’s favour based upon the 1709 Act alone and in accordance with Bayley J and Brougham LC’s observations in Clementi and Guichard. After all, D’Almaine, an Englishman, was the assignee of a book composed but not yet printed or published (either in England or abroad),97 and was the first to register and publish the work in accordance with the statute;98 in this regard it made little difference where or 93

Ibid., p. 297. Bach v. Longman (1777) 2 Cowp 623. 95 On this question of whether musical works fell within the protection of the Act he continued: ‘From the expressions of Lord Mansfield it is clear that he considered printed music to be nothing more than a short-hand mode of representing what might be written in another manner at great length. In Hime v. Dale this doctrine was doubted. I was for the plaintiff in that action … and I remember that Lord Ellenborough doubted, not only whether music was within the provision of the statute, but also whether music printed on a single sheet was a book. Having to investigate the subject for the purpose of moving for a new trial, I spent three or four days at Stationers’ Hall in order to ascertain what entries were made under the act of Parliament, and I found, not only that short publications on single sheets of paper were entered as books, but also a great deal of music. There is no doubt, therefore, that printed music, in whatever form it is published, is to be considered … as a book’. Of no small interest is that Lord Ellenborough should be the subject of the implicit criticism in Abinger CB’s remarks. 96 D’Almaine, pp. 299–300. 97 This of course is to leave to one side Abinger CB’s observation that public performance did not amount to publication. 98 The Act states that ‘the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assign or assigns 94

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by whom the work was written.99 Moreover, it seems likely that Bayley J or Brougham LC would have decided the case in the same way. However, note Abinger CB’s assertion that in purchasing the ‘manuscript of the opera’ the plaintiffs acquired ‘a copyright in it before publication’; for him, this was a case of ‘a copyright vested in the plaintiffs of a work protected by the statute as well as the common law, and of a piracy committed in the publication of it afterwards by the defendant’.100 Despite Lord Abinger’s reliance upon both statute and common law in resolving D’Almaine, over the next 10 years there was little, if any, significant judicial discussion of the existence or not of the common law right per se.101 Certainly, during this period, various counsel would refer to the issue in argument before the court,102 however there was nothing to indicate that the orthodoxy presented by writers such as Maugham and Lowndes was ever under question.103 Indeed, Abinger CB would reiterate it himself in the case of shall have the sole liberty of printing and reprinting such book or books for the term of 14 years, to commence from the day of the first publishing the same, and no longer’ (s. 1). 99 On this point Abinger CB notes: ‘The point whether the copyright of a foreigner is protected at all in this country does not arise in the present case, because the plaintiff D’Almaine is not a foreigner. He could acquire the copyright of a publication as well from a foreigner as an Englishman. If he is the owner of the work it makes no difference whether he composed it himself or bought it from a foreigner’; D’Almaine, p. 300. 100 Ibid., pp. 299–300. 101 In Pepoli v. Laporte (1837) The Times, 17 June 1837, protection was refused for the libretto from the opera Malek Adel as the work had been first performed in Paris. In Bentley v. Foster (1839) 10 Sim 329, Shadwell VC was content to grant an injunction against copyright infringment so long as the work, written by an American author, was first published in London; see also Boosey v. Lonsdale (1841) The Times, 18 June 1841, concerning the reproduction of certain Arias from the Opera La Veneziana Ossia Il Bravo, which according to the plaintiff had been previously published ‘neither here nor abroad’. 102 See for example: Trustees of the British Museum v. Payne (1827) 4 Bing 540, in which the Attorney-General commented that prior to the Statute of Anne ‘it was generally imagined that [authors] possessed rights which could not be encroached upon; but the full extent of those rights was undefined’; Barnett v. Glossop (1835) 1 Scott’s 621, in which Thomas, counsel for the defendant, suggested to the court that ‘[t]here can be no copyright except by statute’; and Colburn v. Duncombe (1838) 9 Simon’s Rep 151, in which the defendants argued that ‘[t]here was no such thing as copyright at common law. It is a new species of property created by 8 Anne, c. 19’. 103 In Colburn v. Simms (1843) 2 Hare’s 543, concerning the availability of the remedy of delivery of copies in equity, Wigram VC commented as follows: ‘It may be true that, if one writes or prints upon the paper of another, the writing or printing becomes his to whom the paper belongs, but it does not necessarily follow that the converse of that proposition would be true, – that one who writes or prints upon his own paper the composition of another, has thereby so mixed his property with the

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Chappell v. Purday (1841) (Chappell (1841)).104 Chappell (1841) involved an allegation of infringement in the overture to the opera Fra Diavolo, again by Auber, which had been completed and first performed in Paris prior to an assignment to the plaintiff of the right to publish the work in England. In the first instance an injunction was granted which Purday sought to have dissolved. It transpired, however, that while Chappell had purchased the work in 1830, no assignment in writing was actually executed until June 1836,105 during which time other booksellers had apparently imported and sold copies of the work without any objection on Chappell’s part. Without prejudicing the plaintiff’s right to pursue the claim at common law, Abinger CB dissolved the injunction,106 but given that the issue of copyright in works by foreign authors had been raised, he took the opportunity to ‘address a few words to that question’, and to Millar and Donaldson in particular: [W]hen I came to the profession I took a great interest in the case of Millar v. Taylor, and other cases of that sort. In that case Lord Mansfield and two of the judges differed from Mr. Justice Yates, and I own I think that to the material parts of Mr. Justice Yates’s argument Lord Mansfield made a successful reply … Lord Mansfield said, … “That the reasons for supporting the author’s right before publication were equally applicable after publication;” and I think that was a successful reply.107

As for Donaldson, he noted that eight of the judges involved agreed with Lord Mansfield’s position and ‘[t]hat being the case, the law was then settled as regarded the common law right’.108 property of the author whose work he has copied, that he has lost his original title to the material which he has so employed. There might have been some countenance for such a principle before the judgment of the House of Lords, in the case of Donaldson v. Beckett, had confined the exclusive right of authors within the limits prescribed by the statute, and thereby negatived the existence of that absolute common-law right in their works which had been previously supposed to exist, and which the decision of the Court of King’s Bench, in the case of Millar v. Taylor, had tended to affirm’; ibid., pp. 554–55. 104 Chappell v. Purday (1841) 4 Y&C 485. 105 Chappell himself had died in 1834; it was his wife, and executrix, who secured the assignment after his death. 106 Abinger CB commented as follows: ‘[I]t is a question of considerable doubt, and I cannot decide it on motion … The question is, whether a party who, before the copyright had actually parted with to him (because at that time there was no conveyance), had permitted the books to be imported here, and sold without interference, is afterwards to be at liberty to come forward and say, that no party shall do the like again? It is an important question, and I think it is sufficiently doubtful to prevent any interference by injunction until it is decided’; Chappell (1841), p. 495. 107 Ibid., p. 494. 108 Chappell (1841), p. 495.

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Chappell did indeed bring the case at common law but by the time it came on to be heard, Abinger CB had been succeeded by Pollock CB (in April 1844). Unfortunately for Chappell, the new Chief Baron’s opinions on the question of the common law were somewhat different from those of the former. Pollock CB, in a passage which requires to be set out in full, observed: Two questions of importance were raised in the course of the argument. The first is, whether, at common law, a foreigner, residing abroad, and composing a work, has a copyright in England … Upon the first question we do not feel any difficulty; and we are of the opinion that a foreign author, residing abroad, and publishing a work there, has not by the common law of England any copyright here. A copyright is the exclusive right of multiplying copies of an original work or composition, and consequently preventing others from so doing. The general question, whether there was such a right at common law, was elaborately discussed in the great cases of Millar v. Taylor and Donaldson v. Beckett. In Millar v. Taylor, it was decided by Lord Mansfield, Mr Justice Aston, and Mr Justice Willes, that at common law such a right existed, and the judgment was given for the plaintiff; and in Donaldson v. Beckett, which was an injunction founded upon the judgment in Millar v. Taylor, the majority of the judges held that such a common-law right existed; but the majority also held that it was taken away by the Statute of Anne. We are, however, all of opinion that no such right exists in a foreigner at the common law, but that it is the creature of the municipal law of each country, and that in England it is altogether governed by the statutes which have been passed to create and regulate it, as in France it must be governed by the law of that country; but such a law has no extraterritorial power, and cannot be enforced beyond the limits of the state.109

Having dispensed with the argument at common law, Pollock CB proceeded to consider whether a foreign author had any right under the existing statutory regime. On this point he was unequivocal noting that the statutes were passed ‘for the encouragement of learning and the arts, by ensuring to authors, artists, and inventors, the reward of their labours’, but continuing that ‘prima facie it must be intended that a British Legislature means only to protect British subjects, and to foster and encourage British industry and talent’.110 The court concluded: Upon the whole, then, we think it doubtful whether a foreigner not resident here can have an English copyright at all; and we think he certainly cannot, if he has first published his work abroad before any publication in England … that as the publication in Paris, by the composer or his assignee there, prevents a copyright 109 Chappell v. Purday (1845) 14 M&W 303, pp. 316–17; see also Chappell v. Purday (1843) 12 M&W 303. 110 Chappell (1845), pp. 317–18.

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Rethinking copyright from being acquired under the statutes, and there being no right at common law, or under the statutes, the rule for a nonsuit must be made absolute.111

At first blush there does appear to be some ambiguity about Pollock CB’s position on the common law right. At times his observations do seem to suggest that his judgment does no more than explore what rights foreign authors alone did or did not have (‘that no such right exists in a foreigner at common law’),112 rather than calling into question the existence of the right for national authors also (‘in England [copyright] is altogether governed by the statutes which have been passed to create and regulate it’).113 However, given the position he would later adopt in Jeffreys (1854), any ambiguity must be dismissed in favour of the latter interpretation; put simply, Pollock CB did not consider a common law right existed no matter who the author and regardless of either Millar or what the majority of the common law judges had said in Donaldson. Regardless of Pollock CB’s observations in Chappell (1845), on the face of it the decision did not seem to compromise the ability of aggrieved litigants to seek relief in the courts whenever the work by the foreign author was first published in England, or published simultaneously in England and abroad,114 in which cases the protection claimed seemed to fall squarely within the statute. That even these works by foreign authors should receive protection however was soon to be called into question, again by Pollock CB, in Boosey v. Purday (1849) (Boosey (1849)),115 which concerned the publication of extracts from La Sonnambula (or, The Sleepwalker), an opera by the Italian composer Vincenzo Bellini. In Milan in February 1831, Bellini had assigned his rights in the work to the Italian music publisher Giovanni Ricordi, who, while in London, subsequently sold the right to publish the work within Great Britain to Boosey.116 111

Ibid., pp. 321–22 (emphasis added). Indeed in the later case of Boozey v. Tolkien (1848) 5 CB 476, counsel for the plaintiff sought to bring an action upon the common law right, relying upon both Donaldson and Chappell (1845) as authority; ibid., p. 479. 113 Emphasis added. 114 See for example: Cocks v. Purday (1846) 2 Car&K 269, concerning Labitzky’s Der Elfin Walzer; Boosey v. Davidson (1847) The Times, 22 June 1847, concerning Bellini’s La Sonnambula; Fellowes v. Chapman (1848) The Times, 8 December 1848, concerning Wheaton’s Elements of International Law; Cocks v. Lonsdale (1849) The Times, 29 March 1849, concerning Labitzky’s La Victoria National Polka. 115 Boosey v. Purday (1849) 4 Ex Rep 145. 116 Although Boosey suggests that the work was first published by him in June 1831, the holdings of the British Library indicate that while the work did first appear in English in 1831, it was actually first published by a T. Brettell and not by Boosey (Bellini, V. (1831), The Sleepwalker, London: Brettell). It is not until 1835 that various editions of La Sonnambula published by T. Boosey & Co. begin to appear. 112

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In their pleadings, both counsel debated not just the correct interpretation of the statutes, but also the existence (or not) of the common law right – there was a clear inconsistency between the positions of Abinger CB and Pollock CB which needed resolution. Counsel for Boosey referred to the ‘doctrine of exclusive property prior to publication’, suggesting that ‘[c]opyright existed at common law, and the statute of Anne was in affirmance of, though it controlled the common law right’, referring in support of the argument to Millar and Beckford,117 but not Donaldson. ‘Such being the true foundation of copyright’ they continued ‘it follows, that the right must exist as well in a foreigner as a native’.118 The defendant’s counsel did refer to the fact that the perception that Millar settled the issue of the common law right was ‘not strictly correct’, however he dismissed the relevancy of the issue given that, in any case, ‘the common law right never applied to a foreigner’.119 Not surprisingly, Pollock CB resolved the conundrum in his own favour. Rejecting that any foreigner could have copyright in England by the common law, as a result of which neither could the plaintiff,120 he continued that a proper construction of the statutes must bear in mind that they were ‘intended for the encouragement of British talent and industry, by giving to British authors, or their assigns, a monopoly in their literary works’, and that the object of the legislature was ‘to promote the cultivation of the intellect of its own subjects, and, as the Act of Anne expressly states “to encourage learned men to compose and write useful books”’. As a result the court declared that ‘a foreigner, by sending to and first publishing his work in Great Britain, acquires no copyright’.121 Less than a year later Boosey was again contesting his copyright in La Sonnambula, this time complaining of an infringement by Jeffreys. Rolfe B, who had been sitting with Pollock CB in Boosey (1849), directed the jury that the plaintiff had no claim to an exclusive copyright in the work under the Statute of Anne; as a result they found for the defendant and Boosey appealed.122

117

Beckford, p. 620. Boosey (1849), p. 152. 119 Ibid., pp. 150–51. 120 Supra n. 115, pp. 154–56. Pollock CB opened his judgment in the following manner: ‘This Court, in the case of Chappell v. Purday, had previously intimated its opinion, that the right of the plaintiff must depend upon the statute law of this country, the laws of foreign nations having no extra-territorial power, and the plaintiff no right at common law’; ibid., p. 154. 121 Supra n. 115, pp. 155, 157. Following this decision Purday published a new edition of the contested work: Bellini, V. (1850), Beauties of Bellini: Trois amusements, pour le piano forte, sur la motifs favoris de l’opéra La Sonnambula, London: Purday. 122 Boosey v. Jeffreys (1851) 6 Ex Rep 580. 118

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The appeal, upon a writ of error, alleged that Rolfe J’s direction to the jury had been incorrect, and as a consequence the case was argued before seven of the common law judges: Campbell CJ, Patteson, Maule, Wightman, Cresswell, Erle, and Williams JJ – that is, almost all of the judges who had not been involved in Boosey (1849).123 Three days later the opinion of the court was handed down by Campbell CJ alone.124 Deciding that Rolfe B’s original direction to the jury had been incorrect and that Boosey did in fact hold the copyright in the work, Campbell CJ remarked: The first question discussed before us was, whether authors have a copyright in their works at common law. This is not essential for our determination of the present case. If it were, we are strongly inclined to agree with Lord Mansfield and the great majority of the Judges, who, in Millar v. Taylor and Donaldson v. Becket, declared themselves to be in favour of the common-law right of authors. But we rest our judgment on the statutes respecting literary property, which we clearly think entitle the plaintiff to maintain this action upon the evidence which he adduced at the trial.125

Considering the statutes, even if one accepted that the legislature ‘looked only to the enlightenment of the kingdom’, Campbell CJ rejected Pollock CB’s analysis: ‘[M]ay it not be highly for the encouragement of learning in this country, that foreigners should be induced to send their works composed abroad, either in English or in a foreign language, to be first published in London?’ He continued: ‘[W]e may without impropriety observe, that it has been the uniform policy of Parliament to facilitate the importation of foreign literature’.126 In any case, it is clear that Campbell CJ’s reading of the policy behind the legislation extended beyond this singular function of the enlightenment of the kingdom – the Acts were passed ‘for the protection of literary property’: The right which [an author] has in England is the right of acquiring, upon certain conditions, a monopoly in England for a certain number of years in the sale of his work. But this right, which, though incorporeal, is in the nature of personal property, [the author] carries along with him wherever he is, and all that is to be done fully to enjoy it he can effectually do by another. Where then can be the necessity for [the 123 The only remaining common law judge not to be involved was Jervis CJ. While his opinions on the question of copyright in the works of foreign authors would later be aired in Jeffreys (1854), he did provide some indication as to his thoughts on the existence of the common law right in Novello v. Sudlow (1852) 12 CBR 177, in suggesting that the plaintiff ‘had better assume, for the purpose of your argument, that there is no copyright at common law’; ibid., p. 181. 124 Interestingly, Campbell CJ was Lord Abinger’s son-in-law, having married Abinger’s daughter in 1821. 125 Boosey (1851), pp. 592–93. 126 Ibid., p. 594.

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author’s] crossing from Calais to Dover, before giving directions for the publication of his work, and entering it at Stationers’ Hall? The law of England will protect his property, and recognize all his rights, and give him redress for any wrong inflicted upon him within our territory, although he never set foot upon it.127

Jeffreys of course appealed, again on a writ of error, to the House of Lords; when Jeffreys (1854) was finally resolved, Rolfe B, now Lord Cranworth, was sitting in attendance as Lord Chancellor and Speaker of the House.128 From the end of the eighteenth century, through the provenance of Beckford, Montefiore, Espinasse, Maugham, Lowndes and Curtis, we can trace the emergence and rise of what I have referred to as the cult of Millar and the re-branding of Donaldson. This new consensus which enveloped Donaldson was not however unanimous; Ellenborough CJ had, at the very least, exhibited considerable scepticism as to the existence of the common law right.129 Neither was anything about this development inevitable. In this regard consider the record of Fisher v. Folds (1834) in Jones’ Exchequer Reports for Ireland,130 first published in 1838, just one year after Talfourd had embarked upon his parliamentary campaign to amend the existing law as regards literary works. The allegation in this case was that the defendant, the publishers of the Dublin Penny Journal, had pirated certain prints from the plaintiff’s work, Ireland Illustrated. The record of the defendant’s opening argument is as follows: ‘No copyright exists at common law, Beckford v. Hood, Donellan v. Beckett, and this action can only be maintained upon the statute’.131 The argument continued that what copyright protection existed in Ireland turned upon the 1814 Act, which extended to books but not to prints; that in Ireland there were no acts similar to those in England which provided protection for such prints; and that as a result the defendant’s reproduction of the engraved works did not amount to infringement.132 127

Boosey (1851), pp. 593, 595. Rolfe B was appointed Lord Chancellor in December 1852, 7 months after Campbell CJ’s decision; see Chapter 3 of this book. After Campbell CJ’s decision in Boosey (1851) work by foreign authors received the protection of the courts in both Buxton v. James (1851) 5 DeG&S 80, and Novello v. Sudlow (1852) 12 CBR 177. 129 Similarly, in Colburn v. Duncombe (1838) 9 Simons’ Rep 151–52, a case concerning the validity of an assignment of copyright in a work not yet written, counsel for the defendants argued before the court that ‘[t]here was no such thing as copyright at common law. It is a new species of property created by 8 Anne, c. 19’. 130 Fisher v. Folds (1834) 1 Jones’ Exchequer Reps 12 (Fisher). 131 Ibid., p. 13. 132 The Statute of Anne did not extend to Ireland; it was only with the passing of the Copyright Act 1801, 41 Geo. 3, c. 107, that Irish publishers were brought into line with their British counterparts. As to the Irish booksellers’ attitudes to the printing of 128

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Counsel for the plaintiff did not mount an argument based upon any notion of natural rights of ownership over the engravings. Rather he sought to bring them within the remit of the existing legislation in suggesting that they should be considered to be ‘a part of the book’, reminding the court that the English judges had given a liberal construction to the 1709 Act in extending its protection to ‘a piece of music, even on a single sheet of paper’.133 To this, counsel for the defendant replied: The statutes in force in Ireland relate to the encouragement of learning only; the fine arts are not within the meaning of that term: they are not sciences, as music is, which is the reason why a musical composition was held to be protected as a book. The letter-press and the plates in the present book are two distinct works by different authors, unconnected with each other, save so far as that they are both conversant upon the same subject. Neither can derive any protection from the other.134

Joy CB agreed. The prints in question were upon distinct sheets interleafed throughout the text, but did not constitute part of the book; therefore, there being no statute in Ireland protecting prints, they were free to be reproduced by the defendants. The semiotician or literary theorist might make much of the re-presentation of Donaldson (1774) as Donellan in the Irish report, of the need to fracture and transform the textual signifier (or if you prefer, the name of the case), in order to strip away the myth which had begun to coalesce around the decision; however, I am neither a semiotician or literary theorist. Rather, we continue with the more mundane if significant observation that while copyright in Ireland seemed to have remained more clearly a phenomenon of institutional legislative fact, in Britain its theoretical conception had drifted back towards that expounded by Lord Mansfield in Millar. By the time that Pollock CB had begun to set the cat amongst the music-publishing pigeons he was doing so upon the basis that ‘in Donaldson v. Beckett, which was an injunction founded upon the judgment in Millar v.

each others’ works throughout the eighteenth century, the marketplace operated upon an ad hoc, albeit reasonably effective, system. In essence, whichever Irish bookseller first publicly announced his intention to reprint a particular London imprint was able to do so without competition. Moreover, this agreement was understood to apply, not only to the bookseller’s initial edition, but to future editions also. In general see: Pollard, M. (1989), Dublin’s Trade in Books, 1550–1800, Oxford: Clarendon Press, pp. 32–65, 165–226; Cole, R.C. (1986), Irish Booksellers and English Writers, 1740–1800, Kent: Mansell Publishing Ltd/Humanities Press International, pp. 1–21. 133 See Bach v. Longman (1777) 2 Cowp 623. 134 Fisher, pp. 13–16.

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Taylor, the majority of the judges held that such a common-law right existed; but the majority also held that it was taken away by the statute of Anne’, without taking any cognizance of the reality of the actual decision of the House of Lords in that case.135 There are, no doubt, many reasons which explain why that drift should have occurred, but ranking high amongst these various factors must be the manner in which Donaldson had been recorded and subsequently reported such that the vote of the Lords was taken to correspond with the (mis)reported opinion of the majority of the common law judges, as well as the fact that throughout the early part of the nineteenth century there emerged no obvious reason, within the book trade at least, to contest this reading.136 To these might be added a burgeoning populace engaging with the practice of writing to an extent which greatly exceeded their predecessors’ experience,137 the recent expansion of the copyright term to incorporate (under the right circumstances) the entirety of an author’s life,138 the domestication of literature and the rise of the ‘new’ novel in the 1820s,139 and much more. A fuller exploration as to the intermingling of these various social, cultural and legal impulses, and their impact upon contemporary copyright thought, must wait for another time. Suffice to note at this point that an intellectual drift had occurred, but that it was brought to an abrupt halt with the pronouncements of Lords St Leonards and Brougham in the decision of the House of Lords in Jeffreys (1854).

135

Chappell (1845), p. 316. Supra n. 78 and accompanying text. 137 Sisken, C. (1998), The Work of Writing: Literature and Social Change in Britain 1700–1830, Baltimore, US and London, UK: John Hopkins University Press, pp. 163–70 (Siskin). 138 Copyright Act 1814, 54 Geo. 3, c. 156. 139 Siskin, supra n. 137, pp. 172–90. 136

3.

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There is a certain irony in the fact that by the time Jeffreys v. Boosey (1854) (Jeffreys)1 came to be decided before the House of Lords the question of whether, when and how foreign authors would receive copyright protection within Great Britain had largely moved out of the courtroom. In 1844 the International Copyright Act was passed to empower Her Majesty, by means of Order in Council, to provide protection to the authors of books and works of art first published in foreign jurisdictions (subject to British authors receiving reciprocal protections in those jurisdictions).2 The first of these bilateral treaties were entered into with Prussia and Saxony in 1846, followed by Brunswick, the Thuringian Union, Hanover and Oldenberg in 1847, and France in 1851.3 When the House of Lords overturned the decision of Campbell CJ et al., and reinstated Rolfe J’s original direction that the plaintiff had no exclusive copyright in the Italian composer’s opera, the work of many foreign (although not Italian) authors was being routinely protected within Britain. Indeed compared with the 10 years prior to Jeffreys, when roughly one 1 Jeffreys v. Boosey (1854) 4 HLC 815. In Richardson v. Universities of Oxford and Cambridge (1804) 3 Cooper’s Cases 564, the House of Lords had been called upon to adjudicate upon the nature and extent of the royal prerogative to grant exclusive patents for printing certain types of text. That however, had nothing to do with any question of copyright as delineated by the Statute of Anne 1709. For an earlier commentary on Jeffreys see Barnes, J.J.B. (1974), Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815–1854, London: Routledge and Kegan Paul, pp. 161–76. 2 An Act to Amend the Law Relating to International Copyright 1844, 7 & 8 Vict., c. 12. This Act amended the previous Act for Securing to Authors in Certain Cases the Benefit of International Copyright 1838, 1 & 2 Vict., c. 59, under which all attempts at international negotiation had failed; the reason for this, as Sherman and Bently point out ‘was that the protection offered by the 1838 International Copyright Act was much narrower than the equivalent provisions available in countries with which Britain hoped to develop reciprocal protection’. See Sherman, B. and Bently, L. (1999), The Making of Modern Intellectual Property Law, Cambridge: Cambridge University Press, pp. 111–15. 3 After the treaty with France came Anhalt-Dessau, Anhalt-Bernbourg, and Hamburg in 1853, Belgium in 1854, Spain in 1857, Sardinia in 1860, and Hesse Darmstadt in 1861. In general, see Briggs, W. (1906), The Law of International Copyright (with Special Sections on the Colonies and the USA), London: Stevens and Haynes; see also Sherman and Bently, supra n. 2, pp. 111–28.

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quarter of all cases heard in the courts concerned works by foreign authors,4 in the 10 years after Jeffreys there were only four such decisions, three of which involved works by American authors.5 As noted, in Jeffreys the Lords overturned Campbell CJ’s decision in holding that Ricordi, as the assignee of the copyright in a work by a foreign composer, in a foreign jurisdiction, had no rights under British law to pass onto Boosey. Had the work been first composed within England the situation might have been different, but as things stood Ricordi, and thus Boosey, had no rights in the work within the UK. Rolfe B, now sitting in the House of Lords as Lord Chancellor Cranworth and Speaker of the House, saw his original direction reinstated. However, he was not the only judge with a previous connection to this protracted litigation to be present during the appeal. As was the case in Donaldson v. Becket (1774) (Donaldson),6 the common law judges were invited to give their opinions for the consideration of the peers before the House voted on the question at hand – in this case, should the decision of Campbell CJ and the Court of Exchequer be overturned or not? Of the ten who spoke to the issue, six had previously heard arguments as to the existence or not of the plaintiff’s copyright in La Sonnambula: Pollock CJ and Parke B,7 and Maule, Wightman, Erle and Williams JJ;8 the others who spoke to the issue were Crompton and Coleridge JJ, Alderson B, and Jervis CJ.9 After the judges, three peers spoke: the Lord Chancellor 4

Boosey v. Davidson (1848) The Times, 7 June 1848; Boosey v. Purday (1848) The Times, 30 June 1848; Cocks v. Purday (1848) 2 Car&K 269; Fellowes v. Chapman (1848) The Times, 8 December 1848; Cocks v. Lonsdale (1849) The Times, 29 March 1849; Boosey v. Purday (1849) 4 Ex Rep 145; Cocks v. Purday (1850) 12 Beav 451; Jeffreys v. Boosey (1850); Murray v. Bohn (1850) The Times, 8 August 1850; Ollendorf v. Black (1850) 4 Deg&S 209; Novello v. James (1851) The Times, 25 March 1851; Boosey v. Jeffreys (1851) 6 Ex Rep 580; Buxton v. James (1851) 5 DeG&S 80; Novello v. Sudlow (1852) 12 CBR 177; Murray v. Bogue (1852) 1 Drewry 353; Avonzo v. Mudie (1854) 10 Ex 203. 5 Lover v. Davidson (1856) 1 CB (NS) 182; Boucicault v. Delafield (1863) 1 H&M 597; Low v. Routledge (1864) 10 LTR 838; the remaining case was Spiers v. Brown (1857) The Times, 11 December 1857. For a commentary on the history of American attitudes to international copyright protection at this time see Barnes, supra n. 1; see also Khan, B.Z. (2002), Intellectual Property and Economic Development: Lessons from American and European History, Study Paper for the Commission on Intellectual Property Rights, available at: www.iprcommission.org/papers/pdfs/study_papers/ sp1a_khan_study.pdf. 6 Donaldson v. Becket (1774) 4 Burr 2408. 7 In Boosey v. Purday (1849). 8 All four were present during the initial appeal in Boosey v. Jeffreys (1851). 9 Crompton J also had considerable experience with this issue having been involved, as counsel for the defendant, in Chappell v. Purday (1845) 14 M&W 303, Boosey v. Davidson (1848), and Boosey v. Purday (1849).

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himself, Lord St Leonards,10 and Lord Brougham, the three law lords who in effect carried out all the judicial business of the House at this time.11 In summarising the judges’ and peers’ response to the question at hand, Jeffreys exhibits uncanny parallels with Donaldson. Of the ten judges who provided opinions, six agreed with Campbell CJ’s ruling that the direction that Rolfe B had given to the initial jury had been incorrect (Crompton, Williams, Erle, Wightman, Maule, and Coleridge JJ). By contrast, Lords Cranworth, Brougham and St Leonards were in agreement with the judges in the minority (Jervis CJ, Pollock CB, Alderson and Parke BB ) and, once again, it was this position which the House endorsed. This is not to say, however, that the peers voted upon the issue in the same manner that they had in Donaldson. By the mid-nineteenth century the manner in which the Lords carried out its appellate jurisdiction was very different than it had been at the end of the previous century. Indeed, since 1844 the lay peers had all but ceased to vote upon appeals to the House;12 instead the Lords simply exercised its judicial capacity in accordance with the law lords’ recommendation on any given issue.13 In Jeffreys the manner in which to read and understand Donaldson was brought to the fore, counsel for Boosey arguing the familiar point that the Statute of Anne was simply supplementary to the pre-existing common law 10 Lord St Leonards (Edward Burtenshaw Sugden) had held the position of Lord Chancellor briefly in 1852. 11 Stevens cites the following statistics: ‘In 1852, of 48 days of judicial business, Brougham sat for 32 and St. Leonards for 43. 1852–53: of 80 days of business – Cranworth, 67; Brougham, 40; St. Leonards, 36; 1854: of 78 days of business – Cranworth, 78; Brougham, 71; St. Leonards, 43. In 1854–55: of 83 days of business – Cranworth, 82; Brougham, 58; St. Leonards, 48’; Stevens, R. (1979), Law and Politics: The House of Lords as a Judicial Body, 1800–1976, London: Weidenfeld and Nicolson, p. 39. 12 See Stevens, ibid., pp. 32–33. 13 In 1855 the Commons established a Select Committee to investigate the general question of Appellate Jurisdiction. For Stevens this was as a result of then widespread dissatisfaction as to the cost of appeals to the Lords, that the Court only sat during the legislative term, and the absence of a regular supply of law lords and so the need to rely upon lay peers to get through the business of the appellate Court; Stevens, supra n. 11, pp. 39–40. The Committee reported to the House in May 1856 (1 HL Sessional Papers (1856) Rep. 46) and while it was strongly in favour of reform of the current system, it did stop short of recommending the establishment of a discrete judicial committee within the House to deal with appeals. It was not until the passing of the Appellate Jurisdiction Act 1876, Vict. 39 & 40, c. 59, that a court of the House of Lords was established which performed an appellate function that was distinct from the work of the Lords as a legislative body. In general see Stevens, supra n. 11, pp. 37–76. See also: Turberville, A.S. (1913), The House of Lords in the Reign of William III, Oxford: Clarendon Press; Turberville, A.S. (1927), The House of Lords in the Eighteenth Century, Oxford: Clarendon Press; Turberville, A.S. (1958), The House of Lords in the Age of Reform, 1784–1837, London: Faber & Faber.

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copyright, and that, as ‘there [was] nothing in the terms of the statute which expressly limits the right to a British subject’, Ricordi, and his assign Boosey, should by law be protected. Counsel for Jeffreys however countered that ‘the doctrine in the case of Donaldson’ was that ‘no copyright in books existed at common law’, and that the Act created new rights rather than operating to circumscribe a common law right.14 Of those judges who would have held in the plaintiff’s favour only Erle, Wightman and Coleridge JJ spoke directly to the issue of the common law right and the significance of the Donaldson decision.15 Wightman J recounted that a majority of the judges in Donaldson had decided that ‘by the common law, an author of any literary composition had the sole right of first printing and publishing the same for sale’, that this right was not lost upon publication of the work, but that ‘after publication, the right and the remedy for any infringement were regulated by the statute’.16 Thus he concluded, any author, including any alien, was possessed of the right to publish according to the common law of England.17 Similarly, Coleridge J found Donaldson to be illustrative of the fact that ‘copyright for the author … exists by the common law, [until] taken away by the Statute of Anne, or some succeeding statute’.18 Erle J, however, was slightly more guarded in his interpretation of the case. Donaldson, he commented, had concluded that ‘the statute had restricted the right to the terms of years therein mentioned’; as to the question of copyright at common law, he felt that Donaldson had left the point ‘undecided’, but nevertheless continued that numerous other authorities ‘decidedly preponderate in favour of copyright at common law’.19 Providing a neat counterpoint to the comments of Erle, Wightman and Coleridge JJ, of those judges who spoke in favour of the defendant, three spoke expressly against the existence of the right.20 Jervis CJ considered it ‘not necessary to decide in this case whether a British author had copyright at common law’ but did concede that ‘the great majority of Judges … in Millar … and Donaldson … declared themselves to be in favour’ of the right. He continued, however: 14

Jeffreys, pp. 821–24. Crompton J commented that it was not ‘necessary to enter into the muchdisputed question, as to whether the statute of Anne created a new right, or was an abridgment of an old one’; ibid., p. 846. Neither Williams nor Maule JJ made any explicit reference to Donaldson. 16 Jeffreys, pp. 884–85. 17 Wightman J observed that ‘[t]he right of property is merely personal, and an alien friend, by the common law, has as much capacity to acquire, possess, and enjoy such personal right or property as a natural-born British subject’; ibid., p. 885. 18 Jeffreys, p. 903. 19 Ibid., p. 872. 20 Parke B, Pollock CB and Jervis CJ; Alderson B did not consider it ‘material for the present case’ to decide upon the common law issue; Jeffreys, p. 912. 15

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Rethinking copyright It is with extreme diffidence, therefore, that I express an opinion upon the subject, and declare that, in my judgment, a British author has not copyright at common law. I see nothing to distinguish the case of the author, as owner, of a book or manuscript from that of the inventor or owner of a complicated and highly useful machine.21

Not surprisingly, neither Pollock CB nor Parke B deviated from their previous reading of the law in Boosey v. Purday (1849). While Parke B did not believe it ‘necessary to give an opinion’ he was, nevertheless, of the mind that ‘the rational view of the subject is most clearly against the existence of this right’, proceeding that ‘the weight of authority, taking into consideration the opinions expressed since the decision of the great cases of Millar … and Donaldson … is likewise against it’.22 In this regard he drew upon the opinion of Lord Ellenborough in University of Cambridge v. Bryer (1812)23 and the slightly more recent decision of the US Supreme Court in Wheaton v. Peters (1834).24 Similarly, Pollock CB observed ‘that the weight of mere authority, including the eminent persons who have expressed an opinion on the subject since the case of Millar v. Taylor was argued, is very much against the doctrine of a copyright existing at Common Law’.25 The judges had delivered their opinions for the consideration of the House on 29 June 1854. When Lords Cranworth, Brougham and St Leonards spoke to the issue, they did so over a month later, on 1 August. Of these three only Lord Brougham directly addressed the decision in Donaldson. He began as follows: In coming to a decision on this case, it is not necessary to assume that the muchvexed question of common-law right to literary property has been disposed of either way. Yet as a strong inclination of opinion has been manifested upon it, as that leaning seems to pervade and influence some of the reasons of the learned Judges, and as the determination of it throws a useful light upon the subject now before us, I am unwilling to shrink away from expressing my opinion on the question, the more especially as I am aware that it does not coincide with the impressions which generally prevail, at least, out of the profession.26

21

Ibid., pp. 944–45. Jeffreys, p. 920. 23 University of Cambridge v. Bryer (1812) 16 East’s 317 (University of Cambridge); see Chapter 2, n. 34 and accompanying text. 24 Wheaton v. Peters (1834) 33 US 591. 25 Jeffreys, p. 935. 26 Ibid., p. 961 (emphasis added). It is tempting to presume that Lord Brougham, in referring to the prevailing opinion coming ‘out of the profession’, was referring at least in part to the substance of the opinions being disseminated in such texts as those by: Montefiore, J. (1802), The Law of Copyright, London; Espinasse, I. (1824), A Treatise on the Law of Actions on Statutes … and on the Statutes Respecting Copyright, London; Maugham, R. (1828), A Treatise on the Laws of Literary Property, London; 22

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As for Donaldson in particular, Lord Brougham noted that the House of Lords at that time had reversed the decree under appeal. However, like Erle J before him, he continued that ‘upon the general question of literary property at common law no judgment whatever was pronounced’.27 Leaving Donaldson to one side, as to the existence of the common law right in the abstract, if Cranworth LC remained the most tentative of the peers upon the issue,28 Brougham was the most strident in his rejection of the notion. Given Brougham’s earlier parliamentary opposition to Sergeant Talfourd’s efforts between 1837 and 1842 to reform the law of copyright (which included the proposal to provide a 60-year post-mortem term of protection for authors),29 and the position he had previously espoused in Guichard v. Mori (1831),30 this should not surprise. Castigating those who argued in support of the right as relying upon ‘somewhat speculative, perhaps enthusiastic, views’ and as having been ‘led away from strict, and especially from legal, reasoning into rather declamatory courses’, he continued that an author: [H]as the undisputed right to his manuscript; he may withhold or he may communicate it, and, communicating, he may limit the number of persons to whom it is imparted, and impose such restrictions as he pleases upon their use of it. … But if he makes his composition public, can he retain the exclusive right which he had before? … Has he such a property in his composition as extends universally and en[d]ures perpetually, the property continuing in him wheresoever and whensoever that composition may be found to exist? In other words, can his thoughts, or the results of his mental labour, or the produce of his genius, be considered as something fixed and defined, which belongs to him exclusively at all times and in all places?31

Lord Brougham considered that the author’s (or indeed the composer’s) thoughts could not be so defined:

Lowndes, J.J. (1840), An Historical Sketch of the Law of Copyright, London; Burke, P. (1842), A Treatise on the Law of Copyright in Literature, The Drama, Music, Engraving and Sculpture, London: Richards; and Curtis, G.T. (1847), A Treatise on the Law of Copyright, London, UK and Boston, US: Maxwell & Son and Little and Brown; see Chapter 2 of this book. 27 Jeffreys, p. 961. 28 The Lord Chancellor observed that copyright ‘if not the creature, as I believe it to be, of our statute law, is now entirely regulated by it’; ibid., p. 954. 29 On the various debates surrounding the passage of the 1842 Act see Seville, C. (1999), Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act, Cambridge: Cambridge University Press. On Brougham’s position in these debates see, in particular, Jeffreys, pp. 51–59. 30 Guichard v. Mori (1831) 2 Coopers 216; see Chapter 2, n. 88 and accompanying text. 31 Jeffreys, p. 962.

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Rethinking copyright That which was before incapable of being dealt with as property by the common law, became clothed by the lawgiver’s acts with the qualities of property; and thus the same authority of the law giver, but exercised righteously and wisely for a legitimate and beneficent purpose, gave to the produce of literary labour that protection which the common law refused it, ignorant of its existence; and this protection is, therefore, in my opinion, the mere creature of legislative enactment.32

As for Lord St Leonards he appears, at first glance, implicitly to concede the existence of the common law right, beginning as he does with the admission that ‘no common law right exists after publication’ (the implication being that before publication a common law right did exist). However his observation has to be read in the context of the distinction that he, and the other Lords,33 had drawn between an author’s ‘right to his manuscript and to any copy which he may choose to make of it, as his property, just like any other personal chattel’ and ‘the right to multiply copies to the exclusion of every other person’. ‘Nothing’ he considered ‘can be more distinct than these two things’. The property in an author’s manuscript, as an item of tangible personal property, was one thing; the claim to copyright on the other hand was ‘a totally different thing’.34 Lord St Leonards, in observing that no common law right exists after publication was referring to the existence of a common law right of property in the manuscript, the paper, and not a common law copyright residing with the author. Parke B had earlier expounded upon this distinction in similar terms, observing that ‘[t]he term “copyright” may be understood in two different senses’; he continued: The author of a literary composition which he commits to paper belonging to himself, has an undoubted right at common law to the piece of paper on which his composition is written … This sense of the word “copyright” has nothing to do with the present question, though, in the course of the argument, it has sometimes been used in that sense, when it was convenient to do so, particularly when it was contended that a copyright existed at common law. The other sense of that word is, the exclusive right of multiplying copies: the right of preventing all others from copying, by printing or otherwise, a literary work which the author has published. This must be carefully distinguished from the other sense of the word, and is alone 32

Ibid., p. 968. Like Parke B, Brougham made reference to Lord Ellenborough’s opinion as to the common law right in University of Cambridge (1812); again this should not surprise given that Brougham had been counsel for the defendant in that case. 33 See for example Lord Chancellor Cranworth’s observation that ‘it is proper to bear in mind that the right now in question … is not the right to publish, or to abstain from publishing a work not yet published at all, but the exclusive right of multiplying copies of a work already published, and first published by [Boosey] in this country’; Jeffreys, p. 954. Similarly, Lord Brougham noted that ‘[t]he right of the author before publication we may take to be unquestioned, and we may even assume that it never was, when accurately defined, denied’; ibid., p. 962 (emphasis added). 34 Jeffreys, pp. 977–79.

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to be looked at in the discussion of this case, and it would tend to keep our ideas clear in determining the question, if, instead of copyright, it was called the exclusive right of printing a published work, that being the ordinary mode of multiplying copies.35

After the law lords had spoken, the question for the House was whether the Lord Chancellor’s original direction to the jury had been given in error.36 All three law lords considered that it had not been and recommended that the appellate decision of the Court of Exchequer be reversed; the House duly complied. When Charles Clark produced his Digest of House of Lords Reports in 1866, he noted in the Index that ‘[c]opyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect’, and that ‘[p]er Lords Brougham and St. Leonards: Copyright did not exist at common law. It is the creature of statute’.37 Whatever ambiguities surrounded the decision in Donaldson, the position of the Lords in general, and of the law lords in particular, in Jeffreys is much more readily ascertainable. Indeed, when a report of the decision appeared in the Law Magazine in February 1855, its writer noted that ‘[t]he question whether copyright existed at common law has long been regarded as a moot point by the Bench, and also by the profession generally; and it is therefore satisfactory to find a decision upon it, pronounced by our highest Court of judicature’. He continued: ‘The three law lords, the Lord Chancellor, Lord Brougham, and Lord St. Leonards, were unanimous in deciding that no copyright did exist at common law, and thus have terminated this important and long-contested question’.38 Further testament to this, were it needed, lies in the almost immediate and overtly critical response that the decision provoked from one contemporary legal commentator. Less than 2 months after the decision, in September 1854, Montague Leverson published his treatise entitled Copyright and Patents, or, Property in Thought.39 Taking a cue from Lord St Leonards dictum, he 35

Ibid., pp. 919–20. Of the 51 peers who voted to overturn the decision of the lower court, and reinstate the original direction of the Lord Chancellor, only 10 were present throughout all of the proceedings; amongst these 10 were, of course, Lords Cranworth, Brougham and St Leonards. The remaining seven were Lords Somerhill, Monteagle, Sundridge, Newcastle, Derby, Shaftesbury and Sydney. Of the other 41 peers, only 33 had been present to hear the opinion of the common law judges on 29 June. 37 Clark, C. (1866), Digest of House of Lords Reports, 1814–1866, London: Butterworths, p. 63. 38 Anon. (1855), ‘Notes of Leading Cases’, Law Magazine, 53, pp. 368, 371–73. 39 Leverson, M.R. (1854), Copyright and Patents, or, Property in Thought, London: Wildy & Sons. 36

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asserted that ‘[c]opyright is not the right of multiplying copies, but the right to the produce of a man’s labour, often of a kind the most prolific of all labour of benefit to society’. Rounding on the decision in Jeffreys he grieved that the Lords might have ‘made the law’ in accordance with ‘what should be the rights of property’. Instead, Leverson bemoaned, ‘[y]ou have made it to deny the labourer the produce of his labour’.40 Leverson’s lament was for the fall of the Lockean literary archetype. And so, by the mid-nineteenth century, with Donaldson and Jeffreys, the House of Lords had twice handed down decisions that should have lain to rest any notion that an author had, at common law, a property in his work akin to the statutory protection first established by the Statute of Anne. How then to account for the fact that, when the eminent copyright practitioner and scholar, E.J. Macgillivray, produced the second of his eight volume collection of Copyright Cases in 1911, no less than seven of the cases reported were indexed as relating to the ‘[c]ommon law right’?41 Alternatively, how to understand the commentary of Cozens-Hardy MR in Monckton v. The Gramophone Company Limited (1912) to the effect that, prior to the 1911 Act an author had indeed a right in his ‘unpublished literary productions’, which right was based ‘upon property’, and which property was ‘incorporeal’? Furthermore, this, Cozens-Hardy MR considered, was based upon the ‘weighty authority’ of Donaldson itself. Moreover, what about the fact that the legislature itself considered it necessary to make specific provision to ensure that the perpetual copyright at common law in unpublished manuscripts was brought within the terms of the Copyright Act 1911? After Leverson’s tract, the next three texts dedicated specifically to the law of copyright were published in 1863 in the wake of the International Exhibition and the passing of the Copyright Act 1862: Chappell and Shoard’s A HandyBook of the Law of Copyright,42 Charles Palmer Phillips’ The Law of 40

Ibid., pp. 12 and 19. The cases were: Fraser v. Edwards (1905) 2 MCC 10; The Exchange Telegraph Co. v. Howard (1906) 22 TLR 375; MacMillan v. Dent [1907] 1 Ch 107; Philip v. Pennell (1907) 2 MCC 91; Mansell v. Valley Printing Co. [1908] 2 Ch 441; Cabburn v. Lloyds (Ltd) (1909) 2 MCC 215; Monckton v. The Gramophone Company Ltd (1911–12) 28 TLR 205. Macgillivray also included four American decisions concerning common law copyright: Caliga v. Inter-Ocean Newspaper Co. (1907); Savage v. Hoffman (1908); Frohman v. Ferris (1909); Stern v. Jerome H Remick (1910). For full references see Macgillivray’s (1911), Copyright Cases, 2, London: Publishers’ Association. 42 Chappell, F.P. and Shoard, J. (1863), A Handy-Book of the Law of Copyright, London: Henry Sweet. 41

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Copyright in Works of Literature and Art,43 and E.M. Underdown’s The Law of Art Copyright.44 In the first, the authors were somewhat circumspect in their opinion as to the existence or not of the common law right: ‘It seems clear that, since the case of Donaldson v Becket in the House of Lords, the property of authors in their published productions depends entirely upon statutory enactment, and that no common law privilege remains, even supposing that it ever existed’.45 Phillips, on the other hand, made explicit the distinction that had been drawn out in Jeffreys: The term copyright, in its popular, if not its legal acceptation, includes two rights, which differ widely in their origin, nature and extent. The frequent application of the term to each of them indiscriminately seems to have tended to an occasional inaccuracy of language in reference to one or other of them, and perhaps to misapprehension of both. They are, it must always be remembered, distinct and several rights. Copyright-before-publication is the more ancient of the two. It is the exclusive privilege of first publishing any original and material product of intellectual labour. Its basis is property; a violation of it is an invasion of property, and it depends entirely upon the Common Law; the privilege is simply a right of user, incidental to the property exclusively vested in the absolute and lawful possessor of the material product.46

First publishing in this sense is more akin to the civil law concept of droit de divulgation, albeit grounded in the lawful ownership of the manuscript itself. It did not carry any of the rights of economic exploitation which the copyright legislation confers. 43

Phillips, C.P. (1863), The Law of Copyright in Works of Literature and Art and in the Application of Designs, London. 44 Underdown, E.M. (1863), The Law of Art Copyright, London: Crockford. 45 Chappell and Shoard, supra n. 42, p. 1 (emphasis added). Three years before the publication of the work by both Chappell and Shoard, and that by Phillips, James Fraser had published a text on patent and copyright law (but primarily patent law) in which he evidenced the same circumspection in commenting that in Donaldson ‘it was settled that, if the right contended for ever did exist, it was abridged by the statute of Anne’; Fraser, J. (1860), A Handy-Book of Patent and Copyright Law, London: Samson Low, p. 181 (emphasis added). See also the later commentary of John Shortt when he observed that, as to whether any common law right survived publication, ‘widely different views have been entertained by some of our ablest lawyers living at different times’. Shortt provided a brief synopsis of these various opinions from the mid-eighteenth century through to the present time and continued that ‘[o]n whatever basis of natural right the title of an author to the sole property in the products of his mental facilities may rest in the last resort, it is now clear that copyright after publication … is a territorial monopoly, the creation of our municipal law’, at which point he inserts a footnote with the following: ‘In the elaborate opinions given by the judges to the House of Lords in this case the arguments for and against the existence of copyright at common law are fully stated’; Shortt, J. (1871), The Law Relating to Works of Literature and Art, London: Cox, p. 65. 46 Phillips, supra n. 43, pp. 1–2 (emphasis added).

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The other type of copyright, ‘copyright-after-publication’, was both entirely distinct from the first and entirely dependent upon the legislation. Phillips’ touchstone in understanding the nature of the author’s right in his manuscript prior to publication was neither Blackstone nor Mansfield but ‘the law lords in Jeffreys v. Boosey, and … some of the judges in Millar v. Taylor’. In fact he relied upon only one of the judges from Millar in this regard – the dissenting Yates J – whom he cited at length: [I]deas are indeed free but while the author confines them to his study; they are like birds in a cage, which none but he can have a right to let fly, for till he thinks proper to emancipate them they are under his own dominion. It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends: in that state a manuscript is in every sense his peculiar property, and no man can take it from him, or make any use of it which he has not authorised, without being guilty of a violation of his property.47

Once published then, in the absence of statutory protections, the author could exert no further control over his work. It was in this same sense that Perrott B in Donaldson had observed that: An author certainly had a right to his manuscript; he might line his trunk with it, or he might print it. After publication, any man might do the same ... if a manuscript was surreptitiously obtained, an action at common law would certainly lie for the corporeal part of it, the paper. So if a friend to whom it is lent, or a person who found it, multiplied copies, having surrendered the original manuscript, he had surrendered all that the author had any common law right to claim.48

Lord Brougham, put it slightly differently in Jeffreys when he stated that ‘the right of the author before publication we may take to be unquestioned, and we may even assume that it never was, when accurately defined, denied’. What was this right when accurately defined? The author had the freedom to ‘withhold’ or ‘communicate’ his work, and in communicating it ‘he may limit the number of persons to whom it is imparted, and impose such restrictions as he pleases upon their use of it’.49 However, should the work be made public, what rights an author had in a work could only ever be conferred by the legislature. As for Underdown, although his work was more specifically directed towards the arts, he too acknowledged the significance of the opinions of the law lords in Jeffreys concerning the common law right in literary works, 47

Ibid., pp. 2–3. Cobbett, W. (1813), Parliamentary History from the Norman Conquest, in 1066, to the Year 1803 (44 vols), 17, p. 983. 49 Jeffreys, pp. 962 (emphasis added). 48

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although he was less than enthusiastic about their decision. Indeed, having acknowledged that ‘it was decided by the House of Lords that no copyright at common law exists’, he continued: But the weight of that opinion is much lessened when we remember the admirable judgment of Mr. Justice Erle, who, in the minority, sustained an opposite opinion, viz., that authors have a property at common law as well as before the statute as after it, and that copyright is not a privilege but a property. I would refer all who might be interested in an abstract question of law to read this remarkable judgment.50

Certainly then, with Phillips and Underdown, we get an explicit recognition of the fact that the Lords in Jeffreys denied the existence of the common law right,51 and in Phillips we find the first author of a copyright treatise to accurately capture the impact of Donaldson upon Millar, albeit through the lens of Jeffreys. However, Phillips’ analysis was to be short-lived, and Underdown’s direction to the dicta of Erle J would prove in time to be uncannily prescient. Montague Leverson need not have worried, for, in spite of Phillips’ warning that property rights in a physical manuscript and the statutory right to exclusively print a work after first publication should always be remembered as distinct and separate rights, the process of conflating the two began within a generation.

If the question of the copyright in foreign works allowed a platform for pontificating upon the common law right prior to Jeffreys, afterwards a number of disputes concerning theatrical productions provided the debate with a new stage upon which competing conceptions might be cast. In Shepherd v. Conquest (1856) (Shepherd) the plaintiffs had employed an author, Courtney, to visit Paris to see what French plays might be adapted for the London stage.52 50

Underdown, supra n. 44, p. 151. See also the comments by an unnamed author in the Law Magazine and Review in 1869 that in Jeffreys the House laid down ‘that copyright is a monopoly bounded and regulated by the Copyright Act, and not a property derived from or carved out of a general right of property’, and then later that in Jeffreys ‘[t]he highest court of appeal then decided that copyright is the creature of municipal law, and partakes of the nature of a monopoly granted by statute for a limited period’; and this despite the author’s own opinion that copyright should be considered a ‘sacred indefensible right’; Anon. (1869), ‘Anglo-American Copyright’, Law Magazine and Review, 26, pp. 49, 55–58. 52 Shepherd v. Conquest (1856) 17 CB 427. That these works would not fall foul of the Order in Council of 1851 extending copyright protections to works by French authors was assured by the fact that works in translation were considered to be new works, and not a copy of the original play. The process of translating an existing work was perceived as involving considerable ‘intellectual 51

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Courtney adapted a Parisian farce, renaming it Old Joe and Young Joe, and agreed with the plaintiffs that they could have the sole right of representing the play in London. A year later he sold the copyright in the work to the defendant who produced the play at his own theatre, the Grecian Saloon. The main issue for the court to decide concerned the nature and effect of the employeremployee relationship between the plaintiffs and Courtney. The court decided in the defendant’s favour, holding that the plaintiffs could not be considered to be the authors of the work and, as the agreement as to the right to perform the work was not in writing (as was required by the Dramatic Copyright Act 1833),53 that neither could they be considered to be the assignees of the work. The relationship of employment per se made no difference; the plaintiffs had nothing upon which to hang their claim. The plaintiffs had tried to rely upon a series of cases in which it had been held that, whenever someone is hired for the express purpose of developing an invention, the resultant work belongs to and is patentable by the employer.54 To this, however, Jervis CJ replied: [That] literary productions stand upon a different and higher ground from that occupied by mechanical inventions; that the intention of the legislature in the enactments relating to copyright was, to elevate and protect literary men; that such an intention could only be effectuated by holding that the actual composer of the work was the author and proprietor of the copyright, and that no relationship existing between him and an employer who took no intellectual part in the production of the work, could without an assignment in writing vest the proprietorship of it in the latter. To this might be added, as to literary property and patents for inventions, that they are both creatures of the statutes …55

While the substance of Jervis CJ’s latter observation comes as no surprise, it is perhaps curious that he should make the point at all; certainly it was unnecessary within the context of the case before him. In this regard, it is tempting to think that Jervis CJ merely sought to underline the position which had been adopted in Jeffreys 2 years before, perhaps all the more so given that sitting with him on the bench was Williams J.56 Williams J was also involved in the next pertinent decision, that of Reade v. Conquest (1861) (Reade). However, now he was sitting alongside the newly appointed Chief Justice of the Court of Common Pleas – Erle CJ.57 Reade, an labour’, impressing a ‘new character’ upon the original work; see Jervis CJ, ibid., p. 444. 53 Dramatic Copyright Act 1833, 3 & 4 Will. 4, c. 15. 54 Bloxam v. Elsee (1827) 6 B&C 169; Allen v. Rawson (1845) 1 CB 551. 55 Shepherd, p. 444 (emphasis added). 56 Ibid., p. 435. 57 Reade v. Conquest (1861) 9 CB (NS) 755; Erle J was elevated to the position of Chief Justice of the Common Pleas in June 1859.

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author, had published a novel, It is Never Too Late to Mend, upon which the defendant based a play performed once again in the Grecian Saloon. As the 1833 Act only extended protection to any ‘tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment’,58 the plaintiff sought to rely upon his common law right of property in the novel itself. Lush, counsel for the defendant, seemingly taking a cue from Jervis CJ in Shepherd, opened with the observation that ‘[c]opyright, whatever it may formerly have been, is now only the creature of statute’, at which point Erle CJ interjected: ‘Two noble and learned lords gave elaborate opinions to that effect in Jeffreys v. Boosey; but that was not the adjudication of the House’.59 Again Lush pressed: ‘It is too late now to say that copyright existed at common law’; again Erle CJ observed: ‘In Donaldson v. Beckett eight of the judges (against four) thought there was’.60 In any case, Lush continued: The complaint is, that the defendant has dramatized the story and caused it to be represented at his theatre. There is no authority for saying that this was any offence at common law, or any invasion of the plaintiff’s common-law right: and it is clear that the representing on the stage is no infringement of the plaintiff’s right under the statute: Coleman v. Wathen.61

On this point at least the Court was in agreement. Williams J delivering the judgment, commented as follows: [I]t is not necessary, in order to decide the present case, to consider the question upon which so much learning has been exhausted, viz. whether anterior to the statute of Anne there existed a copyright at common law in published books more extensive in its nature and duration than the right conferred or expressed by that statute. There can, we think, be no doubt that the weight of authority in the time of Lord Mansfield was in favour of the existence of such a right; although the doctrine has found less favour in modern times: but the continued existence of any such right after the passing of the statute of Anne was distinctly denied by the majority of judges in the celebrated case of Donaldson v. Beckett: and the case itself expressly decides that no such right exists after the expiration of the period prescribed by the act. The question, therefore, seems narrowed to this, namely, whether the statute of Anne, having confessedly put an end to such a right (if it ever existed) after the period it prescribes, has yet preserved it during the currency of such period. That it has done so is a proposition which we think it difficult for the plaintiff to maintain. That a common-law right of action attaches upon an invasion of the copyright created by statute, was decided in Beckford v. Hood … But we are not aware of any case, since Millar v. Taylor was over-ruled by the House of Lords, which decides or 58 59 60 61

Section 1. Reade, p. 757. Ibid., p. 763. Reade, p. 764.

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Reade was followed by Coyne v. Maxwell (1865), in which the plaintiff, the author of the dramatic work The Woman in Red, complained not of an unlawful performance of his work by the defendant but of its publication.63 For this the plaintiff relied upon the premise that previous authorised performances of the play did not amount to publication, and that as the work remained unpublished, he was entitled to the protection of the court as to his property at common law. Cockburn CJ, sitting with Crompton,64 Blackburn and Shee JJ, asked counsel for Coyne to ‘cite cases in which the right of property in unpublished works had been recognised at common law’. The plaintiff’s counsel duly obliged, referring to a number of cases including Jeffreys ‘where the whole question was most elaborately discussed by the judges and law lords’; referring to both Lord Chief Justice Erle and Lord St Leonards, they concluded that the cases established the doctrine ‘that so long as a person had not published a work of literature or art he had a common law property in it quite independently of copyright by statute’.65 Cockburn CJ, after hearing the defendant’s arguments against the right, considered that as the ‘main question’ of the existence or not of the common law right ‘was one in which the decision might be uncertain, it would be better to state the facts in the form of a special case, and thus raise the question for the opinion of the Court’.66 The report of the decision continues that ‘[i]n the result it was so arranged’; however, the ‘special case’ appears never to have been heard.

Whatever Jeffreys may have contributed towards the evident uncertainty as to the existence of the common law right in the observations from both Williams J and Cockburn CJ, there were, as was the case with Eyre CJ in Reade, other judicial pronouncements from this period which appeared to take its existence as a matter of fact. In Boucicault v. Delafield (1863), in the same year in which 62

Ibid., pp. 766–7. Coyne v. Maxwell (1865) The Times, 7 and 10 June 1865 (Coyne). 64 Crompton J, of course, had been involved in Jeffreys. 65 Coyne, 7 June 1865. In making out his argument, counsel for the plaintiff paraphrased a passage from Erle J in Jeffreys: ‘If an author chooses to keep his writings private, he has a right of property analogous to that of property in personalty; he may restrain publication, he may require back any copies. If he even chooses to impart his manuscript to others without any liberty of general publication, he still retains these rights of property. He may lend it to others with or without the liberty of transcription, and if with the liberty of transcription, he may limit the exercise of that right and the number of copies to be made’; see Jeffreys, pp. 867–68. 66 Coyne, 10 June 1865. 63

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Phillips published his Law of Copyright, Wood VC reminded counsel for the defendant that in Donaldson ‘the Judges were 8 to 3 in favour of the existence of the common law right, and 6 to 5 in favour of its being taken away by the statute of Anne’.67 Similarly in Platt v. Walter (1867), concerning whether or not copyright might subsist in newspaper reports, the then Lord Chancellor Chelmsford, finding it difficult to comprehend ‘the meaning of the word “copyright” in its application to a newspaper’, nevertheless observed that copyright was a protection ‘given by common and statute law’.68 Before the decade was out however Jeffreys would be revisited once again in the House of Lords with the case of Routledge v. Low (1868) (Routledge).69 The interest in the Routledge litigation lies not with any commentary upon the common law right per se (indeed it is the absence of such commentary which is of note), but rather in the impact it seems to have had upon the currency and relevancy of the determination in Jeffreys at that time, as well as in the manner in which the Lords addressed the nature of copyright in general. In brief, Low & Co. Booksellers, the plaintiffs, had purchased the copyright in Haunted Hearts, a novel by Maria Cummins, an American author. In an attempt to secure copyright protection in Britain, Cummins travelled to Montreal – where she resided for 2 months in 1864 while she assigned the work to the plaintiffs, and they subsequently registered and published it in London. The argument on the plaintiff’s behalf was that the provisions of the Copyright Act 1842 extended protection to any author resident in the British dominions at the time of first publication in England. Kindersley VC allowed the injunction, which decree was upheld on appeal by Turner and Knight Bruce LJJ.70 When Routledge appealed again, all of the Lords were in

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Boucicault v. Delafield (1863) 1 H&M 597, p. 598. Platt v. Walter (1867) 17 LTR 157, p. 159. 69 Routledge v. Low (1868) 3 LTR 100. For a contemporary commentary on Routledge see Anon., ‘Anglo-American Copyright’, supra n. 51. 70 Low v. Routledge (1864) 10 LTR 838 (Low (1864)); Low v. Routledge (1865) 1 LR (Ch App) 42 (Low (1865)). In both the High Court and the Court of Appeal it was decided that the protections of the 1842 Act extended to the author by virtue of her residency in Canada at the time of publication within the UK. However, in the High Court, Kindersley VC also observed as follows: ‘If it were an open question whether it was expedient or beneficial that the law should be that an alien, whether resident here or not, by first publishing a work here, acquired a copyright, certainly strong arguments might be adduced in support of the affirmative of that proposition. Every copyright [has] for its end and object the encouragement of learning by holding out to men of learning and genius advantages to arise from composition and publication, the consideration being a monopoly, although a limited one, and the public feeling that, although such monopoly was per se an evil, it might be compensated for by the inducement held out to such men to produce works that should be useful. That being 68

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agreement that the appeal should be dismissed and the decree affirmed, however not all were in agreement as to why. Lord Chancellor Cairns gave the first judgment. Jeffreys, he commented, was decided not upon the 1842 Act but upon the Statute of Anne, the ratio decendi of which, in his opinion, ‘proceeded mainly, if not exclusively, on the wording of the preamble … and on a consideration of the general character and scope of the Legislature in Great Britain at that period’. That is, the Act was passed to benefit British subjects only. Britain, however, had sired an Empire, and the aspirations of the 1842 Act were much broader in scope given that it sought to ‘afford greater encouragement to the production of literary works of lasting benefit to the world’. Who should receive the protection of the Act? The Lord Chancellor continued, in a passage which deserves to be set out in full: In my opinion the protection is given to every author who publishes in the United Kingdom, wheresoever that author may be resident or of whatever state he may be the subject. The intention of the Act is to obtain a benefit for the people of this country by the publication to them of works of learning, of utility, of amusement. The benefit is obtained in the opinion of the Legislature by offering a certain amount of protection to the author, but it is a benefit given, not for the sake of the author of the work, but for the sake of those to whom the work is communicated. The aim of the Legislature is to increase the common stock of the literature of the country, and if that stock can be increased by the publication for the first time here of a new and valuable work composed by an alien, who never has been in the country, I see nothing in the wording of the Act which prevents, nothing in the policy of the Act which should prevent, and everything in the professed object of the Act, and in its wide and general provisions, which should entitle, such a person to the protection of the Act in return and compensation for the addition he has made to the literature of the country. I am glad to be able to entertain no doubt that a construction of the Act, so consistent with a wise and liberal policy, is the proper construction to be placed upon it.71

Lord Westbury was of the same mind, considering the Act to be ‘auxiliary to the advancement of learning in this country’ in providing ‘an invitation to men of learning in every country to make the United Kingdom the place of first publication of their works’; ‘[t]he benefit of the foreign author’ he continued ‘is incidental only to the benefit of the British public’.72 the modus operandi in every Copyright Act, if it were an open question whether it would tend to the object which the Acts had in view that a foreign author not resident here should be encouraged to publish works in this country, it would seem that, if there were two works of equal value published simultaneously, one by a British subject here, the other by a foreigner living abroad, if it would be expedient to accord to a British subject such benefit, it would be equally expedient that a foreigner should have the like consideration’; Low (1864), pp. 838–39. 71 Routledge, p. 876. 72 Ibid.

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In contrast, two of the Lords gave the Copyright Act 1842 a much narrower reading: Lord Chelmsford and Lord Cranworth. Both decided that to benefit under the legislation the author whose work was first published within the UK had themselves to be resident within the area ‘over which the copyright extended and to which it was limited’; in this case, either within the UK or its dominions.73 That Cummins was resident in Montreal ensured her protection under the statute. As to the reading which the Lord Chancellor and Lord Westbury wished to place upon the Act, Lord Chelmsford could not help but entertain a doubt as to whether it was entirely ‘well founded’. Nevertheless, he continued, ‘it is unnecessary to consider this question more fully with a view to the determination of the present case’.74 For Lord Cranworth, noting the ‘decision of your Lordships’ house in Jeffreys v. Boosey, according to the opinions of all the noble Lords who advised the House on that occasion’, not surprisingly it was: [D]ifficult to concur with the [Lord Chancellor] in the opinion that the present statute extends its protection to foreigners without saying that the case of Jeffreys v. Boosey is not good law, a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of Jeffreys.75

Instead, twice stressing that he was not in agreement with the Lord Chancellor upon the broader issue, he sought ‘to keep my judgment open on the point’ should the issue arise for decision in the House.76 The fifth member of the court, Lord Colonsay, remained firmly on the fence as to the ‘more liberal view of the statute’ which had been suggested: ‘[A]fter the difference of opinion that I have heard expressed with regard to it, not having considered … that a judgment upon that point was necessary to the solution of the question now before the House, I respectfully beg to abstain from expressing any opinion upon it’.77 However, when the issue arose again just over 2 months later in Low v. Ward (1868), it was the narrower reading which was to be preferred.78 In this subsequent case the author who travelled to Montreal before publishing his book (Guardian Angel) in Britain was none 73

Routledge, per Lord Chelmsford, p. 877. Ibid., p. 878. 75 Routledge, p. 876 (emphasis added). 76 Ibid., p. 877. 77 Routledge, p. 879. Nevertheless, he did continue: ‘[A]lthough I can easily see that there is very little benefit to be gained to British authors by refusing to extend the protection of copyright in the manner suggested, because nothing can be more shadowy than a distinction depending upon the circumstances of a few hours’ or a few days’ residence within some part of the widely-extended dominions of Her Majesty’; ibid. 78 Low v. Ward (1868) 6 LR (Eq) 415 (Low (1868)). 74

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other than Oliver Wendell Holmes. Giffard VC commented: ‘I have not the slightest doubt about this case. It is settled by Low v. Routledge that an American who chooses to go across the frontier into Canada, and then published his work in the United Kingdom, acquires exactly the same rights as if he had been a British subject’.79 Routledge then had two significant effects. In the first place it sent out a message that Jeffreys was pertinent to litigation concerning only those literary works first published before the passing of the 1842 Act. In this respect, as more and more time passed, and the copyright in works from this earlier period began to expire (if they had not already done so), the relevancy of Jeffreys would appear to become increasingly redundant.80 Secondly, in providing American (and other foreign) authors with a mechanism for ensuring protection of their works within the UK (and indeed throughout the British empire) the need to argue that such works should be protected (whether under the legislation or at common law) was rendered similarly irrelevant – the simple fact was that now they could.81 Indeed, in the 20 or so years which followed Routledge, bringing us to the time of the implementation of the Berne Convention within the UK,82 the only copyright cases involving works by foreign authors to come before the courts addressed questions as to which types of actions could be equated with the ‘publication’ of a dramatic work so as to denude its author of any rights of representation under the 1833 Act,83 or whether the work in question had been registered in 79

Ibid., p. 418. There were only a handful of cases decided between Routledge and the time of the implementation of the Berne Convention within the UK (infra n. 82), which involved works created prior to 1842: Levy v. Rutley (1871) 6 LR (CP) 1870–71, p. 523, which concerned a play protected under the Dramatic Copyright Act 1833; Marzials v. Gibbons (1874) 9 LR (ChApp) (1873–74), p. 518, which concerned the application of s. 4 of the 1842 Act to a corporate owner (The Wesleyan Conference) of the copyright in a book of hymns first published in 1831; and Re The Musical Compositions ‘Kathleen Mavourneen’ and ‘Dermot Astore’, ex p. Hutchins and Romer (1879) 4 QBD 483, in which the retrospective effect of s. 20 of the 1842 Act was considered in relation to the performance right in two songs composed in 1835–36. Jeffreys was not referred to in any of these decisions. 81 See for example the observation of Richard Bowker (then editor of Publishers’ Weekly and of the Library Journal, as well as vice-president of the American (Authors) Copyright League) that, as a result of Routledge, ‘American authors had been accustomed to make a day’s stay in Montreal on the date of the English publication of their books’; Bowker, R.R. (1912), Copyright: Its History and Its Law, Boston and New York: Houghton Mifflin Company, p. 374. 82 International Copyright Act 1886, 49 & 50 Vict., c. 33; Order in Council (28 November 1887). 83 See Boucicault v. Chatterton (1876) 35 LTR 541, in which the question was whether the performance of a play in the US, prior to its performance in the UK, 80

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accordance with the requirements of the legislation.84 No more would be said as to the existence or not of the common law right. The further irony in all of this is that, as with the Lords in Jeffreys, those speaking in Routledge itself were clearly no apologists for a common law right. Indeed, the Lord Chancellor’s observations were utilitarian and instrumentalist in the extreme. Again: the benefit conveyed by the legislation ‘is a benefit given, not for the sake of the author of the work, but for the sake of those to whom the work is communicated’.85 If Routledge did contribute to a process whereby the relevancy of Jeffreys became increasingly marginalised, it was certainly not because the Lords were adverse to the concept that copyright was no more nor less than a creature of statute.86 In any event, in assessing the manner in which Jeffreys became increasingly eclipsed throughout the remainder of the nineteenth century, alongside the impact of Routledge, we pause here to consider the role which the writers of copyright texts in the late nineteenth century also played in this process.

In 1870, Walter Arthur Copinger, barrister, bibliographer and antiquary, published the first in a long line of what would become for some considerable time the authoritative text on copyright. In his first chapter, the ‘Historical View of the Copyright Laws’, Copinger begins with a conceit straight out of Blackstone’s Commentaries (or indeed Curtis’ Treatise): ‘What property could be more emphatically a man’s own than his literary works?’87 Relying upon exactly the same commentary from Yates J as did Phillips, Copinger draws from it the principle that ‘every man has the right at common law to the first

amounted to a prior publication under the 1833 Act. See also Chappell v. Boosey (1882) 21 ChD 232, in which the question was whether the publication in print of a song prior to its first public performance would prevent its author from claiming a right of representation under the 1833 Act. 84 Boosey v. Fairlie (1877) 4 AC 711; Osbourne v. Vitzelly (1885) 1 TLR 17; Reid v. Maxwell (1886) 2 TLR 790. For similar litigation after 1886 see Fishburn v. Hollingshead (1891) 2 Ch 371. 85 Routledge, p. 876. 86 The only law lord to perhaps register a note of ambiguity as to the source of copyright in law was Westbury with his observation that ‘when a statute is passed which creates or gives peculiar protection to a particular kind of property which it declares shall be deemed personal property, and does not exclude the alien, why is he to be deprived of his ordinary right of possessing such property, or being entitled to such protection?’; ibid., p. 878. 87 Copinger, W.A. (1870), The Law of Copyright in Works of Literature and Art, London: Stevens & Haynes, p. 5. Five years later the American author Morgan would ask: ‘What can be more emphatically a man’s own than his own ideas?’; Morgan, J.A. (1875), The Law of Literature, New York: Cockcroft & Co., p. 4.

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publication of his own manuscript’.88 So far, so good. However, it is at this point that the ambiguity surrounding the nature of Apsley LC’s first question in Donaldson resurfaces, with its attendant opportunities for confusing and conflating the notion of a copyright at common law with the type of right to which Yates J, Perrott B, Lord Brougham and Phillips were alluding.89 Copinger proceeds, as Phillips had done, to consider the effect of publication upon that right, noting that ‘[a]t one time it was contended that by publication the author or proprietor lost any right he might have had at common law to the property in the work published’. His initial response to this (by implication, now redundant) suggestion is one not of law, but of opinion: [I]t would be hard indeed if publication, the one and necessary act to make the work useful and profitable were construed to be destructive at once of the author’s confessed original property against his expressed will. For the right of the author to the property while in manuscript is freely admitted. But he is ready to admit his contemporaries and posterity into a participation in the result of his labours. Without publication the work would be useless to the author, because without profit; and property, without the power of use and disposal, is an empty source. Publication therefore is the necessary act and only method of rendering this avowed property serviceable to mankind and profitable to the owner.90

For Copinger, on publication of the manuscript ‘no more passes to the public than the unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. The property in the composition does not pass’.91 Having established his proposition both in law (relying upon Yates J, no less) and upon principle, Copinger next develops the historical provenance of the common law right through the establishment of the Stationers’ Company, the Star Chamber decrees, the Licensing Act 1662, and finally the Statute of Anne.92 Following the 1709 Act, Copinger draws upon the injunctions granted 88 This, he contends, is supported by a number of decisions concerning injunctions which were granted to prevent the publication of an unpublished manuscript. These cases include: Webb v. Rose (1732) PRO c. 11 1881/156, Forrester v. Waller (1741) PRO C 11 867/54, Pope v. Curl (1741) 2 Atk 342, Queensbury v. Shebbeare (1758) 2 Eden 328, Macklin v. Richardson (1771) Amb 694 and Donaldson itself. For a commentary on these cases: Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain, 1695–1775, Oxford: Hart Publishing, pp. 51–86. Copinger at this point also makes brief reference to Albert v. Strange (1849) 1 M&G 25 (Albert v. Strange); infra n. 157. 89 Chapter 1, n. 23 and accompanying text. 90 Copinger, supra n. 87, pp. 9–10. 91 Ibid., p. 10. 92 Supra n. 87, pp. 11–15.

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in a number of cases concerning works no longer within the copyright term as evidence of the existence of the common law right,93 before turning to Millar and Donaldson. He writes as follows: The common law right was at length disputed and fully discussed in the celebrated case of Millar v. Taylor when judgment was given for the plaintiff on the ground that the common law right to copyright was unaffected by the statute of Anne. However in a case determined on the authority of the last mentioned, the defendant appealed to the House of Lords, on which occasion the following questions were propounded to the judges …94

At this point Copinger sets out only the first three of the five questions which the judges were asked to comment upon; Lord Camden’s two questions are omitted.95 He continues: Eleven judges delivered their opinions seriatim; eight to three for the affirmative on the first question, four to seven on the second, and six to five on the third; so that it was declared that, although an author had by common law an exclusive right to print his works, and does not lose it by the mere act of publication, yet the statute of Anne had completely deprived him of the right.96

This, of course, is the traditional reading that perpetuates the Donaldson myth, which reading had been previously disseminated by Montefiore, Espinasse, Maugham and others.97 However, it is not just the substance of Copinger’s position that is of interest here, but also the manner in which he sets out his commentary. While the marginalia to this passage reads ‘[t]he celebrated cases of Millar v. Taylor and Donaldson v. Becket’, Donaldson itself has slipped from the main body of the text, referred to only as ‘a case’, having been relegated to that academic hinterland that is the footnote. Donaldson, it appears, only has relevance as an adjunct to Millar itself. The footnote in question reads as follows:

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Eyre v. Walker (1735) 1 Black W 331; Motte v. Faulkner (1735) 1 Black W 331; Walthoe v. Walker (1737) 1 Black W 331 and Tonson v. Walker (1739) 1 Black W 331; for a commentary on these cases see Deazley, supra n. 88, pp. 51–86. 94 Supra n. 87, pp. 16–17. 95 As to why Copinger decided to omit Lord Camden’s questions, one can only speculate. The omission is, however, significant in that while Apsley LC’s questions drew attention to the plight and position of the author, omitting any overt reference to the fact that the common law right claimed was one which lasted in perpetuity, whereas Lord Camden’s questions drew attention to the situation of the author’s ‘assigns’, that is, the publishing industry, as well as the perpetual nature of the right under consideration. 96 Supra n. 87, p. 17. 97 In general see Chapter 2.

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What is immediately compelling is that this particular footnote contains much more than just the Donaldson case name and citation; buried within it is the very counterpoint to the myth of Donaldson and the cult of Millar. Copinger is evidently not ignorant of that counterpoint; rather he seeks to obscure, or at the very least, demote it. With three bland words, ‘See Jeffreys v. Boosey’, his analysis operates to destabilise and dissolve any import that either Lord Brougham or St Leonards (or indeed the rest of the House of Lords) might previously have had within this debate.

Rather fittingly, 7 years later, when Charles Purday published his work, Copyright: A Sketch of its Rise and Progress,99 the relevancy of the commentary from Jeffreys on the common law right was simply overlooked, the author writing that in Donaldson it was held that ‘the Act of Anne took away the common-law right’ which decision he noted ‘has never been reversed, although admitted to be unjust’.100 In 1890, when the first manual 98

Supra n. 87, p. 17. On Copinger’s comment on Lord Kenyon’s opinion see Chapter 2, n. 27. 99 Purday, C.H. (1877), Copyright: A Sketch of its Rise and Progress, London. 100 Ibid., pp. 22–23. Purday does draw upon Jeffreys, but only in the context of whether and when foreign authors were entitled to copyright protection under the UK legislation. The year after Purday published his work a Royal Commission established in 1875 to ‘make inquiry with regard to the laws and regulations relating to home, colonial and international copyright’ presented its report to Parliament; Report of the Copyright Commissioners (1878) Sessional Papers, xxiv, c. 2036. As to the copyright in ‘unpublished documents or works of art’, they recommended no alteration in the law, and while noting that ‘[t]he common law principles which lie at the root of the law have never been settled’ and that ‘[t]he well known cases of Millar v. Taylor, Donaldson v. Becket, and Jeffries v. Boosey, ended in a difference of opinion amongst many of the most eminent judges who have ever sat upon the Bench’, they continue, at the start of the Report with the following statement: With reference to copyright generally, we do not propose to enter upon the history of Copyright Laws, nor to discuss the various questions that have from time to time been raised in connexion with the principle involved in those laws. It is sufficient for the present purpose to refer to the above mentioned cases of Millar v. Taylor, Donaldson v. Becket, and Jeffries v. Boosey, and to the debates that have taken place in Parliament, in which the arguments on one side and the other are fully set forth. Taking the law as it stands, we entertain no doubt that the interest of authors and of

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devoted to the law of copyright in musical works was published, the same reading is evident. The 1709 Act, Cutler writes, ‘was held in the case of Donaldson v. Becket (which stands out as a conspicuous landmark in the history of copyright) to have extinguished by implication the natural or inherent right of property in an author’s work; and to cut him down to the right … which he might have by positive enactment’.101 Briggs, writing in rather dramatic fashion in 1900, set out that ‘[b]efore the Act of 1709 the author had a perpetual, though uncertain copyright; and his claim to perpetuity continued for some time alongside and beyond the right given by the statute, until it finally met its death-blow in Donaldson v. Becket’.102 Following Briggs, we come to E.J. Macgillivray and his Treatise upon the Law of Copyright.103 On unpublished works he writes: The author and his assignees have the right of first publication; this right at common law is unaffected by the Copyright Acts, and is a right in perpetuity. The right in literary matter in manuscript is clearly one of property, and is independent of any confidential or contractual relation between the author and those who interfere with his property without authority.104

Macgillivray, while speaking of a right of first publication, like Copinger in 1870, grounded this right upon the author’s property in the literary content and not upon his rights to the manuscript itself. When discussing the right of first publication at common law, he engages in the same transformative process which Copinger pursued, albeit pronounced with greater rhetorical vigour: the public alike requires that some specific protection should be afforded by legislation to owners of copyright; and we have arrived at the conclusion that copyright should continue to be treated as a proprietary right. (Ibid., pp. iii–ix) The reluctance of the Commissioners to engage with the issue is neatly captured in Sir James Stephen’s Digest of the Law of Copyright, which was appended to their Report. In the Digest, Stephen set out that ‘[t]he author or owner of any literary composition or work of art has a right, so long as it remains unpublished, to prevent the publication of any copy of it by any other person’; this was followed with the telling observation that ‘[t]here is (probably) no copyright after publication in any [such works] except such copyright as is given by the express words of the statutes hereinafter referred to’; ibid., pp. lxv–lxvi (emphasis added). 101 Cutler, E. (1890), The Law of Musical and Dramatic Copyright, London: Cassell & Co., p. 3. 102 Briggs, W. (1900), The Law of Literary Copyright: Parts I to IV on the Origin, History and Nature of Copyright, London: Clive, p. 76. See also Briggs’ introductory chapters on ‘The Nature and Origin of Copyright’, where he sets out the traditional argument as to labour providing title to property, and that copyright is based upon labour, in support of which, amongst other sources, he relies upon the opinion of Erle J from Jeffreys; ibid., pp. 1–16 and 14. 103 Macgillivray, E.J. (1902), A Treatise Upon the Law of Copyright, London: Murray. 104 Ibid., p. 220.

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‘The right of an author to his unpublished work is of a much wider and more exclusive nature than his right to published matter. It probably extends to prohibit any kind of interference whatsoever’.105 In support of this supposition he cites, of course, Millar v. Taylor.106 Purday, Cutler and Macgillivray provide only a small sample of the numerous authors producing commentaries upon the law of copyright throughout the latter stages of the nineteenth century.107 They are, however, largely representative of the manner in which these authors positioned themselves in relation to the existence of a copyright at common law.108 105

Supra n. 103, p. 221. See also Macgillivray’s tract on copyright in private correspondence which was privately printed for the Publishers’ Association; Macgillivray, E.J. (1907), Copyright in Letters, London: Publishers’ Association. 107 For example: Jerrold, S. (1881), A Handbook of English and Foreign Copyright, London: Chatto and Windus; Thompson, G.C. (1883), Remarks on the Law of Literary Property in Different Countries, London: National Press Agency; Slater, J.H. (1884), The Law Relating to Copyright and Trade Marks, London: Stevens and Sons; Bowker, R.R. (1886), Copyright: Its Law and its Literature, London: Sampson Law & Co.; Howard, A. (1887), Copyright; A Manual for Authors and Publishers, London: Griffith, Farran & Co.; Putnam, G.H. (1891), The Question of Copyright: A Summary of the Copyright Laws at Present in Force in the Chief Countries of the World, New York & London: Putnam; Bewes, W.A. (1891), Copyright, Patents, Designs, Trade Marks, etc.: A Manual of Practical Law, London: Black; Cooke, P.J. (1895), A Handbook of The Drama, Westminster: Roxburghe Press; Chamier, D. (1895), Law Relating to Literary Copyright, London: Effingham Wilson. 108 The most significant American authors writing on copyright during this period took a different line. James Morgan wrote the first dedicated copyright text since Curtis had published his in 1847. In it Morgan set out that an incorporeal right did exist at common law but that that right was lost upon publication of the text; supra n. 87, pp. 383–89. In a similar vein, Eaton Drone commented that ‘[a]ll the great writers on natural law agree in placing the origin of property in preoccupancy’, that ‘[p]reoccupancy is first possession; and this is given by creation, by production’, that ‘the creator is the first possessor of that which he creates’ and so ‘in labour, then, is found the origin of the right to property. Occupancy implies labour’. Like Curtis before him, by such steps, he ‘endeavoured to show that the ownership of literary property is perpetual by common law’. Unlike Curtis however, Drone continued that: 106

Property in intellectual productions is recognized and protected … both by the common law and by the statute … The two rights do not co-exist in the same composition; when the statutory right begins, the common-law right ends. Both may be defeated by publication. Thus when a work is published in print, the owner’s common law rights are lost; and unless the publication be in accordance with the requirements of the statute, the statutory right is not secured. (Drone, E.S. (1879), A Treatise on the Law of Property in Intellectual Productions, Boston: Little Brown and Company, pp. 1–20 and 100) See also Spalding, H.M. (1878), The Law of Copyright, Philadelphia: Ziegler & Co., p. 113.

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Amongst this tumult of consensus there were, however, a number of dissenting voices.109 The most significant was that of Thomas Edward Scrutton, academic, barrister and, in due course, Lord Justice of the Court of Appeal, who published his first copyright treatise, The Laws of Copyright, in 1883.110 This work, which was revised in 1890, 1896 and for the last time in 1903, was subtitled: An Examination of the Principles which should regulate Literary and Artistic Property in England and other Countries.111 In his first edition, Scrutton set out a lengthy historical treatment of the development of copyright which sought to answer two questions: ‘did copyright at common law exist before the Statute of Anne?’, and if so ‘what was the effect on the common law right of the Statute of Anne?’112 Beginning with the introduction of printing into England by Caxton he summarises the historical development up to the 1709 Act in the following way: There was then prior to the Statute of Anne no statute expressly creating, or judicial 109 See for example, the comments of the publisher John Hotten who set out that copyright is ‘the creation of public law, and that in the absence of such law and rights there can be no infringement’, that ‘the rights of the public as against those of authors have occasionally been overlooked among us’, and that ‘[i]n any attempt that may be made to improve and consolidate our copyright law, both the rights of the public and the rights of authors should be duly considered’; Hotten, J.C. (1871), Literary Copyright: Seven Letters, London: Hotten, pp. 25, 105 and 133. See also the comments in the first chapter of Winslow, R. (1889), The Law of Artistic Copyright, London: Clowes & Sons, which draws heavily upon Lord Brougham’s commentary in Jeffreys. Between these two, in 1879, Macfie published an edited collection of materials concerning copyright and patents in which, in the preface, he set out that copyright ‘was originally a privilege conceded in order to warrant and induce authors and printers to publish. The idea of recognising or even of constituting property was alien to the whole proceeding’; Macfie, R.A. (1879), Copyright and Patents for Inventions, Edinburgh: T&T Clark, p. ix. See also: Hinkson, H.A. (1903), Copyright Law, London: Bullen, pp. 1–4; Edmunds, L. and Bentwich, H. (1908), The Law of Copyright in Designs, 2nd edn, London: Sweet & Maxwell, pp. 52–55. 110 Scrutton had a remarkable career, which began with his studies at the University of London where he took the degrees of BA, MA and LLB in 1882. In that same year he won the Yorke Prize at Cambridge for his legal essay upon copyright law which would form the basis for his 1883 book. He won the Yorke Prize three further times, in 1884, 1885 and 1886, a feat which no-one had previously, or has subsequently, achieved. He also had the privilege of contributing the first essay to the first edition of the Cambridge Law Journal in 1921 entitled ‘The Work of the Commercial Courts’ (1921), Cambridge Law Journal, p. 6. Called to the bar in 1882, he was made King’s Counsel in 1901. During this period he was a Professor of Constitutional Law and Legal History at University College London. In 1910, he was appointed a judge of the King’s Bench and in 1916 was made a Lord Justice of the Court of Appeal and sworn of the Privy Council. 111 Scrutton, T.E. (1883), The Laws of Copyright, London: Murray. 112 Ibid., p. 68.

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Rethinking copyright decision expressly recognising, copyright; there was such constant usage among authors and printers, recognised indirectly by statutes and judicial decisions, that when the question arose for decision, a Court of Law might reasonably recognise literary property both before and after publication, as part of the Common Law; and such was the opinion of three judges in Millar v. Taylor, and of eight judges against four in Donaldson v. Beckett.113

Although more measured in his language, there is nothing here to distinguish Scrutton’s point of view from that of Copinger. Before closing his historical sketch, however, he concedes that ‘something must be said of the great case of Jefferies v. Boosey, which, though more directly concerned with international copyright … yet raised a question as to the existence and nature of common law copyright’.114 The ‘Law Lords’ in that case were, he writes, ‘unanimous against a copyright at common law’, citing Campbell LC (incorrectly) and Lords Brougham and St Leonards. Returning to Jeffreys a number of times throughout his text, it is clear that for Scrutton ‘all the dicta … are addressed to the proposition that copyright after publication rests entirely on the statute law’ while ‘the common-law property before publication is unhesitatingly admitted’.115 At what point then does Scrutton begin to depart from this orthodoxy? It occurs when he brings out the second edition of his work in 1890, now entitled The Law of Copyright.116 Having substantially revised the layout of his previous treatise, Scrutton also readjusts his analysis of Jeffreys and the common law right: Copyright, or the exclusive right of multiplying copies of a literary or artistic work already published, is now the creature of statute.117 The various rights possessed by authors at common law, though in effect they may prevent the multiplication of copies of a work, cannot rightly be called “copyright,” but are merely common law incidents of property.118

The relevant dicta in Jeffreys no longer concerns post-publication rights only. Instead, Lord Brougham’s observations upon the ‘undisputed right to [a] manuscript’ take centre-place.119 113

Supra n. 111, p. 94. Ibid., pp. 111–12. 115 Supra n. 111, p. 224 (emphasis added). 116 Scrutton, T.E. (1890), The Law of Copyright, London: Clowes and Sons. 117 At this point in his text Scrutton inserts the following footnote: ‘Jefferies v. Boosey, 4 H.L.C., at p. 954. Cf. per Lindley, L.J., in Tuck v. Priester, 19 Q.B.D. 640’; ibid., p. 52. 118 Ibid. 119 Supra n. 117, pp. 52 and 60. Note also his reliance upon the commentary of Yates J in Millar, that an author’s ‘manuscript is in every sense his peculiar property, 114

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Three years prior to the publication of this second edition on copyright, Scrutton had published a treatise on Commons and Common Fields, or The History and Policy of the Laws Relating to Commons and Enclosures in England remarking: The importance of the question of open spaces to England of today, still more to the England of the future, can hardly be exaggerated. It is hoped that the following pages may assist the public understanding of the problem, and add in however small degree to the forces at work to keep the land of England from becoming closed to the people of England.120

While it is tempting to read these observations as a forerunner to the work of Jamie Boyle and others who write on the intellectual commons, the open source phenomenon and the relevancy and significance of maintaining a healthy and meaningful public domain,121 the reason for Scrutton’s change in approach almost certainly lay with a number of decisions handed down in 1887. Tuck & Sons v. Priester (1887) (Tuck) concerned the assignees of the copyright in a water-colour (Sounding the Charge) who, in January 1884, employed the defendant, a printer in Berlin, to produce 2000 copies of the painting.122 The defendant supplied the copies, but also produced some for himself, which were subsequently imported for sale into England. After this the plaintiffs registered their copyright in the painting on 21 January 1886. Upon discovering that the defendant was selling copies of the work they commenced their action for an injunction as well as both penalties (s. 6) and damages (s. 11) under the Copyright Act 1862.123 Counsel for the defendant argued that the plaintiffs were not entitled to recover, as at the time of making the copies the work had not been registered in accordance with the legislation.124 Sir Edward Clarke, the Solicitor General, countered that in making copies prior to registration the defendant had infringed the plaintiffs’ copyright at common law, that such copies were thus ‘unlawful’ copies within the meaning of both ss 6 and 11, and so the plaintiffs were entitled to recover. Although the preamble to the 1862 Act set out that ‘[w]hereas by law, as now established, the authors of paintings, drawings, and photographs have no and no man can take it away from him, or make any use of it which he has not authorised’; ibid., p. 60. 120 Scrutton, T.E. (1887), Commons and Common Fields, or The History and Policy of the Laws Relating to Commons and Enclosures in England, Cambridge: Cambridge University Press, p. 8. 121 See Chapter 4. 122 Tuck v. Priester (1887) 19 QBD 48 (Tuck). 123 Copyright Act 1862, 25 & 26 Vict., c. 68. 124 Ibid., s. 4.

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copyright in such their works, and it is expedient that the law should in that respect be amended’, Clarke argued that ‘[t]here is a copyright at common law’ and that ‘the recital in the preamble … that authors had no copyright in their works [was] incorrect’.125 In support of his argument he cited, amongst others, Millar, Donaldson and Jeffreys.126 Grove J dismissed the plaintiffs’ claims. As to the argument upon the common law right he observed: I think that the term “copyright” applies to the statutory right to a monopoly after publication. It is an exclusive right to copy and to assign the right, lasting only for a limited time, and in my opinion it does not apply to what I think is erroneously called common law copyright. The word, so far as I am aware, did not exist as descriptive of any right at common law, though for convenience’ sake it has sometimes been used to describe such a right.127

He continues with an examination of the positions set out by both Lords Brougham and St Leonards in Jeffreys; as regards the latter, he summarises his position thus: ‘What he says is, that there is no copyright at common law, or in other words, that the common law right is not copyright.’128 When the appeal came on to be heard, just over 2 months later, Scrutton had joined Clarke as counsel for the plaintiff.129 Reversing the previous decision, Lord Esher MR considered that the plaintiffs were in any event entitled to an injunction and damages as a result of a breach of an implied term of the contract existing between the parties. However, did they have the same rights under the statute? Esher MR began: ‘I will assume it to be true that no “copyright” in works of art existed before the Act’. He continued that as the defendants had continued to sell their copies after registration by the plaintiffs they were equally liable under s. 11 of the Act. Lindley LJ, coming to the same conclusion, was nevertheless in agreement with Grove J’s reading of Jeffreys as well as his assessment of the nature of the common law right: ‘[T]hat which is called “copyright” at common law has been shewn by the decision of the House of Lords in Jefferys [sic] … to be an incident of property and nothing more.’ Copyright on the other hand, was ‘something far beyond 125

Tuck, pp. 48 and 51. Ibid. 127 Tuck, p. 53. 128 Ibid., pp. 56–57 (emphasis added). 129 Tuck, p. 629. They opened that ‘[w]hatever may be the true construction of the different Copyright Acts, the plaintiffs independently of those statutes are entitled to an injunction and damages’ suggesting that the statement in the preamble ‘is incorrect, unless indeed the word “copyright” is used in the limited sense of “the exclusive right of reproduction after publication”’; ibid., p. 632. 126

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that: it is the exclusive right of multiplying copies of a work already published’.130 Perhaps as important as Scrutton’s involvement in the Tuck litigation was the fact that, sandwiched between the two stages of that case, the issue of the common law right had also been revisited by the House of Lords in Caird v. Sime (1887) (Caird).131 John Caird was a professor at the University of Glasgow complaining of the printing and publication of certain of his lectures on moral philosophy, which had been compiled by one of the students attending his classes. Lord Watson, speaking in the majority, neatly aligned the case within the division identified in Jeffreys. ‘Copyright’ he explained ‘the exclusive privilege of multiplying copies after publication, is the creature of statute, and with that right we have nothing to do in the present case’. Instead, he asserted that ‘[t]he author of a lecture on moral philosophy, or any other original composition, retains a right of property in his work which entitles him to prevent its publication by others until it has, with his consent, been communicated to the public.’ As was settled in Jeffreys, he continued, ‘upon such communication being made to the public, whether orally or by circulation of written or printed copies of the work, the author’s right of property ceases to exist’.132 The question was not whether the lecturer in question had a common law copyright in his lectures; rather it turned upon whether he could be considered to have communicated the same to the public. Lord Watson referred to the earlier analogous decision of Abernethy v. Hutchinson (1825) in which Lord Eldon, granting an injunction against the publication of lectures that had been delivered at St. Bartholomew’s Hospital, did so, not on copyright grounds, but on the understanding that ‘all the persons who attended these lectures were under an implied contract not to publish what they had heard, although they might take it down for their own instruction and use’.133 In the present case, Lord Watson conceded that while 130 Ibid., p. 640. This was an opinion which Lindley LJ would reiterate in the Court of Appeal in Walter v. Lane (1899) 2 Ch 729 (Walter (1899)), when he observed: ‘The [1842 Copyright] Act … confers copyright on the authors of books first published in this country. There can be no copyright in what is not published in a book … The author of an unpublished manuscript has no copyright in it, but he has a right to acquire copyright in it; and this right may impliedly transfer to anyone to whom he sells or gives the manuscript’; ibid., pp. 769–70. Although Lindley LJ’s decision in Walter (1899) was subsequently overturned by the House of Lords it was upon grounds other than his views upon the relationship between the common law right and the statutory copyright; see Walter v. Lane (1900) AC 539 (Walter (1900)). It is worth noting that Scrutton was also involved in the Walter v. Lane litigation, acting as counsel for the defendants. 131 Caird v. Sime (1887) 12 AC 326. 132 Ibid., p. 343. 133 Abernethy v. Hutchinson (1825) 1 H & TW 28.

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there was nothing ‘in the nature of a contract between the professor and his students’, nevertheless the students could not ‘with propriety be said to represent the general public; of course they are, each and all of them, members of the public; but they do not attend the professor’s lectures in that capacity’.134 When Scrutton published the second edition of his work, noting that what rights an author may have at common law ‘cannot rightly be called “copyright”, but are merely common law incidents of property’,135 the influence of Grove J and Lindley LJ in Tucker and of the decision of the Lords in Caird can be clearly identified. It was similarly evident in Exchange Telegraph Company Limited v. Gregory & Co. [1896] when Scrutton, with Bigham and Shearman, argued on behalf of the plaintiff that ‘[t]he principle stated in Jefferys [sic] v. Boosey and affirmed in Caird v. Sime applies – that an author had a right of property in his work which entitles him to prevent its publication by others until it has, with his consent been communicated to the public’.136 Again, when Scrutton gave evidence to the House of Lords Select Committee on the proposed Copyright Bill of 1898, he was questioned as to the nature of, and relationship between, the common law and the statutory right: Lord Thring. Why do we have a copyright law at all; if the common law copyright would protect in perpetuity, why is the copyright law substituted? – Because as soon as publication takes place then there is no longer the common law right. How do you lose it; under what law? – Under the common law. Where do you find that? – In two decisions of the House of Lords; in Jeffries [sic] v. Boosey, and in Caird v. Sime. 134 Caird, p. 348. Lord Fitzgerald, dissenting, considered that ‘the delivery of the lectures was a publication to the public at large, and that being such, the pursuer has abandoned to the public the exclusive rights which he otherwise had, and the protection which the common law would otherwise have afforded him’; ibid., p. 353. Interestingly, Brougham had appeared as counsel for the defendants in Abernethy and was also responsible for the passage of the Copyright Lectures Act 1835. Seville explains his involvement with the 1835 Act in the following manner: ‘Brougham was involved with the organisation of educational lectures at various Mechanics’ Institutes, and presumably baulked at the thought of their being published at a profit by a publisher with less laudable aims than those of the SDUK [the Society for the Diffusion of Useful Knowledge which Brougham had been instrumental in founding]’; Seville, supra n. 29, pp. 53–56. 135 Supra n. 118 and accompanying text. 136 Exchange Telegraph Company Limited v. Gregory & Co. [1896] 1 QB 147, p. 151. See also Scrutton’s comments on Caird and the nature of an author’s rights at common law in argument in Walter (1899), p. 749.

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The publication of any work artistic or literary deprives you of the common law right? – Yes. That is decided by the House of Lords? – Yes. Chairman [Lord Herschell]. So that after that your reliance must be on the statutory right? – On the statutory right, if any.137

In any event, like the decision in Jeffreys itself, commentaries like Scrutton’s were to be subsequently eclipsed, and it seemed that Caird was to be subject to similar processes of re-interpretation and re-presentation as Donaldson and Jeffreys, given that by the time Monckton v. The Gramophone Company Ltd (1912) (Monckton)138 was decided, the supremacy and dominance of the Donaldson myth was all but a fait accompli.

In Monckton, a case which straddled the coming into force of the Copyright Act 1911,139 the plaintiff had composed a song called Moonstruck which was first published in February 1909. The defendant company printed and sold gramophone records of the song for private consumption. With the emergence of new sound recording technology the analogy between the song and the book had, of course, broken down and the existing legislation contained no provision for preventing these oral (as opposed to printed) reproductions.140 The plaintiff claimed that he was solely entitled to make or authorise the making of such gramophone records, based not upon the existing statutory copyright, but upon the ‘common law right of proprietorship in his own work’. The action was dismissed before Joyce J and the plaintiff appealed. The appeal was heard after the passing of the 1911 Act (which had since implemented provisions protecting the copyright owners of musical compositions from unauthorised use of their works on mechanical instruments such as records and perforated rolls).141 However, as to the position under the 137 Report from the Select Committee of the House of Lords on the Copyright Bill and the Copyright (Amendment) Bill, Session 1898, p. 229. 138 Monckton v. The Gramophone Company Ltd (1911–12) 28 TLR 205. 139 Copyright Act 1911, 1 & 2 Geo. 5, c. 46. This statute represented the first significant attempt, within the UK, to draw together and codify the various, existing strands of copyright legislation within one parent Act. 140 In Newark v. National Phonographic (1907) 23 TLR 439, Sutton J had earlier concluded that a phonographic record was not a ‘sheet of music’ within the meaning of the Copyright Act 1842. Similarly see Mabe v. Connor (1909) 1 KB 505, which concerned perforated piano rolls. 141 Section 19(1) provided that ‘[i]t shall not be deemed to be an infringement of copyright in any musical work for any person to make … records, perforated rolls, or

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previous legislation, Cozens-Hardy MR, observing that this ‘was not a case of the rights of the plaintiff before publication’, and referring to both Donaldson and Jeffreys, asserted that such rights at common law as did exist, were limited until and ceased upon publication. He dismissed the plaintiff’s appeal. In the course of his judgment, Cozens-Hardy MR made reference to an earlier Court of Appeal decision of his own which had also addressed the issue of copyright at common law: Mansell v. Valley Printing Co. [1908] (Mansell).142 The question for the court in Mansell, one of the seven cases concerning the ‘common law right’ referred to in Macgillivray’s Copyright Cases,143 was whether someone could be liable for damages for printing a pirate edition of an unpublished picture. The plaintiff had commissioned an artist to produce two pictures and designs for him to be used in an advertising campaign. However, another artist in the plaintiff’s employ made copies of the pictures and then sold them as original drawings to the defendant company before the plaintiff had registered the works in accordance with the legislation.144 The record of part of the plaintiff’s argument before the Court of Appeal runs as follows: It is clear from Caird v. Sime and Donaldsons v. Becket that there is a proprietary right in an unpublished literary production, and the owner of an unpublished picture is in the same position: Prince Albert v. Strange. In Jeffreys v. Boosey the rights of an author before publication are treated as unquestioned. The nature of this common law right before publication, and the remedy for the violation of that right, were considered in Millar v. Taylor. It is clear that the common law recognized in an author a property in his composition, so long as he kept it to himself, i.e., property in the abstract thing as distinguished from the concrete thing, the words written on the paper.145

Here we have Caird, Donaldson, Jeffreys and of course Millar all pressed towards the same end – the acknowledgement of ‘property in the abstract thing as distinguished from the concrete thing’. In holding for the plaintiff, Cozens-Hardy MR set out his position on the common law right in a manner in which he felt was subsequently unnecessary

other contrivances by means of which the work may be mechanically performed, if such person proves (a) that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and (b) that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all contrivances sold by him’. 142 Mansell v. Valley Printing Company [1908] 2 Ch 441. 143 Supra n. 41. 144 Copyright Act 1862, 25 & 26 Vict., c. 68. 145 Mansell, pp. 443–44.

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in Monckton. As to the ‘common law right of an author before publication’ he considered there was ‘no uncertainty in the law’. It could not be denied that an author had a right in his ‘unpublished literary productions’, which right he suggested was based ‘upon property’. Moreover, he asserted that such rights ‘[do] not depend upon property in the paper or the MS. It is an incorporeal property’. The ‘weighty authority’ of Donaldson he considered was ‘decisive of the present appeal’.146 In explicitly recognising an author’s proprietary common law rights as wholly dislocated from his manuscript, Cozens-Hardy MR, without making any reference to Jeffreys v. Boosey at all,147 engineered a tidy inversion of the position previously elaborated by Lords Brougham and St Leonards. The manuscript as the focus of pre-publication rights was definitively jettisoned in favour of a conceit endorsing the author’s natural and inherent right to control the printing and reprinting of what literary, artistic or musical works he might create. Whether Cozens-Hardy MR did so wittingly or not must remain a moot point.148 However, a likely explanation for the substance of his commentary lies in the fact that in the 10 years prior to Mansell a considerable number of texts on the law of copyright, including the fourth edition of Copinger,149 were propagating the very same conception of copyright at common law. What’s more, this collective analysis drew upon a compelling historical provenance leading directly back to that most eminent of legal thinkers and commercial innovators: Lord Mansfield.150 Further still, all this took place at a time 146 Ibid., pp. 444–45; Mansell was subsequently applied in Bowden Brothers v. Amalgamated Pictorials Ltd [1911] 1 Ch 386. 147 Or indeed to the comments of Grove J or Lindley LJ in Tuck; supra n. 122 and accompanying text. 148 Farwell LJ, sitting with Cozens-Hardy MR, commented that ‘[T]he only question is what is the extent and nature of an author’s right at common law in his own work before publication, apart from any title to the corporeal paper or canvas upon which it is written or delineated. I am of opinion that it is an incorporeal right of property giving to the author the fullest rights not only of exclusion, but also of actual enjoyment so far as they are compatible with non-publication. All his rights are common law are limited until and cease upon publication … The very question argued in this case appears to me to have been decided not only in Millar v. Taylor, but is also stated to be the law by eight out of eleven judges who advised the House of Lords in Donaldsons v. Becket’; Mansell, p. 447. 149 Birrell, A. (1899), Copyright in Books, London: Cassell & Co.; Briggs (1900), supra n. 102; Macgillivray, supra n. 103; Copinger (1904), The Law of Copyright, 4th edn, London: Stevens & Haynes; Cutler, E. (1905), A Manual of Musical Copyright Law, London: Simpkin et al.; Macgillivray, E.J. (1906), A Digest of the Law of Copyright, London: Butterworth & Co.; Colles, W.M. and Hardy, H. (1906), Playright and Copyright in all Countries, London: MacMillan & Co.; Briggs (1906), supra n. 3. 150 Other writers have drawn attention to the mushrooming of legal texts in the late nineteenth century and their influence upon subsequent developments in legal doctrine;

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when the legal treatise had begun to assume a new significance for the profession. With the emergence of the law school proper in the late nineteenth century, a new academic interest in the law provoked the emergence of legal texts designed to explore and set out what principles underpinned different areas of the law itself.151 Snell’s Principles of Equity was first published in 1868; Buckley on the Companies Act in 1873. Following these came Underhill’s Law Relating to Trusts and Trustees (1878), Dicey’s Law of the Constitution (1885) and Clerk on Torts (1889). In 1876 Pollock published his Principles of Contract, after which followed Anson’s Law of Contract (1879). Two years before Anson, Stephens published his masterly Digest of the Criminal Law (1877), and in 1886 Scrutton himself published what would become the definitive text on Charterparties. Pollock and Maitland, of course, completed their History of English Law in 1895; not surprisingly, given that it was concerned with ‘Anglo-Saxon legal antiquities’ the authors had nothing to say on the subject of copyright. By comparison, when Holdsworth published the sixth volume in his History of English Law, upon the question of copyright at common law, he observed: ‘[I]t can hardly be doubted that the view taken by the majority of judges, both in [Jeffreys] and in the majority of cases in the eighteenth century, that [copyright] existed at common law, is historically correct’.152 What had once been so heatedly contested, and rejected, not once but twice by the House of Lords, was now quite simply an understood and accepted orthodoxy. see for example Milsom, S.F.C. (1981), Historical Foundations of the Common Law, London: Butterworths, in which the author attributes the creation of the modern law of negligence to legal writers ‘whose struggle through the centuries to classify actions on the case … eventually made negligence into ‘a’ tort’; ibid., p. 399. See also Simpson, A.W.B. (1975), ‘Innovation in Nineteenth-Century Contract Law’, Law Quarterly Review, pp. 247 and 264–5, on the influence of Pollock upon the development of the modern law of contract. On the influence of late nineteenth-century legal writing (and in particular, that of Pollock) upon twentieth-century legal academic scholarship see Duxbury, N. (2000), ‘When We Were Young: Notes in the Law Quarterly Review, 1885–1925’, Law Quarterly Review, p. 474. 151 In general see Fifoot, C.H.S. (1859), Judge and Jurist in the Reign of Victoria, London: Stevens & Sons, pp. 24–30; see also Duxbury, N. (2001), Judges and Jurists: An Essay on Influence, Oxford: Hart Publishing. On the history of the legal treatise see Simpson, A.W.B. (1983), ‘The Legal Treatise and Legal Theory’, in Ives, E.W. and Manchester, A.H. (eds), Law, Litigants and the Legal Profession, London: Royal Historical Society, pp. 11–29. 152 Holdsworth, W.S. (1924), A History of English Law, VI, London: Methuen & Co., p. 379. Holdsworth continues: ‘Many of these judgments, and notably the judgment of Erle J., in Jeffreys v. Boosey, display a remarkable historical insight into the origins and mode of development of this branch of the law. As Erle J., points out, and as the history which I have just related shows, the fact that there are hardly any

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In concluding this chapter we turn once again to Copinger’s Law of Copyright, of interest not just because it became and has remained one of the key points of reference as to the current state of the law of copyright (and is certainly the text exhibiting the greatest authority by dint of longevity), not just because it became the text which many other authors at the time would expressly acknowledge as central in their own explorations of the law,153 and not just because it seemed to be the text to which counsel and judges alike would most readily refer in cases of alleged copyright infringement,154 but because that text has itself, necessarily, moved through a number of different writers. Consider again Copinger’s starting point in the first edition of his text: ‘What property could be more emphatically a man’s own than his literary works’?155 In his second edition the question remains, however Copinger does modify his ‘Historical View’ in a number of interesting ways. In addition to a lengthy exposition of Prince Albert v. Strange (1841),156 and an expanded historical sweep,157 Copinger also modified his account of common law actions for infringement of copyright before the Act of 1709, is not conclusive against the existence of copyright at common law. Their absence is fully accounted for by the fact that more convenient remedies then existed which plaintiffs naturally employed’; ibid. 153 See for example the acknowledgments as to the reliance upon Copinger’s work in: Newton, A.V. (1884), An Analysis of the Patent and Copyright Laws, London: Trübner & Co.; Jerrold, supra n. 107; Cutler, supra n. 149; Singer, B. (1909), Copyright Laws of the World, Chicago: Singer; Bowker, supra n. 81. 154 See for example the various references to Copinger in: Levy v. Rutley (1871) 6 LR (CP) 1870–71 523; Chatterton and Webster v. Cave (1875) 10 LR (CP) 1874–75 572; Adams v. Clementson (1879) 12 LR (Ch) 714; Thomas v. Turner (1886) 23 ChD 292; Aflalo and Cook v. Lawrence and Bullen (1902) 1 Ch 318. 155 Supra n. 87, p. 5. 156 Copinger, The Law of Copyright, 2nd edn, pp. 10–17. Copinger’s purpose in relying upon Albert v. Strange was to lend force to the argument that every person had a right at common law to the ‘first publication of his own manuscript’; supra n. 88. In Albert v. Strange, of course, one of the arguments put by counsel on behalf of the plaintiff (one of whom was none other than Sergeant Talfourd), was that the publication of the etchings was akin to the publication of a man’s unpublished manuscript. The Vice Chancellor, Lord Knight Bruce, having considered both Donaldson and Millar, concluded that the principle behind this position was that the common law ‘shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known’. This principle, he considered, could not be confined simply to ‘literary subjects’ but would extend to any situation ‘[w]herever the produce of labour is liable to invasion in an analogous manner’; that is, it would extend to the etchings of the Prince Consort. To rely upon Albert v. Strange, decided 5 years before Jeffreys, seems, from this point of view, less than sound. Indeed, when Easton came to publish the fifth edition of Copinger’s work, he located Albert v. Strange within its more traditional context as evidencing an example of publication in breach of confidence. 157 Ibid., pp. 19–24.

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Donaldson (still as yet referred to as simply ‘a case’ in the main body of the text), now including the fourth and fifth questions put to the House by Lord Camden, as well as altering his record of the votes cast by the common law judges upon the first and second questions.158 He now also incorporated an exposition of Jeffreys, placing it within the parameters of a discussion concerning the existence of a common law right after publication, and citing Lord St Leonards (but not Lord Brougham) at length.159 Following this, Copinger wrote: Notwithstanding the admission that the general current of opinion is against the common law right, there can be no doubt that until 1774 when the case of Donaldson v. Becket was decided, the universal opinion was the other way, and it has the support of some of the ablest judges who ever adorned the bench.160

One of the judges to whom Copinger refers is without doubt Lord Mansfield. Indeed, earlier in the chapter, he also introduced some noteworthy additional commentary. In the first edition, following his reference to Yates J’s analogising as between ideas and birds, Copinger wrote ‘[t]hus we see that every man has the right at common law to the first publication of his own manuscript’.161 To this, in the second edition, he adds: [I]t cannot without his consent be even seized by his creditors as property. He has in fact, supreme control over his own productions, and may either exclude others from their enjoyment, or may dispose of them as he pleases. He may limit the number of persons to whom they shall be imparted, and impose such restrictions as he pleases upon their use. He may annex conditions, and proceed to enforce them, and for their breach claim compensation.162

In support of this additional commentary Copinger cites Lord Mansfield (albeit in a footnote) who ‘described his right as “an incorporeal right to print a set of intellectual ideas, or modes of thinking, communicated in a set of words, or sentences, and modes of expression. It is equally detached from the manuscript, or any other physical evidence whatsoever”’.163 In a similar vein 158

Supra n. 156, p. 30. In the first edition, Copinger recorded the judges’ votes on the first two questions as follows: ‘[E]ight to three for the affirmative on the first question, four to seven on the second’; in the second edition his record is as follows: ‘[T]en to one for the affirmative on the first question; eight to three for the negative on the second question’; ibid. 159 Supra n. 156, pp. 31–32. 160 Ibid. 161 Supra n. 87, p. 7. 162 Supra n. 156, p. 7. 163 Ibid.

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he also places greater reliance upon the opinion of Erle J from Jeffreys (one of the judges who the Lords of course opted to vote against), in citing a lengthy passage (again in a footnote) which begins, ‘[t]he nature of a right of an author in his works is analogous to the rights of ownership in other personal property’, and finishes, ‘[a]bout the rights of an author before publication at common law, all are agreed’.164 This version of the text would only be substantially revised when Easton published the fifth edition of the work, in 1915,165 five years after Copinger himself had died.166 Copinger’s first chapter on the ‘Historical View of the Copyright Laws’ became Part I of the treatise as a whole, split into two chapters, the first concerning the ‘Nature of Copyright’167 and the second presenting an ‘Historical View of the Copyright Laws in England’.168 Moreover, a considerable portion of the commentary was moved into Part II,169 the first chapter of which concerned ‘Unpublished works, and herein of publication’.170 Within the first few pages of the text, concerning the ‘Nature of Copyright’, Copinger’s question (albeit rhetorical), ‘[w]hat property could be more emphatically a man’s own than his literary works?’, has become a statement of fact: ‘[N]othing can with greater propriety be called a man’s property than the fruit of his brains’.171 ‘It has’ Easton observes ‘nevertheless, been a matter of frequent controversy whether copyright is a natural right or one entirely dependent upon statute’. This controversy he continues ‘came before the House of Lords in the famous case of Donaldson v. Becket’, and recounting, once again, only the first three of the five questions considered before the House, he concludes that ‘the common law right which an author had to copyright in his works became merged in the statutory right conferred by the Copyright Act then in force’.172 Jeffreys is also referred to in Easton’s four page dissection as to the nature of copyright but now performing an altogether novel function. Having set out the decision in Donaldson, he continues: Although, from time to time, there have been cases in which the contrary has been strenuously argued [Jeffreys], this case [Donaldson] must be taken to have finally 164

Supra n. 156, p. 8. Easton, J.M. (1915), Copinger: The Law of Copyright, 5th edn, London: Stevens & Haynes. 166 Copinger died in 1910, aged 62, as a result of pneumonia, following an attack of influenza. 167 Supra n. 165, pp. 1–4. 168 Ibid., pp. 5–21. 169 ‘The General Law of Copyright’. 170 Supra n. 165, pp. 22–48. 171 Ibid., p. 3. 172 Supra n. 165, p. 4. 165

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Once more relegated to a footnote, Jeffreys no longer reads as a challenge to the existence of a copyright at common law, but rather operates to call into question the appropriateness of the decision in Donaldson that an author should lose his common law copyright post-publication. The pertinent commentary in Jeffreys is no longer that of Lords Brougham or St Leonards, but rather Erle, Wightman and Coleridge JJ. In any case, Easton concludes that ‘[c]opyright, therefore, at the present day is, in England, purely a statutory right’. Easton was, of course, writing an absolute truism, for, at this point in time, the Copyright Act 1911 had specifically provided for the abrogation of the common law right. Section 31 set out as follows: No person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force.

Having been written into a critical mass of leading copyright texts by the end of the nineteenth century, and then adopted within a number of significant judicial decisions by the start of the twentieth, the notion of a common law copyright was finally written into the legislation itself – albeit only so that the legislature could deny its relevancy. As a consequence, Easton’s section on the history of copyright now only needed to focus upon its statutory development alone.174 Thus, with the fifth edition, the ‘law’, at least in relation to the concept of a common law copyright, had all but ossified into one compelling narrative thread; in effect, the argument concerning the existence or not of a copyright at common law had ceased to become part of the story of copyright’s history at all. When the next editor, F.E. Skone James, took over responsibility for the sixth edition in 1927, as if to draw a line under the process which Easton had begun, he no longer opened the chapter on ‘Unpublished Works’ with Yates J’s dicta from his dissenting opinion in Millar, but rather began with Erle J from Jeffreys and an analogy that was considerably different from that of Yates J’s caged birds seeking release: The nature of the right of an author in his works is analogous to the rights of ownership in other personal property, and is far more extensive than the control of copyright after publication in print, which is the limited meaning of copyright in its

173 174

Ibid. Supra n. 165, pp. 5–21.

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common acceptance, and which is the right of an author to which the statute of Anne relates. Thus, if after composition the author chooses to keep his writings private, he has the remedies for wrongful abstraction of copies analogous to those of an owner of personalty in the like case.175

This was, of course, the same passage that Copinger had introduced (in a footnote) into the second edition of his work,176 and with it copyright at common law, now divorced from the manuscript, underwent a subsequent and final process of reification – a property right to be understood as with any other form of personalty (tangible or not). Upon the publication of the seventh edition of Copinger’s work, in 1936, the supremacy and dominance of the Copinger analysis was rendered complete. On 7 December 1934, the same year in which Scrutton died, the Court of Appeal handed down their decision in the matter of In Re Dickens, Dickens v. Hawksley (In Re Dickens).177 The case concerned the last will and testament of Charles Dickens, who had died in 1870, the same year in which Copinger first published his treatise on copyright. In his will Dickens had left all of his real and personal estate (including his copyrights) to John Forster and Georgina Hogarth upon trust for his children. In addition he left Ms Hogarth ‘all of my private papers whatsoever and wheresoever’. Among the private papers that Hogarth received was a manuscript of an unpublished work, originally written for the instruction of Dickens’ children, The Life of Christ, at least one other copy of which had been made and given by Dickens to his son, Charles. Hogarth, in her will, bequeathed the manuscript to her nephew Henry Fielding Dickens, who, having died in 1933, subsequently left it to his wife, Marie Therese Dickens, the appellant.178 On 6 February 1934 the appellant assigned the copyright in the work to 175

Skone James, F.E. (1927), Copinger on the Law of Copyright, 6th edn, London: Sweet & Maxwell, p. 21. 176 Supra n. 164. 177 In Re Dickens, Dickens v. Hawksley [1935] Ch 267. 178 The terms of Henry Fielding Dickens’ will of 1930 read as follows: ‘I give and bequeath to my wife the original manuscript of my father’s ‘Life of our Lord’ which was bequeathed to my aunt Georgina Hogarth in my father’s will and given by her to me to hold on the following trusts: Being his son I have felt myself constrained to act upon my father’s expressed desire that as it was not intended as a literary effort it should not be published; but I do not think it right that I should bind my children by any such view, especially as I can find no specific injunction against such publication. I therefore direct that my wife and my children should consider this question quite unfettered by any view of mine; and if by a majority they decide that the manuscript should not be published I direct my wife to deposit it with the trustees of the British Museum upon the usual terms; but if they decide by a majority that it should be published then I direct my wife to sell the same in trust to divide the net proceeds of such sale among my wife and all my children in equal shares’; ibid., pp. 270–71.

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Associated Newspapers Limited. The residuary legatees of the Dickens estate sought the proceeds of the sale, arguing that the copyright in the work did not pass with the manuscript to Georgina Hogarth in 1870. Interestingly it was Skone James who appeared with Croom-Johnson on behalf of Marie Therese arguing that, at common law, what rights subsisted in an unpublished work adhered to the manuscript, relying as an authority for this proposition not upon Copinger but upon the fourth edition of Scrutton on Copyright.179 Evershed and the aforementioned Macgillivray appeared for the residuary estate, and drawing upon the Mansell decision, countered that copyright in an unpublished work was an incorporeal right of property which subsisted independently of the actual manuscript. On this point the court unanimously held in the respondent’s favour. The influence and spirit of Lord Mansfield flows through all three opinions,180 but the most interesting perhaps is that of Maugham LJ, older brother to the author William Somerset Maugham, and grandson to Robert Maugham whose Treatise had been published just over 100 years previously. As to the argument proffered by Croom-Johnson and Skone James he noted: The late Sir Thomas Scrutton, it is true, said … that the common law right cannot rightly be called “copyright” (Scrutton on Copyright, cap. II.), and he cited Lord Brougham in Jeffreys v. Boosey. In my opinion this is too broadly stated, and I think Lord Brougham did not express that opinion.181

It is fitting in the extreme, that this case, concerning a manuscript by perhaps the greatest English author of the nineteenth century, and one who was also an earnest and active advocate upon issues concerning authors’ rights and international copyright protection, should resolve any lingering doubt as to the nature of the common law right arising out of the competing readings in Copinger and Scrutton. Even more appropriate is the fact that when Skone James produced the seventh edition of Copinger’s work in 1936, having lost the argument before the Court of Appeal, he began the chapter concerning unpublished works, not with Yates J, or with Erle J, but with In Re Dickens: The nature of this common law right protection was fully discussed in the recent case of Re Dickens, in which the question at issue was whether the common law right in an unpublished manuscript passed under a bequest, taking effect before the passing of the Act of 1911, of “all my private papers”. The Court of Appeal, after 179

Scrutton, T.E. (1903), The Law of Copyright, 4th edn, London: Clowes and

Sons. 180 For example, Romer LJ, commenting upon Millar observed: ‘The observations made by Lord Mansfield in delivering judgment in [that] case are of the greatest importance as they are of the highest authority’; In Re Dickens, pp. 292–93. 181 Ibid., p. 305.

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considering the judgments in the cases of Millar v. Taylor, Mansell v. Valley Printing Co., and MacMillan & Co. v. Dent, were unanimously of the opinion that the right was an incorporeal right existing independently of the property in the manuscript … The new act has, however, abolished common law copyright, and confers statutory copyright upon all works as from the date upon which they are made.182

182 Skone James, F.E. (1936), Copinger on the Law of Copyright, 7th edn, London: Sweet & Maxwell, p. 21.

‘In almost every case in which the law does anything for a man’s benefit or advantage, men are apt to speak of it, on some occasion or other, as conferring on him a sort of property …’ Jeremy Bentham, Introduction to the Principles of Morals and Legislation

‘The right of first publication arises out of the nature of the thing …’ Horace Ball, The Law of Copyright and Literary Property

4.

Theory I: what copyright isn’t … or, conceiving the public domain

INTRODUCING THE PUBLIC DOMAIN In his work exploring the psychology of the way in which we look at and engage with visual art, Darian Leader begins by recounting the story of the theft of the Mona Lisa on 21 August 1911.1 On this Monday morning (Monday being the day on which the Louvre closed every week), Vincenzo Peruggia, an employee of the museum, left with the painting concealed under his smock. News of the theft generated sustained national and international attention for over 2 years, during which the whereabouts of the painting remained a mystery. It was finally recovered when, in November 1913, Peruggia sent a letter to the Italian art dealer, Alfredo Geri, offering to sell him the work. He travelled to Florence to complete the transaction, was captured, and the painting was returned to the Louvre on 20 December 1913. More remarkable than the length of time it took to recover the painting, is the fact that, during the time the image was absent from the museum, huge crowds flocked to see, not the painting, but the space upon the wall where Leonardo’s work once hung. Hoards of people, many of whom had never been to the Louvre before, nor indeed had ever seen the Mona Lisa, came not to see the painting but to see its absence, or as Le Figaro put it, the ‘enormous, horrific, gaping void’.2 For Leader, the fact that the painting was no longer there encouraged people to look at things differently, to see things anew. Leader draws upon Jacques Lacan and his work on the relevance of sublimation in positing a zone of emptiness, a void that is constitutive of our becoming human; that is, a place which is always beyond that which we can represent or give meaning to. He writes: There are … two sides to Lacan’s concept. On the one hand, the idea of a traumatic aspect to early experience that we cannot grasp directly in terms of representations

1 Leader, D. (2002), Stealing the Mona Lisa: What Art Stops us from Seeing, London: Faber & Faber. 2 Le Figaro, 5 January 1914, quoted in ibid., p. 67.

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or meanings; and, on the other, the idea of an empty space created by this failure at the level of representations and meanings. If the first aspect means we don’t want to go there, the second aspect means that we are none the less drawn towards it. The empty space comes to incarnate what we are separated from, what we have lost in our passage through infancy and childhood. Our desires will circle it, and the less we can grasp it, the more powerful its gravitational pull.3

This, of course, is no more than a fancy way of introducing a chapter on how we think about and define that which is not copyright. Copyright in any given work we know comes into existence from the point of creation. For literary, dramatic, musical and artistic works, the term of protection lasts for the lifetime of the author plus 70 years after his death.4 Following this period, more often than not, we talk about the copyright expiring, or coming to an end; that is, copyright, as property right, no longer exists. We are left with a work absent copyright protection. When this happens the work is often said to enter the public domain and it is this concept with which this chapter is primarily concerned. Two questions then: (1) what is the nature of the public domain and how can (or should) we describe it?, and, (2) why bother trying to describe it, or rather why is it significant? The emergence of contemporary scholarship on the public domain can be traced to the publication of David Lange’s seminal work ‘Recognizing the Public Domain’.5 In that piece, Lange makes no real attempt to define the public domain per se (leaving that to such scholarship as might follow) but does note that ‘the public domain tends to appear amorphous and vague, with little more of substance in it than is invested in patriotic or religious slogans on paper currency’.6 This ‘impression of insubstantiality’ has been remarked upon by others, neatly summarised by Pamela Samuelson’s recent observations that the public domain resembles an: [U]ncharted terrain. Sometimes it seems an undifferentiated blob of unnamed size and dimensions … a vast and diverse assortment of contents. The public domain is, moreover, different sizes at different times in different countries … The public domain also has some murky areas. For example, some intellectual creations are, in theory, in the public domain, but for all practical purposes, do not really reside there.7

3

Supra n. 1, p. 59. Copyright Designs and Patents Act 1988, c. 48 (hereafter CDPA), s. 12. 5 Lange, D. (1981), ‘Recognizing the Public Domain’, Law & Contemp. Probs, p. 147. See, however, the earlier work of Krasilovsky, M.W. (1967), ‘Observations on Public Domain’, Bulletin of the Copyright Society, p. 205. 6 Lange, supra n. 5, p. 177. 7 Samuelson, P. (2003), ‘Mapping the Public Domain: Threats and Opportunities’, Law & Contemp. Probs, pp. 147 and 148. 4

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This conceit of the public domain as nebulae, a space without form or clearly defined boundaries, is perhaps to be expected. After all, as a concept, the public domain rarely receives any attention from intellectual property lawyers,8 and even when it does, it often amounts to no more than an afterthought (literally) – it is that which is left when intellectual properties expire or are abandoned – a negative space, a ‘legal residue drained of positive proprietary rights’.9 To return to Leader (and so to Lacan) the empty space, the void, is often that which we cannot represent. This lack of conceptual clarity is compounded by the fact that many who write about the public domain often do so without attempting to provide any definition of their subject matter,10 as well as by those who use the phrase (albeit knowingly) interchangeably with other equally imprecise and/or undefined terms such as the ‘commons’ (with variations on the theme: the ‘commons of the mind’, the ‘intellectual commons’, and the ‘informational commons’) or simply the ‘public sphere’.11

8 Jessica Litman, in her influential work on the public domain, notes that ‘[a]lthough the public domain is implicit in all commentary on intellectual property, it rarely takes center stage. Most of the writing on the public domain focuses on other issues: Should the duration of copyright be extended? Should we recognize new species of intellectual property rights? Should federal intellectual property law cut a broad preemptive swathe or a narrow one? Copyright commentary emphasizes that which is protected more than it discusses that which is not’; Litman, J. (1990), ‘The Public Domain’, Emory Law Journal, pp. 965 and 977. 9 Sherman B. and Thomas, J. (1998), ‘Introduction’, Journal of Law and Information Science (Special Edition), p. 5. 10 See for example: Cramer, E.M. and Block, L. (1991–92), ‘Public Domain: Available but not Always Free’, Fordham Ent. Media & Intellectual Property Law F., p. 1; Akoi, K. (1993–94), ‘Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain, Part I’, Columbia Journal of Law and the Arts, p. 1; Akoi, K. (1993–94), ‘Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain, Part II’, Columbia Journal of Law and the Arts, p. 191; Schiffman, S.M. (1996), ‘Movies in the Public Domain: A Threatened Species’, Columbia Journal of Law and the Arts, p. 663; Bott, C.M. (1998–99), ‘Protection of Information Products: Balancing Commercial Reality and the Public Domain’, U. Cin. L. Rev., p. 237; Griffiths, J. (2000), ‘Copyright in English Literature: Denying the Public Domain’, European Intellectual Property Review, p. 150; Rose, C.M. (2003), ‘Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age’, Law & Contemp. Probs, p. 89. 11 See for example: Litman, supra n. 8; Jaszi, P. (1996), ‘Goodbye to all that – A Reluctant (and perhaps premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law’, Vand J Transnat’l L, p. 595; Van Caenegem, W. (2002), ‘The Public Domain: Scientia Nullius?’, European Intellectual Property Review, p. 324; Oddi, A.S. (2002–03), ‘The Tragicomedy of the Public Domain in Intellectual Property Law’, Hastings Comm. & Ent. Law Journal, p. 1; Boyle, J. (2003), ‘The Second Enclosure Movement and the Construction of the Public Domain’,

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There are, however, those who have attempted to provide the public domain with some definitional boundaries, whether in relation to copyright in particular, or intellectual property in general. Perhaps the most common (and least complicated) is that which resonates with the notion of the public domain as negative space, that which is left over when intellectual properties cease to be; that is, it consists of works that are no longer in the copyright term,12 the ‘sphere in which contents are free from intellectual property rights’,13 or that which is ‘left over after intellectual property had finished satisfying its appetite’.14 Others have provided more subtle (and arguably more accurate) definitions, that move beyond those works that no longer receive legal protection and incorporate those aspects of works which intellectual property doctrine does not protect. In relation to copyright, these might include an insubstantial part of a work,15 or the statutorily defined ‘acts permitted in relation to copyright works’,16 and so on.17 Still others have suggested that to adopt such an overtly legalistic approach is, perhaps, to miss the point about what the public domain should be. For Lange, for example, ‘it should be a place of sanctuary for individual creative expression, a sanctuary conferring affirmative protection against the forces of private appropriation that threatened such expression’.18 Law & Contemp. Probs, p. 33; Lange, D. (2003), ‘Reimagining the Public Domain’, Law & Contemp. Probs, p. 463. 12 Samuels, E. (1993), ‘The Public Domain in Copyright Law’, Journal of the Copyright Society of the USA, p. 137; Hall, J.L. (1995), ‘Blues and the Public Domain – No More Dues to Pay?’, Journal of the Copyright Society of the USA, p. 215; Martin, S.M. (2002), ‘The Mythology of the Public Domain: Exploring the Myths Behind Attacks on the Duration of Copyright Protection’, Loyola of Los Angeles Law Review, p. 253; Van Caenegem, supra n. 11, p. 324. 13 Samuelson, supra n. 7, p. 149. 14 Lange, supra n. 11, p. 465. 15 CDPA s. 16(3)(a). 16 CDPA ss 28–76. 17 Litman, supra n. 8. See also: Hawkins, C. (1998), ‘Technological Measures: Saviour or Saboteur of the Public Domain?’, Journal of Law and Information Science, p. 45; Uhlir, P. (2003), Draft Policy Guidelines for the Development and Promotion of Public Domain Information, Paris: UNESCO; Benkler, Y. (1999), ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain’, New York University Law Review, p. 354. Benkler, for example, defines the public domain in the following terms: ‘The public domain is the range of uses of information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged’; ibid., p. 362. For an excellent summary of the positions these various scholars have adopted, and the differences between them, see generally Boyle, supra n. 11. 18 Lange, supra n. 11, p. 466. He continues: ‘Intellectual property can go on being intellectual property, reformed or otherwise. Meanwhile, the public domain can and should be envisioned as a thing apart, and strengthened accordingly’; ibid., p. 474. See

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One response to this variety of definitional approaches is to acknowledge, as Jamie Boyle does, that the public domain is ‘a concept that is considerably more slippery than many of us realize’, and that as such it ‘will change its shape according to the hopes it embodies, the fears it tries to lay to rest, and the implicit vision of creativity on which it rests’. In short, ‘there is not one public domain, but many’.19 No doubt Boyle is correct in this regard; there are probably as many ways to conceive of, and engage with the notion of the public domain as there are ways of reading that famously enigmatic smile which to this day hangs behind bullet-proof glass in a museum in Paris.20 Rather than try to grapple with various conflicting or complementary interpretations of the public domain, Boyle suggests that we consider the public domain in the abstract, as symbolic of many and varied individual fights, unified by concerns about recent trends in intellectual property expansionism as well as hopes for the future of the creative process.21 Patterson and Lindberg, in their work The Nature of Copyright: A Law of User’s Rights, made a similar appeal just over 10 years previously, when they encouraged us to consider the public domain not as a ‘territory’ but rather as a concept: ‘[T]here are certain materials – the air we breathe, sunlight, rain, ideas, words, numbers – not subject to private ownership. The materials that compose our cultural heritage must be free for all to use no less than matter necessary for biological survival’.22 That is all well and good; however, to champion the public domain as an abstract if powerful and necessary concept runs the risk of reaffirming the already prevalent perspective of the public domain as chimera, as too slippery, too imprecise to warrant any coherent and detailed consideration. What follows then, is not an exegesis of the public domain in Boyle’s mould, but rather a commentary which, drawing upon the work of others, takes as its point of departure the relationship between the public domain and one branch of intellectual property law only – copyright. Consider for example a simple if fundamental difference between patent and copyright protection: with patents, what receives protection is the new and inventive idea; by also Oddi’s conception of the public domain as being in the first instance a ‘source of sensory stimuli (which will be termed the “public-domain-as-stimuli” thesis) and only secondarily as some sort of “intellectual commons”, where all may freely exploit its contents’; Oddi, supra n. 11, p. 8. 19 Boyle, supra n. 11, pp. 52 and 62. 20 In April 2005 the painting was moved to a new exhibition space – an airtight unbreakable glass case set into one of the walls within the Louvre’s recently refurbished Salle des Etats. 21 Boyle, supra n. 11, p. 73. 22 Patterson L.R. and Linberg, S.W. (1991), The Nature of Copyright: A Law of User’s Rights, Athens, US and London, UK: University of Georgia Press, p. 51.

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contrast, one of the fundamental doctrines of copyright law is that copyright subsists not in ideas but only in the expression of those ideas. From this very basic doctrinal point of view, patent law’s public domain and copyright law’s public domain remain entirely at odds with one another. The intellectual property lawyer may well argue that one should consider the public domain in the round, but as suggested above, to do so may simply prove too problematic. Instead, to break our investigation of the public domain into various constituent parts (corresponding with various intellectual properties, or indeed other areas of the law, such as breach of confidence) allows for a more accurate conception of what is meant by the public domain within these separate, if related, contexts. It should also throw up some insights into the particular intellectual property under investigation, as well as allowing us to explore, with greater clarity and precision, the nature of, and interplay between, various related concepts such as the public domain itself, that which is in the public interest, and what might be more broadly described as the intellectual commons. Again then: how to describe the public domain? We can split this into two separate enquiries: (1) what does it mean to speak of a work being in the public domain?, and (2) what works, or indeed aspects of a work, are in the public domain?

UNDERSTANDING COPYRIGHT’S PUBLIC DOMAIN Setting Lange’s concerns about an overly legalistic approach to conceiving the public domain (that is a text primarily for lawyers after all),23 we might well begin with the proposition that copyright as an institutional phenomenon functions by conferring upon the owner of the copyright in a work a bundle of rights (referred to within the UK as the ‘acts restricted by copyright’), which rights enable that owner to prevent others from using the work, in certain ways,24 without first asking for permission to do so. Such is the position for so long as the work remains in copyright. This might usefully be described as the private domain of that which is copyright protected,25 and if copyright 23

Supra n. 18 and accompanying text. At present this involves reproducing, distributing, renting, performing, and communicating the work, or making an adaptation of the work, or doing any of the above in relation to an adaptation of the work; CDPA s. 16(1); it is important to remember, however, that not all uses are prohibited in relation to every type of copyright protected work. 25 Obviously any type of use which does fall with the acts restricted by copyright cannot be considered to fall within the private domain – that is, the copyright owner has no legal authority to prevent anyone using their work in that particular way. To take a relatively recent example: with the implementation of the Rental Rights Directive 24

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Copyright Protected

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Public Domain

Figure 4.1 regulates the ability to make use of the work, then the public domain represents that area wherein no one individual can claim any better right to use or control any given intangible work. This then provides us with our first touchstone for understanding copyright’s public domain: that is, if the institution of copyright necessitates permission before use, then the public domain allows for use without the need for permission (Figure 4.1).26 This is not to say however, as some have suggested, that with the creation of a private domain of copyright protection, so the public domain was (92/100/EEC) in the UK, the acts restricted by copyright were extended to include the ability of the copyright owner to prevent anyone renting or lending literary, dramatic, musical or artistic works to the public; CDPA, s. 16(1)(ba). Prior to this, the rental right did not exist in relation to this category of copyright works. 26 Clearly this would include those works which, for whatever reason, fail to qualify as copyright protected in the first place. For example, in relation to works of literature, music, drama and art, the work may not attract copyright protection as it does not satisfy the threshold of originality set out in CDPA s. 1(1)(a). We should, of course, acknowledge at this point that there are owners of copyright materials who dedicate their work to the public; that is, they willingly waive what rights they have to control the use of the copyright work. As such, although the works are still legally within the private domain, de facto they fall within the public domain (indeed one might well refer to this as the de facto public domain). Consider for example the success of the OpenSource movement or the Creative Commons project (www.creativecommons.org). It is important to remember, however, that these materials only reside within the public domain as a result of a wide-ranging a priori permission – there is no need to ask for permission to use, as permission has already been granted. In this way the concept of use without the need for permission remains the appropriate touchstone, in terms of legal doctrine, for distinguishing between the private and the public domain.

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simultaneously brought into existence.27 While the rhetoric of copyright and the public domain may well be interdependent, if historically contingent,28 the actuality of the public domain did in fact pre-date copyright. Consider for example the 15 years between the lapse of the seventeenth-century Licensing Acts in Britain (May 1695) and the passing of the Statute of Anne (April 1710). During this time there existed no legal regulation of works of literature at all (within the context of intellectual property).29 Three hundred years ago, in 1706, no-one needed to ask anyone else for permission to reprint, publish, sell, or indeed do anything with any given literary text; every work already in existence, and every work created at this time (and people did still create regardless of the absence of any legal protections for their work) were free for all to use.30 In short, the public domain did exist prior to the 27 For example, Mark Rose, in his excellent piece on the rhetoric of the public domain, suggests that ‘[c]opyright and the public domain were born together’; Rose, M. (2003), ‘Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain’, Law & Contemp. Probs, p. 75. Rose is, of course, right to warn us against ‘projecting into the past an idyll of communality from which we have supposedly declined’; ibid. It is certainly the case that the circulation of printed material was from the time of the establishment of the Stationers’ Company in 1557 until the lapse of the Licensing Act 1662 (in 1695) subject to some form of regulation. Again, this simply illustrates that, absent some form of parliamentary or sovereign intervention, intellectual goods, such as works of literature, art, and so on, would otherwise exist within the public domain. That is, as was the case between May 1695 and April 1710, prior to the establishment of the Stationers’ Company by Royal Charter in 1557, printed materials were public domain. In general see also Boyle, J. (2003), ‘The Opposite of Property?’, Law & Contemp. Probs, p. 1. 28 For a commentary upon the history of the use and significance of the term ‘public domain’ within American legal jurisprudence see Ochoa, T.T. (2002–03), ‘Origins and Meanings of the Public Domain’, University of Dayton Law Review, p. 215. 29 For more on this period see Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain, 1695–1775, Oxford: Hart Publishing. See also: Patterson, L.R. (1968), Copyright in Historical Perspective, Nashville: Vanderbilt University Press; Ransom, H. (1956), The First Copyright Statute, Austin: University of Texas; Rose, M. (1993), Authors and Owners: The Invention of Copyright, London: Harvard University Press; Loewenstein J. (2002), The Author’s Due: Printing and the Prehistory of Copyright, London: University of Chicago Press; Crist, T. (1979), ‘Government Control of the Press After the Expiration of the Printing Act in 1679’, Publishing History, p. 49; Astbury, R. (1978), ‘The renewal of the Licensing Act in 1693 and its Lapse in 1695’, The Library, p. 296; Treadwell, M. (2002), ‘The Stationers and the Printing Acts at the End of the Seventeenth Century’, in Barnard J. and McKenzie, D.F. (eds), The Cambridge History of the Book in Britain, Volume IV, 1557–1695, Cambridge: Cambridge University Press, pp. 755–76. 30 Subject, that is, to whatever other (non-legal) pressures those printers and booksellers who dominated the book trade could bring to bear upon book production in general.

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introduction of a legal mechanism for controlling use in the guise of the 1709 Act. One obvious problem with this initial conceit of use without permission is that it fails to accommodate the fact that once a work has been published it necessarily enters a public arena; that is, it has ceased to exist within the individual realm of the author and instead has entered a public cultural space (let us call this the intellectual commons). The distinction outlined above turns upon the notion of the ability to make any use of a work without permission. This second consideration touches not upon freedom to use a work, but upon the work being publicly accessible. An author’s book may be public in the sense that we now have the ability to access and engage with the work (whether at a financial cost or not) and yet we may remain restricted in terms of how we are able to make use of that work in that the rules of copyright will still operate to prevent us from freely copying, distributing, renting, performing, broadcasting or adapting the work. As such, it is useful to distinguish between that which has been made public (in the sense of residing within the intellectual commons) and that which is public domain. A work may have been made public but it will also be either copyright protected or public domain (Figure 4.2). THE INTELLECTUAL COMMONS

Copyright Protected

Public Domain

Figure 4.2 Maintaining this distinction between the public domain and the intellectual commons turns upon a coherent appreciation of the difference between the two related concepts of access to and use of a work. Implicit in this distinction, however, is the fact that there will also remain a realm of material that may never enter the intellectual commons at all (let us call this the undisclosed domain). An example might be that of someone who keeps a diary; their

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personal entries in the diary would almost certainly be copyright protected, but are almost equally certain never to be made public. To use another example: take a blank page and a pencil; draw something on the page, perhaps a cat or a hat, a fox or some socks. Then, photograph the page with the drawing on it, remove the film from the camera, seal it in a watertight box and bury it in the garden. Finally, destroy the page upon which the original drawing was made. Here we have arguably two copyright works (the original drawing and the photograph of the drawing)31 that are copyright protected from the point of creation, in around 150 countries worldwide,32 which nevertheless may never see the light of day. From the point of creation they will be copyright protected for the lifetime of the author plus a 70-year post mortem term (at the time of writing at least – there is surely no guarantee that the copyright term may not be subsequently extended). After this period has expired the works will pass into the public domain.33 However, at no point will they necessarily fall within the intellectual commons. The material does not enter the intellectual commons because it is never disclosed. It remains always private to the individual (or lost, forgotten, destroyed, and so on). In this regard the intellectual commons concerns only that which has been made public, while the public domain embraces both published and unpublished works (Figure 4.3). This initial set of distinctions articulated in Figure 4.3, between that which can be used without permission and that which cannot, and that which is published and that which is not, can perhaps be said to best represent the predominant conception of the public domain – that which falls ‘outside’ the private domain of the intellectual property system.34 In this conception, the public domain will consist of two types of work: (1) those works which fail to meet whatever threshold requirements have been stipulated before protection will be attributed to them (or more simply, those which do not qualify for protection in the first place) – in the case of copyright, 31 On the question of the copyright in photographs of two-dimensional works of art see Garnett, K. (2000), ‘Copyright in Photographs’, European Intellectual Property Review, p. 229 and Deazley, R. (2001), ‘Photographing Paintings in the Public Domain: A Response to Garnett’, European Intellectual Property Review, p. 179. 32 As a result of the principle of national treatment; see A.5 of the Berne Convention. 33 Note, however, the protection for previously unpublished works provided for in the European Copyright Duration Directive, 93/98/EEC, which sets out in A.4 that: ‘Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public’. 34 Supra n. 12 and accompanying text.

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THE INTELLECTUAL COMMONS

Copyright Protected

Public Domain

Undisclosed

Undisclosed

Figure 4.3 the non-original literary, dramatic, musical or artistic work;35 and (2), for those intellectual properties that are time-limited, such as copyright, those works whose periods of protection have expired.36 As a working description of copyright’s public domain however, these distinctions are overly simplistic. In relation to copyright works, if the touchstone of the public domain is use without permission then, as Litman reminds us,37 the public domain must also incorporate those aspects or features of a copyright protected work that nevertheless do not require permission prior to such use.38 The question now 35

CDPA s. 1(1)(a). Of course different copyright protected works have different terms of copyright protection; compare for example the protection for an original literary work (CDPA s. 12) with that for the typographical arrangement of a published edition (CDPA s. 15). 37 Supra n. 8. 38 Naturally, not everyone agrees with this analysis. Edward Samuels writes that ‘[i]t is a misapplication of the concept of the public domain to think of every limitation upon the exclusive rights of copyright as creating a limited public domain. Indeed, one of the commonly recognized aspects of the public domain is that it represents a body of works that the public is free to use. The right to make limited use of a work that is otherwise subject to restrictions is the hallmark of copyrighted works: after all, every copyright is only a set of rights subject to the right of the public to make at least some use of the work. For example, the public has a right to make what would be a fair use of a copyrighted work: that does not create a separate “public domain”. What this does is recognize a public interest even in copyrighted works, which interest can be recognized by the creation of limits upon the exclusive rights of copyright’; Samuels, supra n. 12, p. 166. 36

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is: which aspects of a copyright protected work is any individual free to use without having to ask the copyright owner for permission? In the first place we need to make mention of the oft-cited doctrine that copyright does not subsist in ideas but only in the manner in which those ideas are expressed. This idea–expression dichotomy has never received explicit mention within copyright’s legislative framework (within the UK at least),39 but rather grew out of the various debates in the mid-eighteenth century as to the nature of property, as well as the manner in which copyright sat within that broader context. In the words of one commentator from that time: [H]e who obtaineth my copy may appropriate my stock of ideas, and by opposing my sentiments, may give birth to a new doctrine; or he may coincide with my notions, and by employing different illustrations, may place my doctrine in another point of view: and in either case he aquireth an exclusive title to his copy, without invading my property: for though he may be said to build on my foundation, yet he rears a different superstructure.40

Implicit then, within the very concept of copyright, is the fact that the ideas expressed within any author’s work are not copyright protected, and so fall within the public domain. This then brings us to one of the primary virtues of the public domain itself. Again, as Litman comments: All works of authorship, even the most creative, include some elements adapted from raw material that the author first encountered in someone else’s work … If each author’s claim to own everything embodied in her work were enforceable in court, almost every work could be enjoined by the owner of the copyright in another … Because we have a public domain, we can permit authors to avoid the harsh light

39 Compare the US copyright provisions which make express reference to this dichotomy; 17 USC §102(b) states: ‘In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work’. 40 Anon. (1762), A Vindication of the Exclusive Right of Authors, to their own works: A subject now under consideration before the 12 judges of England, London: Griffiths. Similarly, Francis Hargrave wrote as follows: ‘Every man has a mode of combining and expressing his ideas peculiar to himself … The same doctrines, the same opinions, never come from two persons, or even from the same person at different times, clothed wholly in the same language … there is such an infinite variety in the modes of thinking and writing, as well as in the extent and connection of ideas, as in the use and arrangement of words, that a literary work really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity’; Hargrave, F. (1774), An Argument in Defence of Literary Property, reprinted in Parks, S. (ed.) (1974), Four Tracts on Freedom of the Press, 1790–1821, New York, US and London, UK: Garland Publishing.

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of a genuine search for provenance, and thus maintain the illusion that their works are indeed their own creations.41

That is, in ensuring that ideas, generic plots, themes and so on, as well as certain unoriginal materials,42 remain outside the private domain, the public domain enables the very process of authorial creation itself. If, as Sir Hugh Laddie pithily observes, ‘the whole of human development is derivative’,43 without the public domain copyright itself would not be viable. As to the remaining types of use without permission, these can be separated into two main categories: such uses as are set out within the copyright’s statutory regime; and those uses which are not, but which are otherwise permissible as a result of judicial intervention with that statutory regime. As to the first category, within the UK, there are two types of use to bear in mind: first, use of an insubstantial part of a work;44 and secondly, any use which falls within the statutorily defined ‘acts permitted in relation to copyright works’.45 The latter category is clearly the more significant of the two, allowing for use without permission in a wide range of different and varied contexts. For example: for non-commercial research;46 for private 41 Litman, supra n. 8, pp. 1011–12. Yates J in Millar v. Taylor (1768) 4 Burr 2303 worried about the potential impact a perpetual common law right might have upon the creative process, and the continued production of literature, in noting ‘the dangerous snares which this ideal property will lay, as it carries no proprietary marks in itself; and is not bound to any formal stipulations. So obscure a property (especially after the work has been along while published) might lead many booksellers into many litigations; and in such litigations, many doubtful questions might arise … Disputes might also arise among authors themselves – “whether the works of one author were or were not the same with those of another author; or whether there were only colourable differences:” – (a question that would be liable to great uncertainties and doubts) … I wish as sincerely as any man, that learned men may have all the encouragements that are consistent with the general right and good of mankind. But if the monopoly now claimed be contrary to the great laws of property … if it will tend to embroil the peace of society, with frequent contentions; – (contentions most highly disfiguring [to] the face of literature, and highly disgusting to a liberal mind;) if it will hinder and suppress the advancement of learning and knowledge … I can never concur in establishing such a claim’; ibid., p. 2394. 42 Jaszi writes that the originality requirement ‘can be understood to represent an aspect of the fundamental notion of a public domain, guaranteeing the existence of an informational commons of accessible material beyond the reach of copyright’; Jazsi, supra n. 11, p. 605. See also Smith, Marlin H. (1992–93), ‘The Limits of Copyright: Property, Parody, and the Public Domain’, Duke Law Journal, p. 1233. 43 Laddie, H. (1996), ‘Copyright: Over-strength, Over-regulated, Over-rated?’, European Intellectual Property Review, pp. 253 and 259. 44 CDPA s. 16(3)(a). 45 CDPA ss 28–76. 46 CDPA s. 29(1).

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study;47 for the purposes of criticism or review,48 or for reporting current events;49 in certain educational contexts,50 to facilitate library and archival work,51 in the interests of public administration,52 as well as a range of additional miscellaneous situations.53 Moreover, while a number of these permitted uses pertain only to a part of the copyright work,54 or mandate that the use be considered to be fair dealing,55 some categories simply allow for the use of the work in its entirety.56 Of course, it goes without saying that the parameters of these statutorily defined permitted acts do not remain static. For instance, consider some of the changes implemented by the Copyright and Related Rights Regulations 2003.57 Whereas, on 30 October 2003, copying certain material58 in the course of instruction (or in preparing a course of instruction) did not infringe so long as the copying was performed by someone either giving or receiving instruction, and was not by way of a reprographic process,59 on 31 October 2003, where the material being copied had been made available to the public, then the person copying the work also had to establish that their use was fair dealing and accompany the reproduction with a sufficient acknowledgement.60 Similarly, fair dealing with a work for the purpose of criticism or review was altered so that it is now only permissible in relation to works that have been made available to the public.61 Clearly, 47

CDPA s. 29(1C). CDPA s. 30(1). 49 CDPA s. 30(2). 50 For example, for the purposes of instruction or examination; CDPA s. 32. 51 For example, in supplying copies of periodical articles to library users engaged in research or private study; CDPA s. 38. 52 For example, for the purposes of parliamentary or judicial proceedings; CDPA s. 45. 53 For example, to facilitate public recitations from literary or dramatic works or the representation of certain artistic works on public display; CDPA ss 59 and 62. 54 CDPA s. 39. 55 CDPA s. 30(1). 56 For example, performing a literary, dramatic or musical work before an audience of teachers and pupils at an educational establishment; CDPA s. 34. 57 Copyright and Related Rights Regulations 2003, SI 2003/2498; these Regulations were designed to implement the provisions of the European Information Society Directive, 2001/29/EC. 58 In this case: literary, dramatic, musical and artistic works. 59 CDPA s. 32(1), pre 31 October 2003. 60 CDPA s. 32(2A). 61 CDPA, s. 30(1). In this regard, whether a work has been made available to the public, includes: ‘(a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing the work in public; (e) the communication to the public of the work’; s. 30(1A). 48

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as the statutory regime shifts, so too do the boundaries of the public domain.62 Turning to the second general category of use without permission – those uses which are permissible as a result of judicial intervention with that statutory regime – we can, once again identify two different types of use to bear in mind: use of works which the courts refuse to protect on grounds of public policy; and any use of copyright protected works which, while they do not fall within the permitted acts, are nevertheless considered to be in the public interest. The first category is of long-standing tradition; the second represents a more recent innovation. With regard to the first category, following the Statute of Anne, one of the first copyright cases to come before the courts was that of Burnet v. Chetwood (1721) (Burnet) which concerned an English edition of Dr Thomas Burnet’s latin treatise Archaeologia Philosophica. Merivale, reporting the case nearly one hundred years after it first came to Court, notes that the defendant’s argument turned on the fact that ‘a translation of a book was not within the intent of ’ the statute.63 Lord Chancellor Macclesfield was sympathetic to the argument that a translation of a work was not an infringement within the terms of the 1709 Act. However, he continued that the book contained ‘strange notions’ which should not be made available in the ‘vulgar’ tongue (that is, in English). Rather, he considered it should remain in Latin only ‘in which language it could not do much hurt, the learned being better able to judge’ the work. Asserting that the court had ‘a superintendency over all books, and might in a summary way restrain the printing or publishing any that Consider for example one of the twentieth century’s most quotable copyright cases par excellence: Hubbard v. Vosper [1977] 2 QB 84. If the fact situation in that case were to reoccur under the current statutory regime so that the defendant had been required to establish that the works in question (various bulletins and letters written by L Ron Hubbard, the founder of the Church of Scientology, and circulated to a limited number of members of that order) had been ‘made available to the public’ it seems much less likely that the statutory defence would succeed. For various commentaries upon the Information Society Directive see: Bainbridge, D. (2002), ‘Implementing the Directive on Copyright in the Information Society’, Intellectual Property and Information Technology Law, p. 9; Hart, M. (2002), ‘The Copyright in the Information Society Directive: An Overview’, European Intellectual Property Review, p. 58; Heide, T. (2002), ‘The Approach to Innovation Under the Proposed Copyright Directive: Time for Mandatory Exceptions?’, Intellectual Property Quarterly, p. 215; Kretschmer, M. (2003), ‘Digital Copyright: The End of an Era’, European Intellectual Property Review, p. 333; Vinje, T. (2000), ‘Should We Begin Digging Copyright’s Grave?’, European Intellectual Property Review, p. 551; Wiese, H. (2002), ‘The Justification of the Copyright System in the Digital Age’, European Intellectual Property Review, p. 387. 62 See Chapter 5 n. 33–79 and accompanying text. 63 Burnet v. Chetwood (1721) 2 Mer 441.

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contained reflections on religion or morality’, he granted the plaintiff his injunction.64 Since this time the courts, within the UK at least, have ever assumed the ability to adjudicate upon the dissemination and protection of copyright material in a manner which functions outside the bounds of the statute, but falls within their inherent jurisdiction at common law. In Burnet this took the unusual form of granting an injunction to prevent the publication of a work that did not in fact infringe the copyright in any other work. More typically, the courts have tended to exercise this inherent jurisdiction by refusing a claimant relief on the grounds that the content of the claimant’s work is obscene or sexually immoral, defamatory, blasphemous or irreligious.65 The somewhat counterintuitive result of this judicial refusal to protect what would be otherwise copyright protected,66 is that anyone is free to make use of such materials without permission, safe in the knowledge that the courts will not grant relief to author of those materials – de facto, they reside within the public domain. As to the second category, the notion that the courts can authorise the use of a work which would otherwise amount to copyright infringement (so long as that use can be considered to be in the public interest) dates from the more contemporary, if somewhat tentative, foundations laid down in Lion Laboratories v. Evans [1985].67 It has, however, recently received a more substantive and coherent rationale with the coming into force of the Human Rights Act 199868 and the decision of the Court of Appeal in Ashdown v. Telegraph Group [2002] (Ashdown).69 In short, within the context of a discussion concerning the balance between

64

Ibid. See for example: Southey v. Sherwood (1817) 2 Mer 435 (Southey); Murray v. Benbow (1822) The Times, 2 February 1822; Lawrence v. Smith (1822) Jacob 471; Murray v. Dugdale (1823) The Times, 22 July 1823; Stockdale v. Onwhyn (1826) 5 B&C 174; Norton v. Churton (1835) The Times, 16 July 1835; Glynn v. Weston Feature Films [1916] 1 Ch 261; AG v Guardian (No. 2) [1990] 1 AC 109; Hyde Park v. Yelland [2001] Ch 143. 66 Lord Chancellor Eldon recognised as much in Southey: ‘It is very true that, in some cases, [the decision] may operate so as to multiply copies of mischievous publications by the refusal of the Court to interfere by restraining them; but to this my answer is, that, sitting here as a Judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties except as it relates to their civil interests; and if the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it’; ibid., pp. 439–40. 67 Lion Laboratories v. Evans [1985] QB 526. 68 Human Rights Act 1998, c. 42. 69 Ashdown v. Telegraph Group [2002] Ch 149. 65

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securing a copyright owner’s property rights, as against the right for copyright users to freely express themselves, Phillips MR in Ashdown first accepted that copyright amounts to a restriction on the ability of individuals to freely express themselves (albeit using the words of another).70 He then continued that while ‘in most circumstances, the principle of freedom of expression will be sufficiently protected if there is a right to publish information and ideas set out in another’s literary work, without copying the very words which that person has employed to convey the information or express the ideas’,71 nevertheless: There will be occasions when it is in the public interest not merely that information should be published, but that the public should be told the very words used by a person, notwithstanding that the author enjoys copyright in them. On occasions, indeed, it is the form and not the content of a document which is of interest.72

That is, ‘rare circumstances’ might arise where someone’s right to freely express themselves may well conflict with the copyright owner’s rights notwithstanding the existence of the various permitted acts set out within the copyright legislation, and when they do the court is free to consider whether an individual’s right to freedom of expression is being properly accommodated. Should such ‘rare circumstances’ arise, Phillips MR considered that there existed no reason as to why these might not fall under the rubric of use within the common law public interest defence.73 He did stress, however, that these situations would not arise with any great frequency: ‘We do not see this leading to a flood of litigation’.74 70 Phillips MR commented in the following terms: ‘The infringement of copyright constitutes interference with “the peaceful enjoyment of possessions”. It is, furthermore, the interference with a right arising under a statute which confers rights recognised under international convention and harmonised under European law … There is thus no question but that restriction of the right of freedom of expression can be justified where necessary in a democratic society in order to protect copyright. The protection afforded to copyright under the 1988 Act is, however, itself subject to exceptions. Thus both the right of freedom of expression and copyright are qualified. This appeal raises the question of how the two rights fall to be balanced, when they are in conflict’; Ashdown, pp. 162–63. 71 Ibid., p. 165. 72 Ashdown, p. 166. 73 He commented: ‘In the rare case where it is in the public interest that the words in respect of which another has copyright should be published without any sanction, we have been concerned to consider why this should not be permitted under the “public interest” exception, the possibility of which is recognised by section 171(3)’ of the CDPA; ibid., p. 167. 74 Ibid. See also Phillips MR’s observation that: ‘We do not consider that this conclusion will lead to a flood of cases where freedom of expression is invoked as a

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To summarise thus far: within the context of UK law, copyright’s public domain incorporates those works which do not qualify for copyright protection, those works which do but are out of the copyright term,75 as well as such use of those works which fall on the right side of the idea-expression line, which are allowed for within the statutory framework (use of an insubstantial part, the permitted acts), or which are permissible as a result of judicial intervention with that regime at common law (on public policy grounds, or as being in the public interest) (Figure 4.4). There is, however, one last gloss that we should perhaps consider at this point in relation to the various distinctions detailed in Figure 4.4. In ‘Free as the Air’, when discussing the nature of the public domain, Benkler observes: In analyzing copyright or related property rights in information, what matters is how rules affect people’s baseline assumptions about what they may and may not do with information. The particular weakness of the traditional definition of the public domain is that it evokes an intuition about the baseline, while not in fact completely describing it.76

In other words, when considering the public domain we need to bear in mind the manner in which its limits and operation are commonly perceived; regardless of the actuality of the public domain, in practice the manner in which it functions is bound up in individual perceptions of the way in which people can or cannot use those cultural products to which they have access. defence to a claim for breach of copyright. It will be very rare for the public interest to justify the copying of the form of a work to which copyright attaches’; ibid., p. 170. For more on the Ashdown decision see: Griffiths, J. (2002), ‘Copyright Law after Ashdown – Time to Deal Fairly with the Public?’, Intellectual Property Quarterly, p. 240; Birnhack, M. (2003), ‘Acknowledging the Conflict between Copyright Law and Freedom of Expression under the Human Rights Act’, Entertainment Law Review, p. 24. On the interface between copyright and human rights in general see: Birnhack, M. (2003), ‘The Copyright Law and Free Speech Affair: Making-Up and BreakingUp’, IDEA: The Journal of Law and Technology, p. 233, and the references therein; Pinto, T. (2002), ‘The Influence of the ECHR on Intellectual Property Rights’, European Intellectual Property Review, p. 209; Rushton, M. (2002), ‘Copyright and Freedom of Expression: An Economic Analysis’, in Towse, R. (ed.), Copyright in the Cultural Industries, Cheltenham, UK and Northampton, US: Edward Elgar Publishing, pp. 51–62. See also: Griffiths J. and Suthersanen, U. (eds) (2005), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press; Torremans, P.L.C. (ed.) (2004), Copyright and Human Rights: Freedom of Expression – Intellectual Property – Privacy, The Hague, Amsterdam, London, UK and New York, US: Kluwer Law International. 75 Again, we might take note of those works in relation to which permission to use has been granted by the copyright owners a priori; supra n. 26. 76 Benkler, supra n. 17, pp. 361–62.

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Ideas Copyright Protected

Insubstantial Parts

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Permitted Acts Public Policy and Public Interest

The Undisclosed Domain

Figure 4.4

Public Domain

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This is the difference between the public domain and the perceived public domain. This distinction is a useful one, but again does not change the legal reality of the public domain; rather, it highlights the need for, and value of, public education in this regard. The need for increased public education concerning intellectual property is one which has been advocated by other scholars, although rarely do they suggest education about anything other than intellectual properties per se. Consider for example Adrian Sterling’s recent suggestion that: The principles of protection of copyright and related rights should be taught at the primary, secondary and tertiary levels of education. Children in primary schools are among the major customers of protected material, and early teaching of the principles of respect for rights of others can lay a good foundation for developing awareness in this area as the educational process continues. In the final analysis, intellectual property rights will only survive if the public considers that such rights should be maintained, and the inculcation of awareness of the justification of the rights should begin at as early an age as possible.77

Children, customers, respect, inculcate; setting aside the misgivings one may have about the appropriateness of teaching the principles of intellectual property to children at all,78 such sentiments hardly hold out the promise of an education as to when individuals (whether children or not) are free to use such properties without permission. In a similar vein, in February 2002, Anthony Murphy (then Director of the UK Patent Office) spoke to the Oxford Intellectual Property Research Centre about the implementation of the European Information Society Directive warning that ‘legislation alone is not enough’ – ‘what’s needed is the development of a new attitude to copyright’. ‘It’s clear’ he observed ‘that we’re living in an age when respect for copyright, and understanding of the part copyright has to play in supporting creativity, is at a low ebb – perhaps as low as it has ever been since 1709’. The response for Murphy lies in the education of secondary school children. ‘We are trying’ he continued: [T]o bring knowledge and understanding of copyright, and of intellectual property rights in general, into the heart of the National Curriculum, working with partners 77

Sterling, A.J. (2003), World Copyright Law, London: Sweet & Maxwell, p. 926. Lange writes: ‘I think it fundamentally wrong to insist that children internalize the proprietary and moral values of the copyright system. I fear the encroachment upon the formation and growth of creativity that these values represent when they are not suitably constrained – as we cannot count upon them to be in our time … It is wrong to challenge school children with responsibility for copyright’; Lange, supra n. 11, p. 482. 78

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like the Institute for Citizenship and the National Consumer Council, and leading players in the music and leisure software industries, to develop new teaching materials in readiness for the introduction of Citizenship into our secondary schools.79

With that in mind, consider the first two sentences from the Patent Office’s web-page on the history of copyright: ‘It was not until the 1709 Statute of Anne … that copyright in books and other writings gained protection of an Act of Parliament. Prior to this, disputes over the rights to the publishing of books could be enforced by common law’.80 When the national education system is invoked to instil ‘authoritative’, albeit incorrect, truths as to the history (and social function) of copyright, increased public awareness and the need for education about the nature of the public domain assumes an ever increasing importance;81 without it, there can never be anything close to a meaningful 79 Murphy, A. (2002), ‘Queen Anne and Anarchists: can Copyright survive in the Digital Age?’, Electronic Journal of Intellectual Property Rights, available at www.oiprc.ox.ac.uk/EJWP0202.html. One manifestation of this goal has been the production of various educational resources packs (THINK kit® and THINK kit® 2) which, in the parlance of the Patent Office website, aspire to ensure that ‘children learn how important it is for business to protect their creativity in an ever expanding global economy’. The materials include various case studies, like that endorsed by the UK R&B star Jamelia, which provide interesting sound-bites such as: ‘Jamelia’s debut album ‘Drama’ was a big success. As soon as Jamelia had made her recordings, her songs were protected by copyright. Noone could copy her music without her permission … [She] can continue making and developing her music, confident in the fact that her music cannot be copied and exploited, as she is protected by copyright.’ Similarly, the resource pack sets out that ‘[a]nyone who has a new or creative or innovative idea then has the right to benefit from it’, that ‘[t]he owner of intellectual property has control over it and would expect to be rewarded for its development and use’, and that ‘[w]e would never hear new music or enjoy the performances of new artists if they did not have the security of knowing that their work could not be copied’. To be fair, as regards copyright, the materials do note in passing that ‘[m]ost uses of copyright material require permission from the copyright owner’, however, not surprisingly, the materials fail to expand upon which uses might not. Indeed, the remainder of the commentary within the ‘Music Case Study’ implies quite the reverse: ‘Everything about music CDs is protected by copyright. The images and text on the cover and the writing inside are all creations in their own right and cannot be used or copied without permission’. See THINK kit® 2 (emphasis added). At the time of writing the Patent Office estimates that about 70% of UK secondary schools have requested copies of the THINK kit® materials; see www.patent.gov.uk/about/marketing/thinkkit/index.htm. In a similar vein, see the Copyright Society of the USA’s online resource for ‘copyright kids’: www.copyrightkids.org. 80 See www.patent.gov.uk/copy/history/index.htm. 81 On public perceptions of copyright and the copyright regime see Litman J. (1991), ‘Copyright as Myth’, University of Pittsburgh Law Review, p. 235.

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synergy between that which is public domain and that which is perceived to be public domain.

EXTERNALITIES AND COPYRIGHT’S PUBLIC DOMAIN Moving from the basic relationship between copyright and the public domain, it would be foolish not to acknowledge that not only is the line between the two phenomena subject to doctrinal (or internal) development and change, but that it can also be profoundly affected by various external considerations. For our purposes these fall into two main categories: (1) physical and/or technological barriers which impact upon individuals’ opportunities for meaningful access to, and use of that which is, public domain; and (2) an increasing reliance upon the law of contract in requiring individuals to ‘contract out’ of that which they are otherwise free to do without permission (Figure 4.5). These various externalities, when overlaid upon the existing copyright regime, have considerable potential to significantly affect (that is, reduce) the shape and operation of the public domain, a prospect which has led some commentators to call for the introduction of much stronger users’ rights than have hitherto been set out within traditional copyright regimes.82 Consider first the question of meaningful access. Again, there are two main aspects to this issue: regulating physical access to public domain works; and, the impact of technological protection measures (TPMs). The first situation might involve works which lie within the intellectual commons, are no longer copyright protected, but which are, nevertheless, a scarce intellectual resource (think of a text published in the eighteenth century, the only known copy of which resides within the Advocate’s Library in Edinburgh), or are difficult to access (perhaps a seventeenth-century masterpiece owned 82 See for example: Ginsberg, J. (2003), ‘From Having Copies to Experiencing Works: The Development of an Access Right in US Copyright Law’, Journal of the Copyright Society of the USA, p. 113; Heide, T. (2003), ‘Copyright, Contract and the Legal Protection of Technological Measures – Not “The Old Fashioned Way”: Providing a Rationale to the Copyright Exceptions Interface’, Journal of the Copyright Society of the USA, p. 315; Loren, L.P. (2002), ‘Technological Protections in Copyright Law: Is More Legal Protection Needed?’, International Review of Law Computers & Technology, p. 133. In this respect one might well draw inspiration from the past; consider for example the provision included in the Fine Arts Copyright Bills of 1868 and 1869 which articulated the ‘right of any person to copy or imitate any work of fine art in which, or in the design whereof, there shall be no subsisting copyright; or to represent any scene or object, notwithstanding that there may be a subsisting copyright in some previous imitation of such work, or in some previous representation of some such scene or object’ (emphasis added).

THE INTELLECTUAL COMMONS

Ideas Copyright Protected

Insubstantial Parts

Public Domain

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Permitted Acts Public Policy and Public Interest Interference either as a result of exclusive control over the physical object, technological protection measures (TPMs), or contractual regulation

The Undisclosed Domain

Figure 4.5

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by Bill Gates), or indeed both (consider for example the Dead Sea Scrolls).83 Clearly there is significant opportunity for interplay between the ownership of the physical object, whether manuscript, book or painting, and the ability to control the subsequent use and dissemination of the text or image.84 The second, and more significant issue, has its origins in the implementation of the WIPO Copyright Treaty (WCT) Article 11 of which sets out that: Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorised by the authors concerned or permitted by law.85

In Europe, the WCT provided one of the catalysts which led to the Information Society Directive,86 A.6 of which addresses the question of TPMs,87 and, as 83 See: Birnhack, M.D. (2001), ‘The Dead Sea Scrolls: Who is an Author?’, European Intellectual Property Review, p. 128; Carson, C.A. (1995), ‘Raiders of the Lost Scrolls: The Right of Scholarly Access to the Content of Historic Documents’, Michigan Journal of International Law, p. 299; Weinstein, L.M. (1994),‘Ancient Works, Modern Dilemmas: The Dead Sea Scrolls Copyright Case’, The American University Law Review, p. 1637. 84 See for example Deazley, supra n. 31. 85 See also Art. 18 of the WIPO Performances and Phonograms Treaty (WPPT). 86 Information Society Directive (2001/29/EC). 87 Article 6 states:

6.1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or he is pursuing that objective; 6.2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which: (a) are promoted, advertised or marketed for the purpose of circumvention of, or (b) have only a limited commercially significant purpose or use other than to circumvent, or (c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures. For a general commentary on the Information Society Directive and its implementation within the UK, see Cook, T. and Brazell, L. (2004), The Copyright Directive: UK Implementation, Bristol: Jordan Publishing.

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mentioned above, the Directive was subsequently implemented within the UK with the passing of the Copyright and Related Rights Regulations 2003 (SI 2003/2498).88 In effect, these provisions prohibit the circumvention of any effective technological measures (such as encryption, scrambling or copy control mechanisms) designed to prevent a user unlawfully accessing any copyright work, or performing any of the acts restricted by copyright in relation to a copyright work. Moreover, any person doing anything to circumvent such measures is guilty of infringing the copyright in the work as if he had published or communicated the work to the public. The particular threat posed by TPMs to the public domain is of two kinds. In the first place they could be used by content providers to technologically lock-up works which are no longer within the copyright term.89 Secondly, in relation to works that are copyright protected, these TPMs will also interfere with any user’s ability to engage in lawful reproduction from the work whether in accordance with the various permitted acts, whether set out in the legislation or at common law (how do you make copies from a work, whether substantial or insubstantial, fair or unfair, in the public interest or not, whenever the medium itself is copy-protected?). The 2003 Regulations do address this latter concern, in line with the requirements of the Directive,90 in providing that ‘where the application of any 88 Supra n. 24; see also Chapter 5 nn. 74–79 and accompanying text. For the US implementation of A.11 of the WCT see the Digital Millennium Copyright Act 1998, 17 USC § 1201 (DMCA). To summarise, s. 1201 divides technological measures into two categories: measures that prevent unauthorised access to a copyrighted work and measures that prevent unauthorised copying of a copyrighted work. Making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances. As to the act of circumvention itself, the provision prohibits circumventing the first category of technological measures, but not the second. For an excellent account of the enactment of the DMCA see Litman J. (2001), Digital Copyright, New York: Prometheus Books. 89 As Samuelson notes: ‘Technical measures will, unless programmed otherwise, persist after copyrights expire, thereby undermining new entrants to the digital public domain’; Samuelson, supra n. 7, pp. 160–61. 90 Article 6(4) of the Directive sets out that: ‘Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned’.

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effective technological measure … prevents a person from carrying out a permitted act in relation to that work’ that person can issue a notice of complaint to the Secretary of State who has available to him a number of possible courses of action to remedy the situation.91 However, ignoring the fact that the onus is placed upon the copyright user to ensure the owner is not using such TPMs to impinge upon otherwise lawful actions under the legislation,92 as well as the abysmally weak nature of the mechanism for addressing such complaints (with its emphasis on developing voluntary measures between owner and user to address the problem),93 the provision does not in any event apply to all of the permitted acts set out within the Copyright Designs and Patents Act (CDPA). The list of permitted acts to which the remedy pertains is set out in Part 1 of Schedule 5A of the Regulations, and does not, for example, include fair dealing with a work for the purpose of criticism or review, or for reporting current events. In relation to these types of permitted use the Secretary of State need do nothing at all. Moreover, even in relation to those types of permitted act for which a presumption of non-interference does exist, where the copyright work has been ‘made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them’ (that is, online and on-demand), then again the Secretary of State need do nothing,94 an exception which will have increasing 91

Regulation 24, putting in place CDPA s. 296ZE(2). The Secretary of State ‘may give to the owner of that copyright work … such directions as appear to the Secretary of State to be requisite or expedient for the purpose of – (a) establishing whether any voluntary measure or agreement relevant to the copyright work the subject of the complaint subsists; or (b) (where it is established that there is no voluntary measure of agreement) ensuring that the owner … makes available to the complainant the means of carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act’; s. 296ZE(3). 92 Parallels might be drawn with the complaints procedure set out in s. 4 of the Statute of Anne 1709 for regulating the price of books – a way in which the public could keep in check the activities of the book trade. The section never seems to have been invoked and was subsequently repealed in 1739. 93 The Directive only requires Member States to act in the absence of any ‘voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned’ (or in other words, the existence of an appropriate licensing scheme); A.6(4). This is in line with the preamble to the Directive which sets out at para. 45 that the existence of the permitted acts ‘should not … prevent the definition of contractual relations designed to ensure fair compensation for the rightholders insofar as permitted by national law’. 94 CDPA, s. 296ZE(9). A.6(4) of the Directive sets out that: ‘The provisions of the first and second subparagraphs shall not apply to works or other subjectmatter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them’.

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relevance as more and more copyright owners begin to rely upon the Internet for delivery of their copyright content (think of the recent exponential growth of lawful music downloads from providers such as iTunes, Napster, and so on).95 The interaction between the law of copyright and the law of contract throws up some equally problematic concerns as regards the public domain. Consider, for example, an art correspondent seeking to review a current photography exhibition. The correspondent may well wish to draw upon certain of the more significant images to illustrate and accompany the review. Access to the images is often conditional upon contractual terms that seek to circumscribe the ability of the reviewer to use the images as he or she otherwise might wish. The following clause is fairly typical in such gallery agreements: ‘The … image cannot be reproduced in any other context, format, or venue, including the Internet, without prior written consent from [the Gallery].’96 That is, in exchange for access to the photograph, the reviewer is required to contract out of any uses of the image he might otherwise engage in within the parameters of the copyright regime. What if, however, the reviewer wanted to critique, not the exhibition and the place of the image within it, but simply the image itself (perhaps one month after the exhibition ended)? The provisions of the CDPA (s. 30(1)) would allow him to do so. However, decoupled from the context of the gallery show, the provisions of the contract securing access to the image 95

For a discussion of these various issues, see: Heide, supra n. 82; Braun, N. (2003), ‘The Interface between the Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and in the European Community’, European Intellectual Property Review, p. 496; Loren, supra n. 82; Dusollier, S. (2003), ‘Exceptions and technological measures in the European Copyright Directive of 2001 – an empty promise’, International Review of Industrial Property and Copyright Law, p. 62. 96 For a more specific example consider the notice which accompanied the release of certain images from the recent Diane Arbus exhibition at the V&A (13 October 2005 – 15 January 2006): ‘The Diane Arbus image/s attached are lent for the sole purpose of editorial publicity related to the V&A’s Arbus exhibition. The following are the requirements/limitations regarding the reproduction of the photograph(s) by Diane Arbus: 1. The image(s) may not be cropped or surprinted. 2. The image(s) may only be reproduced in print media. 3. Reproduction of each photograph must be accompanied by the copyright notice that appears at the bottom of the photograph. 4. The photograph may only be used in connection with the press relating specifically and exclusively to the exhibition Diane Arbus Revelations at the V&A and in no event later than 15 January 2006. This photograph may NOT be reproduced for any other purpose without the written permission of the Estate of Diane Arbus, LLC. 5. The digital file containing the Arbus photograph must be destroyed following its intended use. The file may not be stored, copied or transmitted to any third party by any means, unless related to the uses set forth in paragraph 4. Any other reproduction of transmission will be deemed copyright infringement’.

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would not. The Gallery may never have intended to impose such restrictions upon the proposed reproduction of the image in question, however the de facto result remains the same. This interplay between contract law and copyright carries with it the potential for all sorts of cultural or political censorial practices: ‘Of course you can review the work, even criticise it … but only if you can afford to’; or again, ‘Of course you can review the work, even criticise it … but only if you write for the Daily Mail’. The previous example involved a one-to-one contract negotiation, however, as the online delivery of copyright protected works becomes increasingly commonplace so too does the use of ever more generic click-wrap licensing agreements,97 the terms of which end-users rarely ever read (for example, should you access material on Westlaw or Lexis-Nexis (or any other information database), are you legally entitled to read that material on-screen only?, or does the licence also authorise you to print a hard copy of the work?, or save it on your computer’s hard-drive?). There are, of course, various principles of common law98 and equity,99 which operate to limit the enforceability of certain types of contractual provision; however, whether any of these strategies would have any relevance for the end-user is doubtful to say the least.100 Neither does any of the current domestic consumer protection legislation seem to have any relevance given that the Unfair Contract Terms Act 1977 does not apply to copyright contracts,101 and that the Unfair Terms in Consumer Contracts Regulations 1999 sets out that ‘the assessment of fairness of a term shall not relate … to the definition of the main subject matter of the contract’.102 Given that the 97 The edict which accompanied Adobe’s e-book version of Alice in Wonderland by Lewis Carroll (a work in the public domain) that ‘[t]his book cannot be read aloud’ is almost too infamous to repeat here. 98 The various common law mechanisms for restricting the operation of contractual provisions include: duress, undue influence, restraint of trade, and public policy concerns (such as provisions promoting sexual immorality, restricting the freedom to marry, perverting the course of justice, and so on). 99 Equity will provide relief against bargains which it considers to be unconscionable. 100 Certainly when the Australian Copyright Law Review Committee considered this issue (within the parameters of the Australian legal system), while on the one hand they did not regard the enforceability of such contractual terms to be settled ‘as a matter of domestic law’, they did accept that such agreements were ‘prima facie enforceable’. Copyright Law Review Committee (2001) Copyright and Contract, pp. 148 and 258, available at www.ag.gov.au/agd/WWW/clrhome.nsf/AllDocs/092E76FE8AF2501 CCA256C44001FFC28?OpenDocument 101 Unfair Contract Terms Act 1977, c. 50. Its scope of application is excluded from any contract so far as it relates to the creation or transfer of a right or interest in copyright or relates to the termination of such interest or right; Sch. 1 s. 1(2)(c). 102 SI 1999/2083, reg. 6(2).

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drafters of the Broadcasting Act 1996 considered it necessary to specifically provide that ‘[a]ny provision in an agreement is void in so far as it purports to prohibit or restrict relevant dealing with a broadcast or cable programme in any circumstances where by virtue of section 30(2) of the [CDPA] … copyright in the broadcast or cable programme is not infringed’, the enforceability of such ‘contracting out’ provisions seems all the more certain.103 In the absence of any similar general statutory provision rendering null and void those contractual provisions which purport to exclude or modify the operation of (at least certain of) what are otherwise permissible acts,104 then, as is the case with TPMs, the potential for contract law to impact upon the public domain seems equally significant.

CRITIQUES OF COPYRIGHT’S PUBLIC DOMAIN There are, naturally, various issues that may legitimately be raised about the appropriateness or even the value of this snapshot of copyright’s public domain presented above. One such objection is that raised by Van Caenegem, in his article ‘The Public Domain: Scientia Nullius?’,105 that as intellectual property interests have been developed and defined in accordance with western ideologies of authorship and ownership, then similarly any concept of the public domain which operates in relation to those intellectual properties, may function to justify a misappropriation, or dispossession, of traditional knowledge (whether literary, artistic, technological and so on). In his words, a western-modelled notion of the public domain ‘may inadvertently justify the denial of the otherwise legitimate claims of indigenous peoples to control intangibles’.106 The point is well taken, and Van Caenegem is certainly right in 103 Broadcasting Act 1996, c. 55, s. 137. See also CDPA ss 50A and 50B, which safeguard a lawful copyright user’s right to make a back-up copy of a computer program, as well as decompiling that computer program, under certain circumstances, regardless of any condition of agreement purporting to restrict his ability to do so. These provisions were introduced into the CDPA as a result of the implementation of the European Software Directive 91/250/EEC, A.5, 6 and 9. 104 Indeed, this is exactly what the Australian Copyright Law Review Committee have recommended – that Australia’s copyright legislation be amended to ensure that any agreement ‘that excludes or modifies, or has the effect of excluding or modifying, the operation of [the permitted acts], has no effect’; Copyright Law Review Committee, supra n. 100, p. 274. 105 Van Caenegem, supra n. 11. See also Coombe, Rosemary J. (2002–03), ‘Fear, Hope and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property’, DePaul Law Review, p. 1171. 106 Van Caenegem, supra n. 11, p. 325. He writes: ‘To coin a phrase, the public domain is the scientia nullius of intellectual property law; just as the now discredited

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that the public domain, described herein, is a historically, geographically, culturally, socially and politically contingent concept, as are all intellectual properties. However, this does not mean that the concept of the public domain, albeit contingent, is not of value. Again, recall the period immediately prior to the passing of the Statute of Anne – a period when anyone was free to use, without the need for permission, any literary work of the time. Absent any form of legal regulation, all works lie within the public domain (whether disclosed or not). It is the existence of the statutory protections which define that which is removed from the original state of the public domain into the private domain of copyright protection by locating the exclusive control of certain types of use in any given individual albeit for a certain period of time. It could equally well ascribe such controls to any given community, indigenous or not, for whatever period of time as is considered appropriate, should the political will to do so exist. A related issue, concerns not the way in which proselytising the virtues of the public domain might operate to occlude the interests of indigenous communities, but rather that it may entrench the status quo of intellectual properties as they currently exist, regardless of significant differences in the intellectual property interests and needs of developed, developing and least developed countries. In 2002, for example, the UK Commission on Intellectual Property Rights, established by Clare Short (then Secretary of State for Overseas Development), made a number of recommendations concerning the manner in which intellectual properties might play a more substantial role in more effectively addressing the international community’s aspiration to reduce poverty and hunger, improve health and education, and facilitate sustained economic growth and development throughout the developing world.107 This, however, is not a question of the public domain per theory of terra nullius was really a theory justifying unwarranted dispossession of land, the theory of scientia nullius can be conceived as a justification for the dispossession of knowledge’; ibid., p. 329. In a similar vein, Coombe writes that ‘[a] cultural public domain framed entirely by American legal principles, without consideration of the legal circumstances in which most of the world’s peoples find themselves runs the danger of appearing to be both self-serving and imperialist. To the extent that we are committed to the cultural public domain, we need to consider a wider range of activities and practices than those that copyright law traditionally recognized as acts of authorship and those most characteristic of Western creators. A vibrant cultural public domain will also requires consideration of means to maintain cultural diversity and ongoing dialogue across and between cultural traditions’; Coombe, supra n. 105, p. 1181. 107 See in general the Commission on Intellectual Property Rights (2002), Integrating Intellectual Property Rights and Development Policy, London: CIPR. In relation to copyright see in particular ‘Chapter 5: Copyright, Software and the Internet’, ibid.

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se, but of what is considered to be in the public interest as regards those developing and least developed countries, and as a consequence whether the public domain should mean the same thing for everyone in equal measure. In point of fact, different public domains already exist for different interest groups. Within the UK, that which librarians can do with copyright protected works is different from that which teachers can do, or that which those working in public administration can do, and so on.108 There is no reason why the boundary between that which is copyright protected and that which is public domain should not vary for other such interested parties, whether they are represented by the Royal National Institute for the Blind,109 or by the government of a less-developed country. For example, additional cost-neutral permissions might well be negotiated in an attempt to redress existing imbalances and inequities as to the manner in which the international intellectual property regime impacts differentially upon various nation states. In reality, these would amount to no more than another set of ‘acts permitted by copyright’ (albeit within an international context), and again, they are simply matters of political will and institutional fact. That the nature of the public domain may differ depending upon which interested party wishes to make use of any given work is not, in itself, problematic. It does, however, throw into sharp relief the fact that should we try and detail the nature and extent of the public domain in any given national jurisdiction (never mind within a regional or an international context) then the exercise is bound to fail. That is, not only do permitted acts vary across different interest groups, as well as across jurisdictions, but as there cannot exist any bright line test for determining that which is mere idea as opposed to an expression of an idea (or that which is insubstantial, fair, non-commercial, immoral, or in the public interest, and so on), it will always remain impossible to determine with accuracy, at any given time, that which is public domain and that which is not. However, that it is impossible to accurately articulate the public domain in this way does not mean that there is no value in accurately conceptualising the legal parameters of the public domain. It is to be remembered that the private domain of copyright and copyright’s public domain necessarily share the same boundary – that which is not copyright protected is public domain and vice versa – and that the actual limits and extent of that which is copyright protected is no more readily identifiable and subject to coherent and complete articulation than that which is public domain. The boundary between the two is, and always will be, inherently unstable and unknowable, but that it is unstable and unknowable does not operate to conceptually discredit either phenomenon. 108 109

Supra n. 46–62, and accompanying text. Copyright (Visually Impaired Persons) Act 2002, c. 33.

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What is perhaps more important is that acknowledging that the public domain can never be accurately captured functions to remind us that copyright is an extraordinary type of property in the sense that its boundaries are equally imprecise. If, indeed, the public domain is ‘an undifferentiated blob of unnamed size and dimensions’, ‘a vast and diverse assortment of contents’, if it is murky and unknowable, then so to is the private domain that is copyright. Many academics have of late commented upon an unsettling and unwarranted ‘reification’ of copyright – the tendency to think of copyright as equivalent to any other ordinary (tangible) property. In 1999, Benkler neatly captured this sentiment in remarking upon the way in which copyrights, patents, et al, have within the last 50 years become subsumed within the umbrella term of ‘intellectual property’,110 which ‘semantic umbrella has infused these laws with the conceptual attitudes we have toward property in physical things’.111 Over 30 years earlier, Ben Kaplan wrote in the following terms: I find one temptation easy to resist, and that is to sum up copyright with just the word “property” or “personality” or any one of the other essences to which scholars, foreign and domestic, have been trying to reduce the subject since before the time of Mansfield. To say that copyright is “property”, although a fundamentally unhistorical statement, would not be baldly misdescriptive if one were prepared to acknowledge that there is property and property, with few if any legal consequences extending uniformly to all species and that in practice the lively questions are likely to be whether certain consequences ought to attach to a given piece of so-called property in given circumstances.112

Kaplan continued: ‘Copyright law wants to give any necessary support and encouragement to the creation and dissemination of fresh signals or messages to stir human intelligence and sensibilities’.113 To accept that copyright as a phenomenon is, in all practical terms, as nebulous as the public domain, is to remind ourselves that copyright is not equivalent to other forms of property, and to prompt us to guard against that otherwise beguiling, if problematic, process of assimilation with the tangible. This, perhaps, represents one of the greatest benefits of contemplating the 110

The consistent use of the term ‘intellectual property’ can perhaps be traced to the publication of Plant, S.A. (1953), The New Commerce in Ideas and Intellectual Property, London: Athlone Press. 111 Benkler, supra n. 17, p. 355. In a similar vein, see also: Lemley, M.A. (1997), ‘Romantic Authorship and the Rhetoric of Property’, Texas Law Review, p. 873; and Vaver, D. (2000), ‘Intellectual Property: The State of the Art’, Law Quarterly Review, p. 621. 112 Kaplan, B. (1967), An Unhurried View of Copyright, New York, US and London, UK: Columbia University Press, p. 74. 113 Ibid.

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nature and dimensions of the public domain – not what it tells us about the public domain itself, but what it reminds us as regards copyright.

CONCLUSION The parameters and aims of this particular chapter have been modest indeed. At no point have I attempted to set out some economically predetermined perfect balance between that which is copyright protected and that which public domain (I leave that for the legal economists), or even to comment upon the recent shifts in legal policy and legislative fact that have altered what balance exists between the two phenomena (I leave that for another time). Rather, in a very simplistic fashion I have sought to do little more than to introduce the reader to the institution of copyright first and foremost through the prism of the public domain, and in so doing to provide some useful, if basic, conceptual distinctions for articulating the nature and significance of the relationship between the two.114 Litman has observed that ‘[a]lthough the public domain is implicit in all commentary on intellectual property, it rarely takes center stage’,115 and she is correct. Part of the reason for this state of affairs no doubt lies in the distinction which Mark Rose has drawn between ‘the fact of the public domain’ and ‘the discourse of the public domain’. Drawing upon the copyright debates of the mid-eighteenth century, Rose argues that while those debates did give rise to a robust rhetoric of copyright as property right, they failed to produce ‘a legal discourse of public rights strong enough to balance the discourse of property rights’,116 a position which was sustained throughout the nineteenth century and which, by and large, still remains true today. Open any standard treatise concerning copyright in particular, or intellectual property in general, and you will find little if any commentary upon the public domain (in the sense in which it has been discussed within this chapter). However, thinking about copyright within the context of the public domain has considerable value, not only in what it reveals about the manner in which the public domain facilitates the operation of the copyright regime,117 but also in that it provides a fruitful opportunity for exploring the fundamental nature

114

Including those significant forces external to the copyright regime which exhibit considerable potential to impact detrimentally upon that public domain. 115 Litman, supra n. 8, p. 977. 116 Rose, supra n. 27, p. 86. He continues: ‘[A]s we attempt to argue for the value of the public domain, we need to understand that we are fashioning a rhetoric as well as a politics of the public domain’; ibid., p. 87. 117 Supra n. 41, and accompanying text; see in particular Litman, supra n. 8.

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of copyright as a constantly evolving, artificial and institutional construct. That is, in better understanding the nature and relevance of the public domain we begin to better understand the nature of copyright including both its limits and its limitations.

5.

Theory II: what is copyright? … or, the case for intellectual property freedoms and privileges (and in that order)

ON COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS The Charter of the Fundamental Rights of the European Union (2000) (Charter) represents a curious if significant landmark in the story of intellectual properties such as copyright. Article 17.1 sets out the ‘Right to Property’.1 By comparison with Article 1 of the First Protocol to the European Convention on Human Rights,2 the provision concerning property within the Charter is considerably more robust. For one thing it is referred to as a right (whatever that may mean), whereas the Convention addresses the protection of property. For another, whereas the First Protocol measure confirms that no one shall be deprived of their possessions ‘except in the public interest and subject to the conditions provided for by law’, the Charter adds that the deprivation of an individual’s possessions will also be accompanied by ‘fair 1

Article 17.1 sets out that:

Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2

Article 1 of the First Protocol sets out that:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 135

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compensation being paid in good time’. More important in the present context is the fact that the Charter also states in Article 17.2 that ‘Intellectual Property shall be protected’. Article 17.2 says nothing more – simply those five remarkable words.3 This is the first time that any international human rights document has made explicit reference to the protection of intellectual property. Certainly other instruments have made reference to the protection of an individual’s material interests in cultural or scientific productions. For example, Article 27.2 of the Universal Declaration of Human Rights sets out that ‘[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is an author’.4 Similarly, Article 15.1 of the International Covenant on Economic, Social and Cultural Rights provides: The States Parties to the present Covenant recognize the right of everyone: (a) to take part in cultural life (b) to enjoy the benefits of scientific progress and its applications (c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.5

To date, however, the Charter is the first such document to make reference to intellectual property qua intellectual property.6 If they didn’t before, the 3 In relation to Article 17 the Updated Explanations relating to the text of the Charter of Fundamental Rights (Conv 828/1/03) sets out as follows:

This Article is based on Article 1 of the Protocol to the ECHR … This is a fundamental right common to all national constitutions. It has been recognised on numerous occasions by the case law of the Court of Justice, initially in the Hauer judgment (13 December 1979, ECR [1979] 3727). The wording has been updated but, in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there. Protection of intellectual property, one aspect of the right of property, is explicitly mentioned in paragraph 2 because of its growing importance and Community secondary legislation. Intellectual property covers not only literary and artistic property but also inter alia patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual property. 4 A.27.1 states that ‘[e]veryone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. 5 Omitting any specific reference to an individuals ‘material interests’ the Arab Charter on Human Rights sets out that ‘[e]veryone has the right to participate in cultural life, as well as enjoy literary and artistic works and to be given opportunities to develop his artistic, intellectual and creative talents’; A.36. 6 Article 13 of the Charter also sets out that ‘[t]he arts and scientific research shall be free of constraint. Academic freedom shall be respected’.

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protection of intellectual properties such as copyright would now appear to constitute a fundamental human right.7 The year after the content of the Charter was finalised, the UN Committee on Economic, Social and Cultural Rights issued a general statement concerning ‘Human Rights and Intellectual Property Issues’, only the second statement ever issued by that Committee. In its statement the Committee acknowledged ‘the far-reaching importance and complexity of integrating human rights into the development of intellectual property regimes’, and drawing a clear distinction between human rights on the one hand and the ‘legal rights recognized in intellectual property systems’ on the other, they suggested that intellectual properties should be understood as a purely instrumental phenomenon, a social product with a social function, ‘a means by which States seek to provide incentives for inventiveness and creativity from which society benefits’. The difference in approach between the European Charter and the UN Committee’s general statement could not be more striking – the one espousing intellectual property as fundamental right, the other categorising it as no more than a useful means to a social end. What then is intellectual property? What is it that we think of when we talk about intellectual property in general?, or of copyrights, patents or trade marks in particular? In the 50 or so years that policy makers, lawyers, judges and academics have been discussing intellectual property (as intellectual property) there has not yet developed any consensus as to its fundamental nature or justification. Of course, the nature of intellectual property as property, and the justifications as to the existence of intellectual property constitute two different (albeit related) enquiries. The first prompts us to consider what we mean in speaking of intellectual property. The latter concerns the whys and the wherefores of intellectual property – why have (or tolerate) it at all?, what is its purpose?, is it a good or a bad thing?, and so on. In the context of copyright much writing in this regard has tended to focus upon the latter, at the expense of the former; that is, the literature in the main has tended to ask why do we have copyright, rather than what is copyright? Turning in brief to the first of these questions, the theoretical justifications invoked in support of copyright are many and varied. The context and content of the first three chapters of this book concerned the movement of the debate within eighteenth- and nineteenth-century Britain as to whether copyright 7 On the legal standing of the Charter and its relationship to the ECHR, as well as its relevance for the European Court of Justice, see Krüger, H.C. (2004), ‘The European Charter of Fundamental Rights and the European Convention on Human Rights: An Overview’ in Peers, S. and Ward, A., The European Union Charter of Fundamental Rights, Oxford: Hart Publishing, pp. xvii–xxvii.

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existed at common law or was purely a creation of the legislature. Broadly speaking, the various proponents in that debate might be described as having adopted a natural (or moral) rights approach on the one hand, as against an instrumentalist (or consequentialist) approach on the other; we might easily place Mansfield, Eyre and Copinger in the former camp, and Yates, Brougham and Scrutton in the latter. To restrict our investigation of the various justifications for copyright to this historical period and within this particular jurisdiction, however, is to overlook other theoretical foundations upon which a system of copyright protection might be based. For example, when Mansfield et al. expounded upon the natural rights of the author to the benefits of his work, they were drawing heavily upon the political theory of John Locke and the notions of occupancy and labour as the foundation for a property system; in Mansfield’s words: ‘it is just, that an Author should reap the pecuniary Profits of his own Ingenuity and Labour’.8 William Blackstone, writing around the same time, put the argument in this way: ‘When a man by the exertion of his rational powers has produced an original work as he pleases … any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property’.9 This, of course, is a peculiarly Anglocentric approach to the natural rights thesis. Under the general rubric of a natural rights approach we might equally well turn to the moral rights basis favoured in various civil law jurisdictions; that is, that an intellectual property such as copyright exists in accordance with the French conceit of droit d’auteur or as an outgrowth of Kantian and Hegelian notions of personality.10 In a similar vein, the approach of those who adhered to a more instrumentalist approach, such as Brougham and Scrutton, might be categorised as broadly utilitarian in nature. Again though, one might equally well develop arguments under the instrumentalist umbrella based, not upon utilitarian principles, but upon grounds of economic efficiency,11 or of individual autonomy, freedom and democratic participation.12 The merits and demerits of these various competing (and sometimes complementary) theoretical underpinnings constitutes its own significant body of literature 8

Millar v. Taylor (1768) 4 Burr 2303, p. 2398 (Millar). Blackstone W. (1766), Commentaries on the Laws of England, vol. 2, reprinted in (1979), A Facsimile of the First Edition of 1765–1769, Chicago, US and London, UK: University of Chicago Press, pp. 405–6. 10 In general see Davies G. (2002), Copyright and the Public Interest, 2nd edn, London: Sweet & Maxwell. 11 Towse, R. and Holzhauer, R. (eds) (2002), The Economics of Intellectual Property, vols. I–IV, Cheltenham, UK and Northampton, US: Edward Elgar Publishing. 12 See for example Netanel, N. (1996), ‘Copyright and a Democratic Civil Society’, Yale Law Journal, p. 283. 9

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which we will not dwell upon at length here. It is suffice to note that these various justifications exist, and as arguments they are historically, geographically and politically contingent in themselves. However, again, to return to our main concern: when we speak of copyright what do we mean?

ON COPYRIGHT AS PROPERTY When Jeremy Waldron produced his seminal text on The Right to Private Property he chose to limit his exploration to the individual’s right to material resources, ‘resources like minerals, forests, water, land, as well as manufactured objects of all sorts’;13 as to such things as ideas, inventions, reputations, or copyright, he suggested the postponement of ‘the analysis of concepts and arguments about incorporeal property … until we have clear concepts of property and private property for material objects’.14 Waldron gives us our first point of departure in this regard: before we can understand what it means to speak of intellectual property in general or copyright in particular we must turn first to the equally fundamental (and equally contested) question: what is property? What is property, and what does it mean to speak of property rights? The legal and philosophical literature on this question is extensive to say the least, and this is not the place for embarking upon an equally extensive review of the same. Instead, we can take a cue from Underkuffler’s recent work on The Idea of Property and her useful synopsis that, broadly speaking, literature in this area falls into three main groups: 1.

that property is simply ‘things’ (the ‘layman’s view’);

2.

that property is best understood as a constellation of claim-rights, privileges, powers and immunities (the Hohfeldian analysis);15

3.

that property involves legal relations between persons with respect to things (the ‘rights plus’ approach).16

13 Waldron, J. (1988), The Right to Private Property, Oxford: Oxford University Press, p. 33. 14 Ibid., p. 35. Although he does not consider intellectual property in The Right to Private Property he does return to the issue at a later date: Waldron, J. (1993), ‘From Author to Copiers: Individual Rights and Social Values in Intellectual Property’, Chicago-Kent Law Review, p. 841. 15 For an excellent analysis of copyright as property within the Hohfeldian model see Waldron, ibid. 16 Underkuffler, L.S. (2003), The Idea of Property: Its Meaning and Power, Oxford: Oxford University Press, pp. 11-15.

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One of the latest and most provocative treatments falling within this third tradition, that is, the property as rights in and to things approach, is James Penner’s work The Idea of Property in Law.17 Penner’s analysis, although not without its critics, provides a useful starting point for a fuller exploration of intellectual property in the round. His theory of property runs as follows. In the first place, he considers, a right in a thing exists when a duty of noninterference is imposed in law upon others in relation to that thing. The nature of this right, he continues, can be understood in terms of the familiar concept of exclusion – that the right holder can exclusively determine the use of the thing. The use of a thing, for Penner, provides a justification for having a property right, whereas it is the notion of exclusion which provides the formal essence of the right. This exclusion thesis characterises property as a ‘protected sphere of indefinite and undefined activity in which the owner may do anything with the thing that he owns’.18 The duty imposed upon others in this context is the duty to exclude oneself from the property in question – a duty in rem not to interfere. The exclusion thesis however provides only one half of the equation when resolving the nature of a property right. On its own it does not answer the question as to what things should be treated as property. For example, the argument goes, one can obviously exclude another from interfering with one’s personality, but that does not mean that one’s personality should be treated as property; that is, the existence of an ability to exclude does not of itself imply that a property exists. The second half of the equation is supplied by the fact that tied to this idea of exclusion is the notion of alienability. For Penner, having a property right in a thing must include the ability to abandon, to share, to licence, and to give that thing away in its entirety; that is, a property right must not just be contingently ours, but that it might just as well be someone else’s.19 This notion lies at the heart of his separability thesis which, combined with the exclusion thesis, provides the foundation for Penner’s theory of property.20 Penner also goes on to explain why certain intangible constructs, such as shares and debts, are not precluded from his general theory of property. Such choses in action, he explains ‘are rights in respect of the property of other legal owners which the law is happy to allow their holders to treat as ‘things’ in their 17

Penner, J. (1997), The Idea of Property in Law, Oxford: Oxford University Press. Ibid., p. 72. 19 Supra n. 17, p. 112. 20 In determining the ‘thinghood’ of objects of property Penner’s separability thesis contrasts those things which lack personality (such as a tangible object or an intangible debt) from those things which are bound up in personality-rich relationships with other people and suggests that only the former should be considered to be property; ibid., pp. 129–32. 18

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own right’.21 While Penner acknowledges that they are technically rights in personam (that is the right to require a certain individual to perform a certain act – in this case, the transfer of money), nevertheless it is the impersonality of the relationship between the two parties, which facilitates the application of the criterion of separability to such ‘things’. By contrast with other types of relationship, for example, a contract of employment, which are personalityrich,22 there are certain relationships in personam, which, as a result of their ‘personality poverty’, can otherwise be regarded as property rights. What then of intellectual properties? How does Penner handle these ‘things’? He acknowledges, quite correctly, that intellectual properties do not fit easily within his classification of property. On the one hand, they are akin to choses in action, in that they are abstract legal rights with no direct connection to any particular thing; that is, they are not rights in rem. On the other hand, neither do they represent a claim to receive some share or amount of another’s pre-existing property, as does a chose in action. Further, while they are not rights in rem, they do however operate like rights in rem in imposing a duty of non-interference on all subjects within the legal system.23 This duty of noninterference does not, of course, pertain to material objects, but rather to an original expression, a novel and inventive idea, or a well-known mark. In short, for Penner, intellectual properties are not property rights per se; rather they are ‘rights directly to a practice of exclusion … correlating to duties in rem’. They are not property, but rather must be considered to be institutional monopolies created by the state; things akin to choses in action that nevertheless function like rights in rem.24 That is, they are neither more 21

Ibid., pp. 129–30. That is, where ‘the quality of the personal performances of the parties’ provides ‘the essence of the legal relationship itself, and thus of the rights and duties it defines’; supra n. 17, p. 130. 23 By contrast, rights in personam impose a duty upon specific individuals only, and not the world at large. 24 Penner rightly observes that ‘[w]hatever rights the artist has, whenever we start speaking of property rights in artistic works things begin to lose sense’. The differences between that which we traditionally conceive of as property, and intellectual property, is also evident in the range of uses which an intellectual property rights holder can put his property – by contrast with a book, or a parcel of land, wherein the uses are limited only by the imagination of its owner, intellectual property rights can only be exercised in those manners described by law. That is, the uses to which intellectual property can be put are of a different order to the uses to which tangible property (that is ‘things’) can be put. Again, it is useful to keep in mind that we are not discussing whether or why the state should create such monopolies. Neither are we concerned with the legitimacy of the state’s actions in so doing: Cahir, J. (2005), ‘The Moral Preference for DRM Ordered Markets in the Digitally Networked Environment’, in Macmillan F. (ed.), New Directions in Copyright Law, vol. I, Cheltenham, UK and Northampton, US: Edward 22

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nor less than a monopoly granted by the state in an abstract object imposing an obligation of non-interference upon all legal subjects within that state, a conclusion which precludes any adherence to a coherent natural rights thesis of copyright.25 In this respect, Penner’s observations on intellectual properties are in line with those of the UN Committee on Economic, Social and Cultural Rights, of Neil MacCormick,26 Peter Drahos,27 and other contemporary academics who can be described as adhering to the instrumentalist school of intellectual property thought.28 However, this is not (primarily) the reason for bringing Penner’s analysis to the fore. As we saw with the development and ultimate conclusion of the historical debate as to the existence or not of copyright at common law (in Chapter 3), the position adopted by Brougham and others was to be subverted and then obscured in the way in which the debate was subsequently recounted in the dominant texts of the late nineteenth century. Similarly, we can identify a comparable pathology in which Penner himself subverts his own conclusions as to intellectual property. Consider his following assertion: While patents are not property rights in ideas, nor copyrights property rights in expressions, nor again trade marks property rights in symbols or words, in general it does no harm to speak of rights in ideas, or in manuscripts,[29]or in marks, any more than it does to refer to one’s rights in one’s labour.30 Elgar Publishing, pp. 24–53. The enquiry here is not about why we should or should not tolerate intellectual property, but what we mean in speaking of intellectual property. 25 Moreover, as we have seen in earlier chapters, they are observations which have a strong measure of historical resonance within the UK. 26 MacCormick, N. (2002), ‘On the Very Idea of Intellectual Property: an Essay according to the Institutional Theory of Law’, Intellectual Property Quarterly, p. 227. 27 Drahos, P. (1999), ‘Intellectual Property and Human Rights’, Intellectual Property Quarterly, p. 349. 28 The reader may no doubt suspect something ‘Copinger-esque’ in my reliance upon Penner in this regard; he is of course only one of many writers that can be described as falling within Underkuffler’s third category of property rights theorists, and he is not without his critics (indeed Underkuffler herself would not agree with his commentary upon intellectual properties). And yet, the prisms of ‘excludability’ and ‘separability’, which form the basis of his thesis, appear, to me at least, to be eminently useful concepts through which to explore and understand the nature of both property and intellectual property; and certainly they are concepts which provided a focus for much of the mid-eighteenth-century debate concerning copyright in the run up to the decisions of Millar and Donaldson v. Becket (1774) 4 Burr 2408 (Donaldson). In general see Deazley, R. (2004), On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain 1695–1775, Oxford: Hart Publishing. 29 One presumes that Penner actually means rights in an original expression rather than rights in a manuscript; again however this slip illustrates the ease with which it is possible to conflate the tangible with the intangible, the manuscript and the text. 30 Penner, supra n. 17, p. 119 (emphasis added).

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That is: intellectual properties are not properly property rights, they are monopoly grants, but for the sake of convenience let us refer to them as property rights; after all, it does no harm. In this however I would suggest that Penner is wrong: to elide the different concepts of receiving and holding a monopoly in an intangible and abstract object with the notion that that intangible abstract object is property can and does cause considerable harm.

ON COPYRIGHT’S TRAJECTORY, LANGUAGE AND DISCOURSE Why call a monopoly granted by the state a property right? Why not call it a monopoly or indeed a privilege? One answer might be found in the correspondence between John Freke, a barrister and close friend of Edward Clarke (MP for Taunton), and John Locke discussing the progress of a Bill for the Better Regulating of Printing and Printing Presses through the House of Commons in March 1695. The Bill, which Clarke had been charged with the task of preparing, was brought before the House in anticipation of the imminent lapse of the Licensing Act 1662 in May of that same year. It failed for a number of reasons, although uppermost was the fact that it did not provide any security for the book trade – that is, the proposed legislation had omitted to afford the existing publishers and booksellers any exclusive rights of printing and selling books, as had been the case under the terms of the Licensing Act 1662.31 There was much talk of the need to provide the booksellers’ with a property in books, and of that discussion, Freke wrote to Locke as follows: [W]hen they are asked what they mean [by property] they can none of them give any good answer and if they would all speak out they (every party) mean differently. The Court means that it would be allowed the power of granting patents. The Stationers mean that they would have the regulation of property and disposal of it by making their Register the standard of it … The Bishops mean I know not what but they Chime in with the other two because they think property a very popular word, which Licensor is not.32 31

For accounts of the prehistory of the Statute of Anne 1709, 8 Anne, c. 19, see: Patterson, L.R. (1968), Copyright in Historical Perspective, Nashville: Vanderbilt University Press; Ransom, H. (1956), The First Copyright Statute, Austin: University of Texas; Rose, M. (1993), Authors and Owners: The Invention of Copyright, London: Harvard University Press; Loewenstein, J. (2002), The Author’s Due: Printing and the Prehistory of Copyright, London: University of Chicago Press. 32 John Freke and Edward Clarke to Locke, 14 March 1695, in De Beer, E.S. (ed.) (1978), The Correspondence of John Locke, in Eight Volumes, 5, Oxford: Clarendon Press, p. 291. One of the ironies of the orthodox conception of copyright within the UK is that John

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‘Property’ certainly is a popular word, which ‘licensor’ is not; the same might be said of ‘monopoly’. Certainly the World Organisation for Monopolies in Intangible Goods (WOMIG) has less caché than the World Intellectual Property Organisation (WIPO). Perhaps the founding fathers of WIPO realised as much when they launched the process of inculcating a now almost ubiquitous international discourse on all aspects of intellectual property rights. And yet, the phrase ‘intellectual property rights’ (or IPRs) is a useful and catchy umbrella term with which to capture an increasingly diverse and rapidly changing area of law; so, as Penner suggests, wherein lies the harm? The harm lies in the creeping reification of the intellectual property domain which such language facilitates, as well as the dangerous and damaging conceptual closure that is endemic within that process. Let us briefly consider the historical trajectory of copyright. At the beginning of the eighteenth century, copyright was a comparatively uncomplicated phenomenon. It existed in written works alone and operated to prevent others from reprinting, importing, selling, publishing or exposing for sale unauthorised copies of the work.33 Any use of the copyright work which did not fall squarely within the legislation itself, for example, publishing a translation or a fair abridgement of a text,34 were not considered to infringe the rights of the copyright owner. Over the next two hundred years, the protection of the legislature was extended to enable the creators (and purchasers) of other cultural artefacts, such as engravings, works of sculpture and dramatic works, to commercially exploit their works, free from market interference.35 At the same time, however, the courts developed a complementary jurisprudence concerning the Locke himself did not consider that his theory of property extended to intellectual properties such as copyrights and patents. In response to this letter from Freke, Locke suggested that Parliament might secure the ‘Author’s property in his copy’ by either including some provision that would allow a right to reprint those works which bore the name of the author or publisher upon them, or by issuing a ‘receit’ upon delivery of three copies of any printed work for the use of the King’s library and the two universities which would ‘vest a priviledg in the Author of the said book his executors administrators and assignes of solely reprinting and publishing the said book for ____ years from the first edition thereof’; ibid., pp. 795–96 (emphasis added). 33 Statute of Anne 1709, s. 1. 34 Burnet v. Chetwood (1721) 2 Mer 441; Gyles v. Wilcox (1741) 2 Atk 141. 35 See for example: Engraving Copyright Act 1735, 8 Geo. 2, c. 13; Engraving Copyright Act 1767, 7 Geo. 3, c. 38; Prints Copyright Act 1776, 17 Geo. 3, c. 57; Sculpture Copyright Act 1814, 54 Geo. 3, c. 56; Dramatic Copyright Act 1833, 3 & 4 Will. 4, c. 15; Lectures Copyright Act 1835, 5 & 6 Will. 4, c. 65; Copyright Act 1842, 5 & 6 Vict., c. 45; Fine Arts Copyright Act 1862, Vict., c. 68; Copyright (Musical Compositions) Act 1882, 45 & 46 Vict. c. 40; Musical Copyright Act 1906, 6 Edw. 7, c. 36.

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fair use of such works without the need for prior authorisation from, or payment to, the copyright owner.36 By the start of the twentieth century, with the need to adhere to international obligations concerning copyright provision in the guise of the Berne Convention,37 as well as the appreciation that the existing law on copyright was ‘wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it [was] intelligible upon long study, it [was] in many parts so ill-expressed that no one who does not give such study to it can expect to understand it’,38 it was considered appropriate to consolidate and refine the law of copyright within one legislative provision: the Copyright Act 1911.39 When the 1911 Act was passed, the dimensions and make-up of the law of copyright were far removed from the manner in which the law was first conceived in 1710. The scope of protected works was now larger, incorporating ‘every original literary, dramatic, musical and artistic work’,40 as well as ‘records, perforated rolls, and other contrivances by means of which sounds may be mechanically produced’.41 The term of protection had also increased considerably, now operating to protect a work for the lifetime of the author plus a 50-year post-mortem period.42 Moreover, the protection of the legislation had been expanded to prevent the reproduction, publication and public performance of the copyright work (or any translation of the work),43 as well as granting certain copyright owners rights concerning the adaptation and recording of their work.44 In short, 36 See for example Burrell, R. (2001), ‘Reigning in Copyright Law: Is fair use the answer?’, Intellectual Property Quarterly, p. 361. 37 On the Berne Convention in general see Ricketson, S. (1987), Berne Convention for the Protection of Literary and Artistic Works 1886–1987, London: Centre for Commercial Law Queen Mary College/Kluwer. 38 Royal Commission on Copyright (1878), Report of the Commissioners, London: HMSO, p. vii. 39 Copyright Act 1911, 1 & 2 Geo. 5, c. 46. The copyright regime was at this time however under review. The Gregory Committee had been established to investigate into the state of the law and had issued its Report in 1952 (Cmd 8662). 40 Section 1; for the definition of both dramatic and artistic works see s. 35(1). 41 Section 19(1). 42 Section 3; records and other mechanical recordings were protected for ‘fifty years from the making of the original plate from which the contrivance was derived’ (s. 19(1)). As for photographic works, see infra n. 45. 43 Section 1(2)(a). 44 For example: the owner of the copyright in a dramatic work had the right to convert it into a novel or non-dramatic work; the owner of the copyright in a novel or other non-dramatic work or of an artistic work (but not a musical work) was granted the right to convert it into a dramatic work; the owner of the copyright in a literary, dramatic or musical work (but not an artistic work) was granted the right to record and film their work; see s. 1(2)(b)(c)(d) and s. 2(2)(3).

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the rights of copyright owners had been comprehensively enlarged and strengthened.45 There were, however, various features to the then current legislative regime which sought to safeguard the interests of the individual user of a work in particular, as well as the public in general. The legislation allowed the use of insubstantial amounts of copyright works,46 as well as attempting to codify the various incidents of fair use which had been developed by the judiciary throughout the eighteenth and nineteenth centuries.47 The most significant of these were set out in s. 2(1)(i) which provided that ‘any fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary’ would not constitute an infringement of the copyright in the original work.48 In addition, following the death of the author of any literary, dramatic or musical work which had previously been published or performed in public, a compulsory licence could be obtained, from the Judicial Committee of the Privy Council, for the publication or performance of any such work, should the owner of the copyright in the work refuse to grant one.49 Significantly the legislation also provided that, should anyone wish to reproduce and sell any published work during the last 25 years of the postmortem period of copyright protection, they were free to do so provided they 45 Photographs proved to be the exception in this regard. Under the Copyright Act 1862 the ‘author of any painting, drawing and photograph’ received copyright protection in the work for the lifetime of the author plus an additional 7 years after his death. Under the 1911 Act however photographs, unlike other artistic works, were to be protected for 50 years only ‘from the making of the original negative from which the photograph was derived’, and the ‘author’ of the photograph was defined as the ‘owner of [the] negative at the time when such negative was made’ (s. 21). Moreover, when the Gregory Committee reported upon the current state of UK copyright law in 1952 they recommended that copyright protection for photographic works be reduced from 50 to 25 years ‘from the date upon which the photograph was taken’. For more on photography and copyright in nineteenth- and early twentieth-century Britain see Deazley, R. (2003), ‘Struggling with Authority: The Photograph in British Legal History’, History of Photography, p. 236. 46 Section 1(2) set out that copyright operated to protect the work ‘or any substantial part thereof’; by implication it was considered acceptable to perform any of the acts restricted by copyright in relation to an insubstantial part of the work in question. 47 For a commentary on the fair dealing provisions within the 1911 Act and their relationship with the nineteenth-century case-law see Burrell, supra n. 36. 48 To complement this fair dealing provision concerning newspaper summary, the Act also set out that ‘it shall not be an infringement of copyright in an address of a political nature delivered at a public meeting to publish a report thereof in a newspaper’; s. 20. 49 1911 Act, s. 4. No doubt the purpose behind this provision was a willingness to ensure that no copyright owner would use the legislation to suppress the dissemination of the work in question and withhold it from public consumption.

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gave sufficient notice to the owners thereof and this was accompanied by a statutorily agreed royalty payment.50 By the turn of the following century, the copyright regime had undergone two substantial legislative revisions in the guise of the Copyright Act 195651 and the Copyright Designs and Patents Act 1988 (hereafter, the CDPA), the second of which now underpins the current order.52 By comparison with the 37 sections of the 1911 statute, the provisions within the CDPA concerning copyright had increased five fold. Works protected now include broadcasts and cable programmes,53 computer programs,54 preparatory design material for computer programs,55 databases (whether paper or electronic),56 and the typographical arrangement of published editions.57 The copyright term for original literary dramatic, musical and artistic works, as well as films,58 had been extended to include a 70-year post mortem term.59 The nature of the acts which the copyright owner could prevent others from engaging in (that is, the acts restricted by copyright) were once again expanded to incorporate the right to reproduce, publish, rent or lend, perform or broadcast copyright material, or to perform any of these acts in relation to an adaptation of the copyright work.60 Moreover, certain moral rights were created in relation to original 50

Ibid., s. 3. Copyright Act 1956, c. 74. 52 Copyright Designs and Patents Act 1988, c. 48. 53 Section 1(1)(b). 54 Section 3(1)(b). 55 Section 3(1)(c). 56 Sections 3(1)(d) and 3A. 57 Section 1(1)(c). 58 The term of protection for films was in most cases simply 50 years from the year of first publication; see the 1956 Act s. 13 for further details. There is currently no requirement that a film be original before it will attract copyright protection, only that it not be ‘a copy taken from a previous film’; CDPA s. 5B(4). The relevant lives for determining when the 70-year post mortem term begins in relation to a film are defined as including the principal director, the author of the screenplay, the author of the dialogue, or the composer of music specially created for and used in the film; CDPA s. 13B. 59 The change was implemented by the Duration of Copyright and Rights in Performances Regulations 1995, SI 1995/3297, to ensure the UK’s compliance with the European Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights. 60 CDPA s. 16. In practice not all of these exclusive rights applied to all types of copyright work. For example, while the distribution right extended to all types of copyright work (s. 18(1)), the rental right did not apply to broadcasts, cable programs or the typographical arrangement of published editions (s. 18A(1)). For an excellent summary of the structure of the CDPA at this time see Christie, A. (2001), ‘A Proposal for Simplifying United Kingdom Copyright Law’, European Intellectual Property Review, p. 26. 51

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literary, dramatic, musical and artistic works, as well as films, such as the right to be identified as the author of the work in question, as well as the right to object to the derogatory treatment of the work.61 Turning to the copyright user, the nature of the acts permitted by the legislation without the need for permission from the copyright owner had undergone significant transformation also. The five uses set out in s. 2(1)(i) of the 1911 Act were now set out in two separate sections, ss 29 and 30. Fair dealing for the purpose of research and private study no longer extended to any copyright work, but only to literary, dramatic, musical and artistic works.62 Fair dealing for the purpose of criticism or review (of the copyright work in question or another work) was permitted in relation to any copyright work, so long as the use was accompanied by a sufficient acknowledgement.63 Finally, the exception relating to ‘newspaper summary’ had been altered to allow fair dealing with any copyright work, other than a photograph, for the purpose of ‘reporting current events’, once again, so long as the use was accompanied by a sufficient acknowledgement.64 While the provisions within the 1911 Act relating to compulsory and automatic licences had been abandoned with the enactment of the 1956 Act, a raft of additional more specific permitted acts had been introduced, both in 1956 and 1988, to allow for the use of copyright material in certain educational contexts (for example, for the purposes of instruction or examination),65 to facilitate library and archival work (for example, in supplying copies of periodical articles to library users engaged in research or private study),66 in the interests of public administration (for example, for the purposes of parliamentary or judicial proceedings),67 as well as a range of additional miscellaneous situations (for example, to facilitate public recitations from literary or dramatic works, or the representation of certain artistic works on public display).68 Since 2000, there have been a number of further alterations to the copyright 61 Sections 77–83; the other moral rights introduced by the CDPA into UK copyright law included the right to object to the false attribution of work (s. 84) and the right of privacy in certain photographs and films (s. 85). As to the subsistence and exercise of these moral rights see ss 86–89. 62 Section 29(1); note that this section does also set out that fair dealing for such purposes would not infringe the typographical arrangement of a published edition. 63 Section 30(1); ‘sufficient acknowledgement’ is defined in s. 178. 64 Section 30(2); in this regard the Act set out that no acknowledgement was required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme; s. 30(3). 65 CDPA, s. 32. 66 CDPA, s. 38. 67 1956 Act s. 6(4); CDPA s. 45. 68 1956 Act ss 6(5) and 9; CDPA ss 59 and 62.

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regime. They touch upon a range of matters including: the conditions under which educational establishments are able to make recordings of broadcasts and cable programmes;69 ensuring that the provisions of Part I of the CDPA are compatible with the requirements of the European E-commerce Directive (2000/31/EC);70 the coming into force of the Copyright (Visually Impaired Persons) Act 2002;71 and the operation of Part I of the CDPA in Bermuda,72 as well as in various countries who have recently acceded to the Berne Convention, such as Armenia, Jordan and Tonga.73 Of greatest import however, are the changes implemented by the recent Copyright and Related Rights Regulations 2003,74 which came into force on 31 October 2003. These Regulations were enacted to implement the provisions of the European Information Society Directive (the Information Society Directive),75 which sought, amongst other goals, to address the various challenges and threats that the emergence of digital technology and information exchange on the internet generated for copyright owners.76 The restricted act of broadcasting a copyright work has been replaced by a right to prevent the communication of the work to the public, whether by way of broadcast, or in simply making it available to the public by electronic transmission in a manner which allows members of the public to access the 69 See the Copyright (Certification of Licensing Scheme for Educational Recording or Broadcasts) (Open University) Order 2003, SI 2003/187, the Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts and Cable Programmes) (Educational Recording Agency Limited) (Amendment) Order 2003, SI 2003/188, and the Copyright and Related Rights Regulations 2003, SI 2003/2498. 70 Electronic Commerce (EC Directive) (Extension) (No. 2) Regulations 2003, SI 2003/2500. 71 Copyright (Visually Impaired Persons) Act 2002 (Commencement) Order 2003, SI 2003/2499. The 2002 Act enables the transfer of works to formats which are accessible to visually impaired persons without infringing the copyright in the original work; Copyright (Visually Impaired Persons) Act 2002, c. 33. 72 Copyright (Bermuda) Order 2003, SI 2003/1517. 73 Copyright (Application to Other Countries) (Amendment) Order 2003, SI 2003/774. See also: the Legal Deposit Libraries Act 2003, c. 28; the Legal Deposit Libraries Act (Commencement) Order 2004, SI 2004/145; the Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Order 2005, SI 2005/222; the Copyright (Educational Establishments) Order 2005, SI 2005/223; the Copyright and Performances (Application to Other Countries) Order 2005, SI 2005/852; and the Copyright (Gibraltar) Order 2005, SI 2005/853. 74 Copyright and Related Rights Regulations 2003, SI 2003/2498. 75 Directive on the harmonisation of certain aspects of copyright and related rights in the information society, 2001/29/EC. 76 For a general overview of the various issues concerning intellectual property and the internet see WIPO, ‘Intellectual Property on the Internet: A Survey of the Issues’, available at www.ecommerce.wipo.org.

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work from a place and at a time chosen by them.77 This new communication right comes accompanied by an equally new criminal offence of communicating works in the course of a business or, if not in the course of a business, then in a manner which prejudicially affects the owner of the copyright.78 At the same time as bolstering the position of the copyright owner, the Regulations also further circumscribe the availability of certain of the acts permitted within the CDPA for the copyright user.79 This brief exposition of copyright’s historical trajectory is instructive in two basic respects. In the first place it operates to clearly reveal the truly contingent nature of copyright as property. For example, prior to 1 December 1996, a copyright owner could not prevent the lawful owners of copies of his work renting those copies to others; after that date, the copyright owner could do so.80 Again, on 30 October 2003, any academic (or indeed anyone else) wishing to fairly deal with another’s copyright work to further their own research agenda was free to do so; the next day the same academic could only do so if that research agenda was of a non-commercial nature.81 Other examples might be drawn upon,82 but there hardly seems any need. The second reason for revisiting this heavily truncated history is that the actual trajectory itself lays bare a story of an expanding process of proprietarianist enclosure of the public domain, both in terms of those abstract things which can be copyright works, as well as the heightened nature of the burden of non-interference vis-à-vis those abstract things being placed upon the public at large. Of late, as the rights of the copyright owner have increased, so the freedoms of the lawful copyright user have beaten a retreat. Moreover, underpinning this movement is an increasingly powerful process of conceptual reification, and the emergence of a ubiquitous discourse of property rights 77

Regulation 6, amending CDPA s. 20. At present, anyone guilty of this new criminal offence can face up to 2 years imprisonment if convicted on indictment; reg. 26, amending CDPA s. 107. 79 Concerning the permitted acts set out in the CDPA, the Regulations affect the operation of ss 28 (making of temporary copies), 29 (research and private study), 30 (criticism, review and news reporting), 32 (things done for the purposes of instruction or examination), 35 (recordings by educational establishments of broadcasts), 36 (reprographic copying by educational establishments), 38 and 39 (copying by librarians), 50 (observing, studying and testing computer programs), 61 (recordings of folksongs), 63 (advertising artistic works for sale), 67 (playing sound recordings for clubs, societies, etc.), 70 (recording for the purpose of time-shifting), 71 (photographs of broadcasts), 72 (public showing or playing of broadcasts), 73 (concerning the reception and retransmission of broadcasts), and 74 (sub-titling copies of broadcasts). See Chapter 4 nn. 57–62, and accompanying text. 80 Copyright and Related Rights Regulations 1996, SI 1996/2967. 81 Copyright and Related Rights Regulations 2003, SI 2003/2498. 82 See for example Chapter 4, n. 60, and accompanying text. 78

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(and so, human rights) which operates to naturalise that very movement, destabilise any meaningful opposition thereto, and so render it seemingly inevitable. This is not to say that changes to the law of copyright have not been needed in the face of the challenges which digital technology and the distributive power of the internet have laid down before those working in the creative industries.83 Rather it simply suggests that to rely upon the rubric of the protection of fundamental property rights as one of the main justifications for change, while certainly effective, is both misplaced and misleading.84 The emergence of such rhetoric can be traced with relative ease through the language which the legislation itself adopts: in 1911 the statute referred to the fact that ‘copyright shall subsist … in every original literary, dramatic, musical and artistic work’;85 the 1956 Act provided the same,86 but added that ‘copyright shall be transmissible by assignment, by testamentary disposition, or by operation of law, as personal or moveable property’;87 by 1988 the legislation set out, quite unequivocally, that ‘[c]opyright is a property right’.88 This illustration may be overly simplistic, but the point remains valid nevertheless. Similarly, consider the preamble to the Information Society Directive in providing that ‘[t]he proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest’.89 Elsewhere the preamble notes that high levels of protection for intellectual properties are ‘crucial to intellectual creation’ given that they ‘ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large’ – thus has intellectual property been recognised ‘as an integral part of property’.90 The most overt recognition of intellectual property as fundamental property right can be found, of course, in the provisions of the Charter finalised the previous year. To speak of the state granting longer, more 83 Nor, however, does it mean that the changes which have in fact been implemented are necessarily appropriate. 84 See for example the comments in: Benkler, Y. (1999), ‘Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain’, New York University Law Review, p. 354; Lemley, M.A. (1997), ‘Romantic Authorship and the Rhetoric of Property’, Texas Law Review, p. 873; and Vaver, D. (2000), ‘Intellectual Property: The State of the Art’, Law Quarterly Review, p. 621. 85 1911 Act, s. 1(1). 86 1956 Act, s. 2(1). 87 1956 Act, s. 36(2) (emphasis added). 88 CDPA, s. 1(1) (emphasis added). 89 Directive on the harmonisation of certain aspects of copyright and related rights in the information society, 2001/29 EC, para. 3. 90 Ibid., para. 9.

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extensive and more robust monopolies is one thing; to legislate in defence of a fundamental human right is another thing altogether. What is being suggested here is that the conceit and language of intellectual property as natural property right has provided one of the key foundations for the rampant expansionism which is the story of copyright law throughout the twentieth and into the twenty-first century. Consider, for example, the decision of the Court of Appeal in Ashdown v. Telegraph Group [2002] (Ashdown)91 – a case which concerned questions as to the existence and nature of a nonstatutory public interest defence to allegations of copyright infringement, as well as the import of the coming into force of the Human Rights Act 1998 upon that issue.92 The decision of the Court of Appeal delivered by Phillips MR was as follows: that at common law there did exist as a public interest defence; that the court could envisage a situation in which an individual’s right to freedom of expression might in effect ‘trump’ the rights of a copyright owner; and that the public interest defence could provide the mechanism for accommodating just such a situation.93 The decision has been discussed at length elsewhere and will not be dwelt upon here.94 Of note, however, is the conceptual model of copyright that underpins the court’s decision. In a brief aside on ‘[t]he nature of copyright’ the Master of the Rolls baldly (and as we have seen, incorrectly) asserts that ‘[c]opyright has its origins in the common law, but is now derived from the provision of the 1988 Act’;95 that is, before any statute there existed copyright, in much the same way as there existed land, foxes, and valuable jewels.96 In less than 20 words Phillips MR positions the nature and history of copyright squarely within Mansfield’s conception of copyright as an independent authorial property right subject to subsequent statutory qualification. 91

Ashdown v. Telegraph Group Ltd [2002] 1 Ch 149. Chapter 4, n. 69, and accompanying text. 93 Phillips MR commented in the following terms: ‘Now that the Human Rights Act 1998 is in force, there is the clearest public interest in giving effect to the right to freedom of expression in those rare cases where this right trumps the rights conferred by the 1988 Act. In such circumstances we consider that s. 171(3) of the Act permits the defence of public interest to be raised’; Ashdown, pp. 170–71. This did however come with a word of warning: ‘We do not consider that this conclusion will lead to a flood of cases where the freedom of expression is invoked as a defence to a claim for a breach of copyright’; ibid., p. 170. 94 See for example: Griffiths, J. (2002), ‘Copyright law after Ashdown – Time to Deal Fairly with the Public’, Intellectual Property Quarterly, p. 240; Birnhack, M. (2003), ‘Acknowledging the Conflict between Copyright Law and Freedom of Expression under the Human Rights Act’, Entertainment Law Review, p. 24. 95 Ashdown, p. 163. 96 See Williams, J. (1998), ‘The Rhetoric of Property’, Iowa Law Review, pp. 277 and 284–90. 92

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The implications of Phillips MR’s observation go even further than this however. Consider, for example, the exclusive right to perform a work in public today, which right is currently set out in ss 16(1) and 19 of the CDPA. Its origins lie in the mid-nineteenth century with the Act to Amend the Laws relating to Dramatic Literary Property 1833, which provided that from the date of its passing ‘the author of any tragedy, comedy, play, opera, farce or other dramatic piece or entertainment, composed, and not printed and published by the author thereof or his assignee … shall have as his own property the sole liberty or representing, or causing to be represented, at any place of dramatic entertainment whatsoever’; should the author ‘print and publish’ the work then he was to have the same right of representation but only for 28 years from the day of publication, or if he was still living at the end of that time, for the ‘residue of his natural life’.97 That the legislation confers a presumably perpetual right to perform a work so long as that work is never made public in print is interesting if not surprising.98 In Macklin v. Richardson (1770) (Macklin), decided after Millar but before Donaldson, the plaintiff was the author of a farce entitled Love a la Mode which had never been printed or published.99 The defendants did not perform the work, but rather published it (having employed someone to attend a performance of the play and transcribe it) in their periodical the Court Miscellany, or Gentleman and Lady’s Magazine. Whether one sided with Mansfield or Yates in Millar, or with Blackstone or Camden in Donaldson, all were in agreement that the publishing of a previously unpublished work was an act that infringed an author’s rights at common law.100 The significant aspect of Macklin was that the performance of the work was not considered to be a publication of the work such as to denude the author of the right to first publication in print. Perhaps even more significantly, in the 97 An Act to Amend the Laws relating to Dramatic Literary Property 1833, 3 & 4 Will., c. 15, s. 1. 98 As to whether the first performance of a play abroad could amount to publication under the 1833 Act see: Boucicault v. Delafield (1863) 1 H&M 597; Boucicault v. Chatterton (1876) 35 LTR 541; Boucicault v. Chatterton (1876) 5 LR (Ch) 267. 99 Macklin v. Richardson (1770) Amb 694. Indeed, the plaintiff jealously guarded the manuscript copy of his play; the report reads: ‘[The play] was performed, by his particular permission, at the different theatres, several times in 1760, and the following years, but was never printed or published by him. And it appeared in evidence, That it never was acted but by his permission: That when the farce was over, he used to take the copy away from the prompter: That two of the actors applied to him, to have it performed at their benefits; and that he made them pay, once 20 guineas, and at another time 30 guineas, for one night’s performance of it’; ibid., p. 694. 100 Of course these various jurists and judges were not in agreement as to why this was the case, as we have seen.

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50 years following the decision, there appears to have been only two subsequent cases brought before the courts concerning dramatic works. The first of these was Coleman v. Wathen (1793), which we have previously considered.101 The second was Whittingham v. Wooler (1817) and the correctness of the decision in Macklin was simply not called into question.102 But again, the important factor in all of this, rightly or wrongly, was that the plays had not been published in print.103 As to the right to perform the work after it had been published, this was something entirely new, and even the most ardent advocates of copyright at common law thought nothing of accepting that a post-publication performance right was entirely a creature of statute. Marsh v. Conquest (1864) concerned whether an assignment under the 1833 Act, which had not been registered in accordance with the provisions of the Copyright Act 101

Coleman v. Wathen (1793) 5 D&E 245; see Chapter 2, n. 15 and accompanying

text. 102 Whittingham v. Wooler (1817) 2 Swan 428 (Whittingham). Whittingham provides an interesting early nineteenth-century exposition of the fair user doctrine. In it the defendants argued that they were only reproducing such passages from the plaintiff’s play as was necessary to review and critique the piece in their magazine The Stage; Grant MR agreed with them: ‘[The Defendant] says that the publication is in the nature of a magazine or review, consisting of criticisms, and extracts to serve as a foundation for the criticisms; and, on a motion to dissolve the injunction, the question would have been, Whether the Defendant had transgressed certain allowed limits which are not easily defined? I should think, in such a case, that he had not transgressed those limits. It may, perhaps, be fair enough to say, that if the Defendant had inserted in one number a criticism, and in a following number mere specimens, that would have been the case of an unprotected plagiarism; but here the Defendant has given no entire act or scene, but only broken and detached fragments of the piece in question’; ibid., p. 431. 103 Contrast Murray v. Elliston (1822) 5 B&Ald 657 in which Byron’s work Marino Foliero, Doge of Venice had been published before being performed at the defendant’s theatre the Theatre Royal, Drury Lane. The court held that in the circumstances no action could be maintained by the plaintiff. For an interesting consideration of the nature of the performance right, including an exploration of the English case-law on copyright at common law, as well as Macklin, see the US case of Keene v. Wheatley (1860) 14 F.Cas. 180. In this decision Cadwalader J also accurately captures the significance of Jeffreys v. Boosey (1854) 4 HLC 815 (Jeffreys) in noting that in England opinions upon the common law right ‘continued to differ until 1854, when the preponderance of authority was there determined, conformably to the opinion of the supreme court of the United States [that is, in Wheaton v. Peters (1834) 33 US 591]. This preponderance was thus determined in England by the concurring opinions of Lords Cranworth, Brougham and St Leonards, in the house of lords, against the views which a majority of the judges of the courts of law again expressed … In cases not legislatively provided for, the public circulation of a literary composition thus authorizes any person to republish it from any copy so circulated’; Keene, pp. 203–204.

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1842,104 was nevertheless sufficient to enable the assignee to claim for the statutory penalties for an unlawful performance of the work. In holding that the plaintiff could recover under the legislation, none other than Erle CJ observed: It is true that the sole right of representation did not exist at common law … [b]ut, the statute having made that a property, is it not subject to all the incidents of property, one of which is that it shall be assignable? Unless there be anything in the statute to prohibit it, I am prepared to hold that the power to assign the right of representation does exist.105

Clearly, historically speaking, the performance right in a published work was never contemplated as anything that could be protected at common law. Yet, whether intentionally or not, Phillips MR’s comment grounds copyright as defined today within the tradition of Mansfield. Absent further qualification, Phillips MR implies that the full range of protected subject-matter, as well as the protections provided within today’s legislation, have some earlier 104

An Act to Amend the Law of Copyright 1842, 5 & 6 Vict., c. 45; s. 22 of the 1842 Act provided that ‘no assignment of the copyright of any book consisting of or containing a dramatic piece or musical composition shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical work, unless an entry in the said registry book shall be made of such an assignment’. 105 Marsh v. Conquest (1864) 17 CB (NS) 418, p. 426. In Toole v. Young (1874) 9 LR (QB) 523, the question for the court was whether an author who dramatised his own novel, could prevent another playwright from dramatising it also. In holding for the defendant, Cockburn CJ (who was at least ambivalent as to the existence of a common law copyright in Coyne v. Maxwell (1865), The Times, 7 and 10 June 1865, see Chapter 3) here commented: ‘The author of a novel is not protected against having his novel put into the form of a drama by different persons, and it seems to make no difference that he himself has dramatised it. When an author has once given his novel to the world, he cannot take away from other persons the right to dramatise it by himself transforming it into a drama, subject to this, that they must not borrow from his drama but only from his novel. The author of a drama is not protected by the common law, and what the defendant has done is not forbidden by any statute’; ibid., p. 527. In Lacy v. Rhys (1864) 4 B&S 873 Cockburn CJ was careful to distinguish between the copyright in a dramatic piece and the ‘right of acting’ provided by the 1833 Act; ibid., pp. 883–84. In the same decision, Crompton J reminded the litigants that ‘[t]he assignment of the copyright [in a dramatic piece] is treated as a distinct matter from the right of representing or performing the dramatic piece’; ibid., p. 885. In Cumberland v. Copeland (1861) 7 H&N 118, Pollock CB observed that the right in question ‘is a right under the 3 & 4 Wm. 4, c. 15, which created a new species of property’ and continues that once created ‘it is as much a property as the authorship of a book. The statute says that the author of any dramatic piece, or his assignee, “shall have as his own property the sole liberty of representing” it’; ibid., p. 127. Given Pollock CB’s earlier opinions upon a common law copyright, his comments here should not surprise.

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foundation at common law. Without proper context, this otherwise throwaway observation provides the expanded boundaries of the current copyright regime with an unwarranted weight of pre-legislative historical provenance, which in itself only serves to underline the naturalness and inevitability of the regime. This is further compounded when Phillips MR later states that any interference with copyright, in the interests of the right of free expression, ‘should not normally carry with it the right to make free use of another’s work’.106 Put another way, the interference with an individual’s property right should, in the ordinary course of things, carry fair compensation. For those who advocate the toleration of the statutory permitted acts only as an economically efficient response to a situation of market failure, such observations are sure to be welcomed. Paul Goldstein is one such advocate, arguing recently that ‘[t]o press for free use of copyrighted expression as a legal norm is to overlook that fair use is the exception to copyright and not its rule’.107 The inability to exclude others from using the abstract object is not the norm; rather, it is the protection of the abstract object as property, incorporating a model of legitimate compensation for almost every conceivable use. Leaving for the moment the obvious and substantial historical challenge which could be brought to bear upon Goldstein’s assertion, traces of his aspiration of pay-per-use are evident in the more recent proliferation of copyright collecting societies within the last 25 years,108 a development which was positively encouraged with the enactment of the CDPA,109 as well as providing one of the foundations of the vision which the Information Society Directive (Directive) (and so the Copyright Regulations) propounds. 106

Ashdown, p. 167. Goldstein, P. (2003), ‘Fair Use in a Changing World’, Journal of the Copyright Society of the USA, pp. 133 and 148. 108 For example: the Authors Licensing and Collecting Society was established in 1977; the Publishers Licensing Society was established in 1981; the Copyright Licensing Agency was established in 1982; the Design and Artists Copyright Society was established in 1984; the Educational Recording Agency was established in 1990; Open University Worldwide was established in 1990; Christian Copyright Licensing International was established in 1991 (although it was first established within the US in 1988); the Newspaper Licensing Agency was established in 1996; Video Performance Limited was established in 2000. 109 A number of the ‘permitted acts’ first introduced by the CDPA were accompanied by the proviso that should a licensing scheme exist to regulate the identified use, then the exception provided within the legislation would not apply. See for example: s. 35, recording by educational establishments of broadcasts and cable programmes; s. 36, reprographic copying by educational establishments of passages from published works; s. 60, abstracts of scientific or technical articles; s. 74, provision of sub-titled copies of broadcasts or cable programme for the deaf or hard of hearing. 107

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While noting that the Directive ‘should seek to promote learning and culture by protecting works and other subject-matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching’,110 its preamble continues that ‘the objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights’.111 One of the problems which the Directive sought to address was the ‘negative effect’ which the nationally divergent permitted acts were having upon the functioning of the internal market; the goal was that ‘such exceptions and limitations should be defined more harmoniously’.112 To this extent the Directive introduced two types of permitted act. The first and only compulsory exception relates to the transient or incidental reproduction of a work, as part of a technological process, whose sole purpose was to enable either a transmission in a network between third parties by an intermediary, or some other lawful use, so long as the reproduction has no independent economic significance.113 Articles 5(2) and (3), by contrast, provide an exhaustive list of exceptions which Member States may adopt in relation to the reproduction right, so long as they are only applied in ‘certain special cases’ which do not conflict with the ‘normal exploitation of the work’ and ‘do not unreasonably prejudice the legitimate interests of the rightholder’.114 These range from copies made by individuals for private non-commercial purposes,115 or the incidental inclusion of a work in other materials,116 through to the use of works for the benefit of individuals with a disability,117 or by the media in reporting current events.118 As to these exceptions however, the preamble sets out that they ‘should not … prevent the definition of contractual relations designed to ensure fair compensation for the rightholders insofar as permitted by national law’.119 In short, the Directive envisages the possibility of collective or individual licensing schemes designed to ensure payment (fair compensation) to the copyright owners for any of these permitted acts other than that set out in A.5(1) (that is, transient or incidental reproduction of no independent economic significance). The philosophy of the Directive is even more transparent when one 110 111 112 113 114 115 116 117 118 119

Information Society Directive, para. 14. Paragraph 22. Paragraph 31. A.5(1). A.5(5), otherwise known as the three-step test. A.5(2)(b). A.5(3)(i). A.5(3)(b). A.5(3)(c). Paragraph 45.

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considers the protections for technological protection measures (TPMs)120 which it sets in place,121 as well as the way in which the Directive addresses potential conflicts between such TPMs and the existing statutory permitted acts. As was discussed in Chapter 4, the Directive sets out that Members States should ‘take appropriate measures’ to ensure that the TPMs do not interfere with any lawful user’s enjoyment of certain of the permitted acts but not all of them.122 As for those not included, such as use of a copyright work for the purpose of criticism or review,123 the Member State need do nothing.124 Moreover, even in relation to those permitted acts which enjoy this presumption of non-interference, the Member State only has an obligation to act in the absence of any ‘voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned’ (or in other words, the existence of an appropriate licensing scheme).125 Further still, the Directive establishes that no presumption of non-interference exists whatsoever in relation to copyright material supplied to the user on-demand and online.126 120 That is, a technological measure which a copyright owner relies upon to regulate the manner in which users both access and copy the owner’s material. These might include any method of encrypting, scrambling or otherwise transforming the copyright material should anyone attempt to unlawfully access the material or copy from it (whether lawfully or unlawfully accessed). 121 Information Society Directive, A.6(1)(2)(3). See also Copyright and Related Rights Regulations 2003, reg. 24 introducing CDPA s. 296ZA–296ZF; the CDPA did previously protect such copy-protection measures but only in relation to copyright works issued to the public in electronic form (CDPA s. 296, as it was before 31 October 2003). 122 See A.5(2)(a)(c)(d)(e) and A.5(3)(a)(b)(e); the list of permitted acts to which this obligation applies can also be found in Part 1 of Sch. 5A of the Copyright and Related Rights Regulations 2003. The Copyright Regulations set out that ‘where the application of any effective technological measure … prevents a person from carrying out a permitted act in relation to that work’ that person can issue a notice of complaint to the Secretary of State who has available to him a number of possible courses of action to remedy the situation; reg. 24, implementing s. 296ZE(2). The Secretary of State ‘may give to the owner of that copyright work … such directions as appear to the Secretary of State to be requisite or expedient for the purpose of – (a) establishing whether any voluntary measure or agreement relevant to the copyright work the subject of the complaint subsists; or (b) (where it is established that there is no voluntary measure of agreement) ensuring that the owner … makes available to the complainant the means of carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act’; s. 296ZE(3). 123 A.5(3)(d). 124 A.6(4). 125 Ibid. 126 A.6(4) states: ‘The provisions of the first and second subparagraphs shall not apply to works or other subjectmatter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them’.

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Comment upon these provisions within the Directive has been extensive;127 Dusollier, for one, astutely describes the Directive as representing a shift from ‘copyright as public law to copyright as a regime of private orderings’.128 It is suffice for our purposes to observe that the Directive, epitomizing the culmination of copyright’s trajectory throughout the twentieth century, evidences an almost breathtaking inversion of the social compact at the centre of copyright doctrine in the reign of Queen Anne.129 At that time, Parliament legislated with the primary purpose of encouraging ‘learned men to compose and write useful books’,130 as well as bringing a degree of security and regulation to a book trade in supposed turmoil following the collapse of the Licensing Act 1662.131 The booksellers had petitioned that an author had an ‘indisputable right of publishing’ his work at common law, and indeed the preamble to the first draft of the Bill did make reference to the recent liberties taken with authors’ works ‘in whom the undoubted Property of such Books and Writings, as the Product of their Learning and Labour, remains’; this rhetoric however was subsequently dropped as the Bill passed through the House of Commons. Thus, that early model of granting a time-limited privilege, to print, distribute and sell books free from market interference, in the interest of the marketplace of ideas and, by extension, the public at large, has slowly but surely been subsequently transformed into a self-evident, selfjustifying raison d’étre for reducing almost all copyright owner-user interactions to a commerce baseline.132 127 See for example: Braun, N. (2003), ‘The Interface between the Protection of Technological Measures and the Exercise of Exceptions to Copyright and Related Rights: Comparing the Situation in the United States and in the European Community’, European Intellectual Property Review, p. 496; Elkin-Koren, N. (2001), ‘A publicregarding approach to contracting over copyrights’, in Dreyfuss, R., Zimmerman, D.L. and First, H., Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society, Oxford: Oxford University Press, pp. 191–221; Heide, T. (2002), ‘The Approach to Innovation Under the Proposed Copyright Directive: Time for Mandatory Exceptions?’, Intellectual Property Quarterly, p. 215; Heide, T. (2003), ‘Copyright, Contract and the Legal Protection of Technological Measures – Not “The Old Fashioned Way”: Providing a Rationale to the Copyright exceptions Interface’, Journal of the Copyright Society of the USA, p. 315; Loren, L.P. (2002), ‘Technological Protections in Copyright Law: Is More Legal Protection Needed?’, International Review of Law Computers & Technology, p. 133. 128 Dusollier, S. (2003), ‘Exceptions and technological measures in the European Copyright Directive of 2001 – an empty promise’, International Review of Industrial Property and Copyright Law, p. 62. 129 Deazley, supra n. 28. 130 Statute of Anne, Preamble. 131 See for example Patterson and Rose, supra n. 31. 132 Imagine for example, being unable to recite passages from Ulysses, by Joyce, perhaps the twentieth century’s greatest work of literature, in the home town of the

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Moreover, as we continue to embrace this reification of copyright, with its rhetorical paradigm of copyright as property right qua human right, and allow it to dominate copyright’s future trajectory, we lose the opportunity to engage in other, arguably more appropriate forms of copyright discourse. One of the profoundly undesirable results of this conceptual juggernaut is that it operates to occlude other models of conceiving of, and talking about, intellectual property, at least within the realms of the policymaker, the legislature, and the judiciary. In short, it precludes what Waldron has referred to as any form of ‘oppositional analysis’,133 despite that, as we have seen, it has little defensible historical or theoretical provenance. Historically, the conceit of common law copyright was definitively rejected not once but twice. From a theoretical perspective, as argued above, if copyright is anything, it is a thing which is akin to a chose in action that nevertheless functions like a property right in rem – an institutional fact determining the existence of a state sanctioned monopoly. It adheres to no rational understanding of the notion of excludability in that once publicised (whether orally or captured in tangible form) it is beyond the power of an author to exclude others from making use of his or her original expression; nor will use by another exhaust the original expression or prevent either the author (or indeed anyone else) making an exactly identical and concurrent use of the same.134 Neither does it accord with any sensible concept of separability. An author’s original expression, by definition, cannot be given, traded or licensed to another so as to become the original expression of that other – the original expression must always be contingent upon, and so linked to, its originating author. Both historical and theoretical analyses suggest that the logical manner in which to discuss intellectual property is not that the user (or the state on behalf of the user) should have to articulate, defend and pay for every action which encroaches upon the author’s property, but rather that the author or owner (or the state on behalf of the same) should have to articulate and defend every monopoly use of the intangible good which encroaches upon the public’s freedom to engage with that intangible good. This, of course, is not the current copyright paradigm; nor is it an analysis for which the language of current author’s birth, to mark the centenary celebration of Bloomsbury, without having to make payment to the author’s grandson for the privilege of doing so; ‘Copyright row threat to “Ulysses” centenary’, The Independent on Sunday, 16 June 2004. For an excellent account of the historical trajectory of the development of patents (from ‘privileges’ to ‘rights’) see Bracha, O. (2004), ‘The Commodification of Patents 1600–1836: How Patents Became Rights and Why We Should Care’, Loyola of Los Angeles Law Review, p. 177. 133 Waldron, supra n. 14, p. 887. 134 Use by another, such as the publication of the original expression, may undermine the value of that original expression to the author, but that is not in point.

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copyright discourse allows sufficient room. What is needed is a new terminology.

ON INTELLECTUAL PROPERTY FREEDOMS AND INTELLECTUAL PROPERTY PRIVILEGES The argument sketched out above runs as follows: that the Charter of the Fundamental Rights of the European Union encapsulates what might be described as the dominant copyright paradigm; that one of the main reasons why this paradigm exerts such powerful intellectual and legal force lies with the rhetoric which underpins it – that of copyright as natural property right, and of property right as fundamental human right. Moreover, this rhetoric, prevalent in almost every aspect of contemporary intellectual property discourse, is problematic in that it functions to both drive the development of copyright doctrine, as well as preclude other forms of historically and theoretically more defensible (indeed accurate) ways of discussing both copyright and copyright’s future progress; that is, the current rhetoric of copyright defines what it means to speak of copyright. Finally, it is suggested that what is needed is a more accurate and articulate language (one might suggest a more value-neutral language) with which to discuss and define copyright policy. What is proffered instead is the language of Intellectual Property Freedoms (IPFs) and Intellectual Property Privileges (IPPs), and in that order.135 Three hundred years ago copyright did not exist. Daniel Defoe had, however, just penned and published his An Essay on the Regulation of the Press in which, at the same time as attacking the notion of reintroducing a prepublication licensing system to censor the press, he exhorted that Parliament might pass a law to prevent an abuse upon authors which he considered ‘every jot as unjust as lying with their wives, and breaking up their houses’: ‘presspiracy’.136 The publication of Defoe’s tract signalled the start of his involvement in the campaign which would ultimately result in the passing of the Statute of Anne 6 years later.137 However, while those 6 years elapsed, anyone who published a book did so in the knowledge that there was nothing 135 One might also ponder whether flowing from these various IPFs and IPPs there might (or indeed should) also exist Intellectual Property Duties but that is a debate for another time. 136 Defoe, D. (1704), An Essay on the Regulation of the Press, reprinted by the Luttrell Society (1958), Oxford: Blackwell, p. 27. 137 The Act was passed in April 1710 but, as was the convention at the time, was considered to have effect as if it had been passed at the start of the regnal year, that is in September 1709.

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that could be done to prevent any one else reprinting and publishing the same (other than to rely upon the operation of the pre-existing, informal, pressurebearing structures within the publishing trade). During this time not one single case was brought before the common law courts to prevent such ‘presspiracy’. Authors and the publishers to whom they sold their manuscripts had no property upon which to base a claim; they had no rights in rem. There did not exist any duty of non-interference on the part of the public – they were free to do with the abstract object, the text, as they wished. In the absence of statutory intervention all were, and would still be today, free to do with the work as they wished (other than to claim that original expression as their own) – a state of IPFs. With the intervention of the legislature (in 1710) and the introduction of a time-limited monopoly to exploit the abstract object, vested (in the first place) in the original author of the same, there now exists, as a matter of institutional fact, a duty placed upon others to exclude themselves from certain statutorily defined uses of the text (in this case printing, publishing and selling the text). This interference with the existing IPFs requires justification; this justification takes the form of the broadly utilitarian argument concerning the encouragement of education, an increased production of ‘useful books’, the regulation of the booksellers’ marketplace, and a more buoyant marketplace of ideas. Thus, we now have IPFs (the freedom to make such uses as are not prohibited by statute, or any use in relation to those works in which the timelimited privilege has elapsed) co-existing alongside IPPs (the ability to use (exploit) in certain ways free from market interference, supported by state intervention). Just as was the case with this first intervention, any further limitations upon the existing IPFs will and should require further justification. It is in accordance with this paradigm that copyright policy should develop, rather than the model presently adopted, which model is bolstered by the current dominant discourse. As a concept however, this is hardly new or original; others have in the past made similar observations. Drahos, in 1996, published A Philosophy of Intellectual Property (A Philosophy) setting out his instrumentalist agenda. Referring to intellectual properties as ‘liberty-inhibiting privileges’, with historical roots embedded in the seventeenth century, he observes that ‘[o]ne of the reasons why intellectual property rights are no longer thought of in this way is that they are continually referred to by the aggregated term of rights. Through that process of reference they have become deeply entrenched in the discourse of private property rights’.138 ‘[T]alk about rights in 138

p. 213.

Drahos, P. (1996), A Philosophy of Intellectual Property, Aldershot: Ashgate,

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intellectual property’ he suggests ‘should be replaced with talk about privilege’.139 One hundred years prior to Drahos, Thomas Edward Scrutton published his third edition of The Laws of Copyright. As we have seen, of all the commentators on copyright in nineteenth-century Britain, Scrutton was arguably unique in rejecting an understanding of copyright which drew upon the Lockean discourse of natural property rights, in favour of one which stressed the fact that while ‘literary and artistic productions are treated as property’ that property is ‘created in, and limited by, the interests of the community’. In Scrutton’s opinion, copyright was and should be ‘communistic’ in character.140 He might well be considered the founding father of the modern academic instrumentalist school. If Scrutton founded the school, Drahos is certainly one of its most strident and vocal contemporary acolytes. Consider however Information Feudalism: Who Owns the Knowledge Economy? (Information Feudalism)141 his most significant work since A Philosophy. Given the earlier plea to move ‘to an oldfashioned way of talking’, that is, to the language of ‘monopoly privileges’,142 it is somewhat curious to read through the introductory chapter to Information Feudalism without coming across one single use of the term, as compared with the 34 references to ‘intellectual property rights’ (not to mention the 41 uses of TRIPS which, of course, is shorthand for the Agreement on Trade-Related Aspects of Intellectual Property Rights143). This is naturally a rather glib and superficial point to make, given the nature and substance of the work, and yet it does indicate the difficulty in critiquing an existing system, without embracing the language of that system, which language represents part of the reason for the system existing in its current form. In Information Feudalism there is an uneasy admixture of traditional intellectual-property-rights-speak, alongside the earlier rhetorical positioning of A Philosophy; would that there were another way.

ON WHAT WE TALK ABOUT, WHEN WE TALK ABOUT INTELLECTUAL PROPERTY144 To conclude this chapter we turn to a tale of Phil Collins – that’s right, Phil 139

Ibid., p. 200. Scrutton, T.E. (1890), The Law of Copyright, London: Clowes and Sons, p. 290. 141 Drahos P. (with Braithwaite J.) (2002), Information Feudalism: Who Owns the Knowledge Economy?, London: Earthscan. 142 Drahos, supra n. 138, p. 223. 143 One might well ask why the TRIPS acronym does not simply refer to the Agreement on Trade-Related Aspects of Intellectual Property, absent the Rights. 144 With apologies to Raymond Carver. 140

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Collins the photographer. Phil was born in 1970 the same year in which the other one, the musician, was, with the other members of Genesis, selling us Trespass.145 Throughout his life Phil has found himself the subject of much banter (often good-natured, sometimes not) based upon the simple fact that he shares his name with the other one, the musician; but not so in Vrsac. At the Yugoslav Biennial of Young Artists in 2004 Phil (the photographer) was adopted by the people of Vrsac as their ‘Official Phil Collins’.146 For Phil, Vrsac is just the first step. With sufficient grassroots support (elsewhere than in Vrsac) he hopes to begin to challenge the place of the other one, the musician, as the first point of cultural reference whenever the name ‘Phil Collins’ is invoked.147 The goal, in Phil’s mind, is that in time, when the next Phil Collins comes along he will have to suffer the ignominy of association with the photographer,148 and not the musician. Phil may or may not succeed v

v

v

v

145

Genesis (1970), Trespass, London: Stratsong. ‘sign here please’, Permanent installation, Untitled (As Yet), the Yugoslav Biennial of Young Artists, Vrsac Town Hall, Vrsac 2004, reproduced in Collins, P. (2005), yeah ….. you, baby you, Hove: Shady Lane Publications. The plaque erected in Phil’s honour at the Town Hall reads as follows (in translation): 146

v

v

WE/The Good People of Vrsac/In Honour of this Poor Kid/Phil Collins/Isn’t The Relentless Human Atrocity We Call Daily Life Difficult Enough Already/Without This?/I Mean, Imagine!/Waking Up Every Morning/And Having To Say Your Name Was Tina Turner/Every Day/All Day Long/To Everybody You Meet/Hello! My Name Is Tina Turner!/Or: Tanita Tikaram, Here, How May I Help You?/(Except She’s Not That Famous So It Doesn’t Count)/Try Ordering A Hawaiian Pizza/And Calling Yourself Pat Benatar/Try Saying It/(Without Feeling Like You’re About To Throw Up)/It Honest To God Does Not Bear Thinking About/What This Would Do To A Person./No Wonder He Turned Out like He Did:/1. Ugly (Although Can Look OK From A Distance)/2. Heavy Social Drinker (i.e. Completely Alcoholic)/3. Homosexual And Worse Still – An Indiscriminate Drug-Taker/4. Irritating Inability To Be Serious/5. Very Short Attention Span/(For Instance Starts Books But Is Unable To Finish Them) On Account Of This And Other Things Besides/(Too Numerous To Go Into Here On This Plaque)/We/The Good People Of Vrsac/Promise To Henceforth Adopt Him As/Our Own/OFFICIAL PHIL COLLINS/Give Him Some Hope/And A Place He Can Always Call Home/This Beautiful Ceremonial Plaque Honours/Our Own Vrsac Phil Collins/So/Lots Of Love Phil/And Sorry For Everything/Remember!/You have Some Good Friends Here!/And If You Ever Want To Talk About It/You Know Where We Are/We Love You Phil Collins/xxx/The People of Vrsac (i.e. Everybody Here) P.S. You Don’t Look Anything Like The Picture You Gave Us/It’s Obviously An Old One When You Were Looking Younger P.P.S. And Slimmer.’ v

v

v

v

147 Anyone reading this text can help Phil out in this regard: anytime you hear or make reference to the name Phil Collins, try to think of Phil as the first referent, and, if appropriate, say (and encourage others to say) ‘Oh yes, Phil Collins the photographer’. 148 Supra n. 146.

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– the task of subverting the place of the musician as primary cultural referent is a tall order indeed – the sheer weight of the collective national and international consciousness, with its embedded system of cultural signifiers and signified, presents a substantial challenge. The same, however, need not necessarily be said of the community of intellectual property lawyers within the UK (or indeed within the international arena). The possibility of embracing a new language of Intellectual Property Freedoms and Intellectual Property Privileges, amongst this considerably smaller cross-section of the public, seems a less daunting prospect. Earlier I suggested that what is required is a new terminology, however, a new terminology in itself will not do. What is needed is a new terminology that takes root in the various legal cultures of the academic, practitioner, judge, and policy maker. That is, a terminology that achieves sufficient critical mass within the predominant discourse, so as to subvert that dominant discourse. The question however, is how that is to be achieved? A good place to begin would be to re-examine the manner in which we write, teach, argue and talk about intellectual property. Looking through the academic literature of the last decade, it would seem that, regardless of the argument presented by Drahos in A Philosophy, little has changed.149 This is certainly true for the standard introductory and practitioners’ texts within the intellectual property field, which by and large avoid any meaningful engagement with the implications of the interface between intellectual property and the concept of monopoly, subject to one or two exceptions. One such text, by Cornish and Llewelyn, does so in a way that (implicitly) dismisses the conception of intellectual property presented within this chapter. They observe that ‘[a]ll intellectual property consists in the exclusive right to perform some defined activity, in the main productive or commercial. But this is not at all the same thing as the ability to exert monopoly power within a market’.150 Their point is that an ability to exploit an individual book for example, does not amount to an ability to control the marketplace for printed literature; true. And yet that does not mean that the ability to exploit any particular combination of original expressions for a limited term, free from market interference, is no less a monopoly viz a viz that arrangement of original expressions; other factors may impact upon the success (or value) of one’s exploitation, such as competing product or the dictates of 149

It is perhaps significant that in the same year the two WIPO treaties were concluded, providing a new focus for the next wave of developments in international intellectual property law, culminating in such measures as the Information Society Directive. 150 Cornish, W. and Llewelyn D. (2003), Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 5th edn, London: Sweet & Maxwell, pp. 1–45.

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fashion, but again that does not affect the nature of the market privilege granted to the copyright owner.151 A second text, and one which positions itself within the instrumentalist tradition, is that of Phillips and Firth in which they consistently write of ‘intellectual property’ and ‘intellectual property law’ as opposed to ‘intellectual property rights’.152 Phillips and Firth begin their work by discussing the legal protection of intellectual property in terms of five identifiable paradigms, the first three of which are ‘an absolute monopoly of the market’ (the patent, or the trade mark), ‘a qualified monopoly’ (such as the protection for topographies of semi-conductor chips), and ‘the monopoly of the use of one’s creation within the market’ or alternatively ‘the relative monopoly’ (copyright).153 What’s more, they have been doing so, long before Drahos made his appeal. Proof indeed (if proof were needed) that one can embrace such a discourse and still be considered an eminent intellectual property lawyer and scholar. This is ‘Chicken Licken’ proved wrong – if we speak not of intellectual property rights, but of intellectual property, and of intellectual property freedoms and intellectual property privileges, the sky will not fall. Moreover, in terms of historical and theoretical probity, as well as the potential for developing a more appropriate discourse with which to guide the future movement of intellectual property policy, there is much to be gained.

151

For another commentary upon the relationship between various aspects of monopoly, competition law and intellectual property see Torremans, P. (2005), Holyoak & Torremans: Intellectual Property Law, 4th edn, Oxford: Oxford University Press, pp. 12–20. 152 Subject that is to a brief use of the terminology of IPRs in the context of the Universal Declaration of Human Rights: Phillips J. and Firth, A. (2001), Introduction to Intellectual Property Law, 4th edn, London: Butterworths, p. 9. It is interesting to note that, by the publication of the 3rd edition of the text in 1995, any reference to ‘Intellectual Property Rights’ had been dropped from the index to the work. 153 Ibid., 4th edn, pp. 12–16.

6.

Conclusion

During the 1930s the Gramophone Company, now EMI Records, made a series of recordings in England of classical pieces by three world-renowned artists, Yehudi Menuhin, Pablo Casals, and Edwin Fischer, the copyright of which, under UK law had expired by 1990.1 In 1996, EMI (the parent company of Capitol Records) agreed that Capitol would have an exclusive licence to exploit these earlier recordings in the US. At the same time, the budget price classical music publisher, Naxos, located copies of these recordings, and having undertaken its own restoration process, made them available for sale in 1999. Capitol commenced an action alleging infringement of their common law copyright in the recordings, as well as unfair competition, misappropriation and unjust enrichment. The District Court granted a summary judgment to Naxos. On appeal, the Second Circuit considered that the case raised several unsettled issues of New York law, and noting that under federal law ‘it is entirely up to New York to determine the scope of its common law copyright with respect to pre-1972 sound recordings’, certified the following question to the Court of Appeals: ‘[I]s Naxos entitled to defeat Capitol’s claim for infringement of common law copyrights in the original recordings?’2 In Capitol Records v. Naxos of America (2005) (Capitol Records) the Court of Appeals considered that Naxos could not.3 There are many points of interest within the case worthy of exploration, however, central to the decision is the question of the existence and nature of the common law copyright upon which the plaintiffs based their claim. In the recent US Supreme Court decision of Eldred v. Ashcroft (2003) (Eldred), Ginsberg J, delivering the opinion of the majority of the court alluded to this very issue, in a footnote, albeit dodging the same: 1

Copyright Act 1911, 1 & 2 Geo. 5, c. 46, s. 19. The Court was also asked to answer the following: (1) Does the expiration of the term of a copyright in the country of origin terminate a common law copyright in New York?; (2) Does a cause of action for common law copyright infringement include some or all of the elements of unfair competition?; (3) Is a claim of common law copyright infringement defeated by a defendant’s showing that the work has slight if any current market and that the defendant’s work, although using components of the plaintiff’s work, is fairly to be regarded as a “new product”? 3 Capitol Records v. Naxos of America (2005) 4 NY3d 540. 2

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The parties disagree on the question whether the 1790 Act’s copyright term should be regarded in part as compensation for the loss of any then existing state- or common-law copyright protections. … Without resolving that dispute, we underscore that the First Congress clearly did confer copyright protection on works that had already been created.4

Graffeo J, delivering the judgment of the Court of Appeals, exhibited no similar ambivalence. Drawing upon the English copyright debates of the eighteenth century, and in particular upon Millar v. Taylor (1768) (Millar)5 and Donaldson v. Becket (1774) (Donaldson),6 she summarised as follows: that it was considered that copyright existed at common law, that it extended beyond first publication into perpetuity, but that the common law right was subsequently abrogated, as to the duration of copyright protection, by the passing of the Statute of Anne 1709. Thus ‘the supremacy of statutory time limitations for copyright protection’ was ‘firmly established in English law’.7 At this point Graffeo J adds her own footnote, which is worth replicating in full: The precise ruling by the House of Lords is the subject of scholarly debate. Professor Nimmer, among other commentators, takes the position that the House of Lords voted to overrule Millar only with regard to the abrogation question (see 1 Nimmer on Copyright §4.02[B], at 4-14 and n 12; see also Bowker, Copyright Its History and Its Laws, at 7 [1912]; Patterson, Copyright in Historical Perspective, at 174 [“The actual holding of the Donaldson case is that the author’s common-law right to the sole printing, publishing, and vending of his works, a right which he could assign in perpetuity, is taken away and supplanted by the Statute of Anne”]; Burger, The Berne Convention: its History and its Key Role in the Future, 3 J. Law & Tech 1, 6 n 25 [1988]; Cambridge Research Institute, Omnibus Copyright Revision, Comparative Analysis of the Issues, at 6 [1973]). It has been argued, however, that the House of Lords actually held that the common law never provided any copyright protection and that the rights of authors and publishers were solely statutory in nature (see Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1164 [Spring 1983]; Deazley, Re-Reading Donaldson [1774] in the Twenty-First Century and Why it Matters, 25[6] Eur. Intell. Prop. Rev. 270, 274 [2003]; Brown, Kaplan and Brown’s Copyright, at 53 and n 32 [2d ed. 1974]). The controversy stems from the lack of any contemporaneous report of the opinions of the Lords, because at that time it was “contempt punishable by imprisonment to publish any statements made by a Member of Parliament in the course of parliamentary business” (Abrams, supra, at 1159).8

4 5 6 7 8

Eldred v. Ashcroft (2003) 537 US 186, n. 3. Millar v. Taylor (1768) 4 Burr 2303. Donaldson v. Becket (1774) 4 Burr 2408. Capitol Records, pp. 549–50. Ibid.

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Like Copinger’s reference to Jeffreys in the first edition of his series on copyright, this footnote allows Graffeo J to acknowledge the existence of the argument which writers such as Abrams have made about the implications of the Donaldson decision as regards the existence of the common law right without ever having to engage with it in any meaningful sense. However, given that the financial implications of the decision run into billions of dollars,9 and that these recordings are now effectively ring-fenced from the public domain until 2067,10 one might have expected a little more. And yet this should perhaps not surprise, in that it stands testament to the long shadow which the orthodox (and erroneous) accounts of Millar and Donaldson still cast upon current copyright doctrine and discourse. Moreover, the treatise upon which Graffeo J draws most heavily is naturally Nimmer on Copyright. It is also Graffeo J’s reliance upon this work which explains the absence of Jeffreys v. Boosey (1854) (Jeffreys)11 from her historical synopsis of the development of the law of copyright. Any discussion as to the existence (or not) of copyright at common law within American jurisprudence must take place within the context of the Supreme Court decision of Wheaton v. Peters (1834), (Wheaton) decided 20 years prior to Jeffreys itself.12 In Wheaton the Supreme Court, in a majority decision, established that whatever rights subsisted in a manuscript work (prior to publication), were lost upon publication, and that what rights an author had in his work thereafter were entirely dictated by the legislation.13 For McLean J, who handed down the majority opinion of the Court, what rights did exist prior to publication? In a manner that foreshadowed the 9 During her judgment Graffeo J makes reference to the earlier decision of La Cienega Music Co. v. ZZ Top [1995] 516 US 927, which undermined the notion that state common law could provide copyright protection for pre-1972 sound recordings. ‘It was estimated’ she notes ‘that the ruling, if allowed to stand, would cause musicians, composers and publishers to lose over a billion dollars in annual revenue’. In any event Congress responded to the ruling by amending s. 303 to clarify that ‘the distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein’, 17 USC § 303[b]. 10 Capitol Records, p. 558. 11 Jeffreys v. Boosey (1854) 4 HLC 815. 12 Wheaton v. Peters (1834) 33 US 591. 13 Nimmer describes the effect of the Wheaton decision in the following way: ‘Wheaton v. Peters is a significant landmark not because of its analysis of Pennsylvania common law, but rather because it established the American view that publication ipso facto divested an author of common law copyright protection … [resting] on the simple basis that no common law copyright for published works had ever been recognized in Pennsylvania (or, by implication, in the rest of the United States) and consequently an author may protect published works, if at all, only under the federal copyright statute’; Nimmer on Copyright, § 4.02[C].

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distinction elaborated by Lord St Leonards and Parke B in Jeffreys, he acknowledged: That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realize a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.14

This right he continued ‘is presumed to be the copyright recognized in the act, and which was intended to be protected by its provisions’; this presumption he rejected: ‘Congress … by this act, instead of sanctioning an existing right, as contended for, created it’.15 For McLean J, as for the House of Lords in Jeffreys, as well as Lord Camden, Lord Chancellor Apsley and the judges in the minority in Donaldson, the right an author had at common law was, in essence, the right of determining when and by whom, if ever, a manuscript might be first published – something entirely different and distinct from that of copyright.16 This distinction between the right of first publication at common law and the statutory copyright which McLean had been careful to articulate was acknowledged in Horace Ball’s The Law of Copyright and Literary Property,17 as was the place of Jeffreys itself in the history of British copyright law. ‘The right of first publication’ he notes ‘arises out of the nature of the thing’; ‘copyright after publication’ however, ‘does not arise out of the nature of the thing, but is a special privilege which exists solely by virtue of the statute’.18 Furthermore, as to the history of copyright within the UK, Ball writes that in the ‘century following the decision of Millar v. Taylor … the weight of authority was strongly opposed to the doctrine of perpetual copyright at common law’,19 at which point he cites Jeffreys (albeit in a footnote).20 14

Wheaton, p. 657. Ibid., p. 661. 16 The irony of Wheaton in this regard is that McLean J’s judgment both entrenches the then orthodox reading of Millar and Donaldson, while at the same expressing an opinion as to the nature of the common law right which allies itself with that of the minority judges and the majority of peers who spoke to the issue in Donaldson itself. 17 Ball, Horace G. (1944), The Law of Copyright and Literary Property, New York: Banks and Company. 18 Ibid., pp. 26–27. 19 Supra n. 17, p. 25. 20 Ibid. Elsewhere Ball writes: ‘The origin of the expression “common-law copyright” can be traced to the presumptuous pretensions of the London booksellers in the first half of the eighteenth century, who, in the hope of maintaining their monopoly of the book-publishing business in certain well known works which had been published originally long before the statute of Anne (1710) was passed, claimed an exclusive and 15

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In this respect, however, he cuts an even more isolated figure than did Scrutton.21 Apart from Ball, the key copyright texts produced in the US, prior to Nimmer on Copyright, were by Morgan, Drone and Bowker. James Morgan’s The Law of Literature was the first extensive treatment of US copyright law since Curtis’s Treatise of 1847.22 A rambling, repetitive and often inconsistent text, Morgan, on the one hand, writes at length about the property in manuscripts (in ‘literary composition before publication’) in a manner which resonates with the observations of Lord St Leonards and Parke B from Jeffreys and with Charles Phillips writing thereafter (indeed it is almost Phillips word for word):23 [The] right of an author to his manuscripts is often alluded to as “copyright before publication”, and is often so spoken of by writers upon literary property. This copyright before publication is the more ancient of the two. It is the exclusive privilege of first publishing any original material product of intellectual labor. Its basis is property, and it depends entirely upon the common law.24

Later however, and with no evident sense of contradiction, Morgan continues that ‘[t]he author only has given him, by law, what in morality, equity and good conscience, he had before. Or, to speak more accurately, the law gives him a method of asserting and protecting his right. Statutes of copyright only shift the burden of proof in favor of the author’,25 and: [I]t can hardly be maintained that, because an author gives up a fragment of his natural rights in order that the law may more completely and fully protect the remainder, he has no natural rights at all. The right of a man to the offspring of his own brain is a natural and moral right, secured to him by the unwritten law; and if perpetual right under the common law to copy and reprint such works indefinitely – a claim which was subsequently supported by the decision of the King’s bench in the famous case of Millar v. Taylor, 4 Burr 2303. Even though such a right did exist by the common law of England, it was not adopted as part of the common law of any of the states in this country, where the common law of literary property is the result of modifications of the English rules by American legislation and judicial decisions. … The common law protects the author in the original ownership of his manuscript, but does not extend to a multiplication of copies by republication to the exclusion of others’; ibid., pp. 470–71. 21 See in general Chapter 3. 22 Morgan, J.A. (1875), The Law of Literature, vols 1 & 2, New York: Cockcroft & Co. 23 Phillips, C.P. (1863), The Law of Copyright in Works of Literature and Art and in the Application of Designs, London; see Chapter 3, n. 46 and accompanying text. To be fair, Morgan does cite Phillips at this point in his text. 24 Morgan, supra n. 22, 1, p. 386. 25 Morgan, supra n. 22, 2, p. 3.

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the constitution of the United States, or any other written law, attempts to abrogate natural and moral right and unwritten law – except as punishment for crime – that written law, whatever it is, and by whomsoever enacted it, is, in just so far, null and void.26

Happily, he concludes, ‘it is hardly to be supposed that the constitution does any such thing’.27 Whatever the inconsistencies, the overall tenor of Morgan’s commentary falls in line with that of Copinger et al. Indeed, in his introductory essay he recasts Copinger’s rhetorical question (‘What property could be more emphatically a man’s own than his literary works?’) in not too dissimilar form: ‘What can be more emphatically a man’s own than his own ideas?’28 Morgan’s treatment of copyright’s historical development is peppered with references to and citations from the judges in the majority in Millar (and in particular Willes J), from Maugham’s Treatise on the Laws of Literary Property,29 and from Copinger itself.30 ‘Intellectual Property – that is, the property existing in Thought, Expression, Sentiment, and Language, - in like manner with all other kinds of property, - must find its origin in Natural Law’; the clearest exponent of the principles of natural law in this regard were of course Blackstone and Locke.31 Jeffreys, and indeed Wheaton, remain by and large absent, confined to the occasional footnote.32 Drone picked up where Morgan left off and, while both share the same zeal for the conceit of copyright at common law, if Morgan’s text rambles, Drone’s commentary is direct, well-structured and powerfully delivered.33 For Drone, literary property ‘both before and after publication, is founded on the same principles, has the same essential attributes, is the same in every respect, as ordinary property’, is ‘perpetual by the common law’, ‘cannot rightly be taken away or abridged by the legislature’, and ‘like all property, has its origin in natural law, and not in legislation; it is, therefore, a natural and not an artificial

26

Ibid. Morgan, supra n. 22, 2, p. 79. Elsewhere, writing about the Statute of Anne, he comments that ‘[i]f the statute right had opposed the moral right, it would have been time to protest. As it did not, – but only, by superceding, confirmed and declared it, – it is to be praised and accepted’; ibid., 2, p. 4. 28 Morgan, supra n. 22, 1, p. 4. 29 Maugham, R. (1828), A Treatise on the Laws of Literary Property, London. 30 See generally Morgan, supra n. 22, 2, pp. 1–59. 31 Ibid., 1, pp. 1–6. 32 Wheaton only features in the main body of Morgan’s text as authority for the proposition that ‘the decision of courts are a sort of common property, which may be appropriated and printed by whoever wishes to do so’; Morgan, supra n. 22, 2, p. 565. Apart from this Wheaton appears only sporadically and always in a footnote. 33 Drone, E.S. (1879), A Treatise on the Law of Property in Intellectual Productions, Boston: Little Brown and Company. 27

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right’.34 Drone acknowledges the reality that as regards ‘intellectual productions … when the statutory right begins, the common-law right ends’.35 However, Donaldson is to be criticized (in particular Lord Camden’s ‘specious harangue’), as are the ‘groundless theories’ of Yates J, as was Wheaton, which simply ‘followed the doubtful and disputed precedent of the House of Lords [in Donaldson], without testing its soundness’ (which, Drone considered, ‘deprive[s] Wheaton v. Peters of much of its weight as an authority’).36 Of the dissenting judgments in Wheaton, Drone writes: ‘In opposing the opinion of the majority, Justices Thompson and Baldwin expounded the true principles governing literary property, with a clearness and force, that recall the great arguments on this question by Sir William Blackstone, Lord Mansfield, and Justices Aston and Willes.’37 And so he goes on. As for Jeffreys, not confined to the footnote as is the case with Morgan, Drone brings it clearly to the fore: The judgment rendered by the House of Lords in 1774 has continued to represent the law; but its soundness has been questioned by very high authorities. In delivering the opinion of the full bench of the Court of Exchequer in 1851, in Boosey v. Jefferys, Lord Campbell said: “The first question discussed before us was whether authors have a copyright in their works at common law. This is not essential for our determination of the present case. If it were, we are strongly inclined to agree with Lord Mansfield and the great majority of judges, who, in

34 Ibid., pp. 16–17, 20 and 26. See also Drone’s comments from his introductory essay on the ‘Origin and Nature of Literary Property’ that: ‘The principle is as old as property itself, that what a man creates by his own labor, out of his own materials, is his to enjoy to the exclusion of all others. It is based not only on natural right, but also on the necessities of society, being essential to the promotion of industry’; and ‘that before publication an author has, in the fruits of his intellectual labor, a property as whole and as inviolable as that which exists in material possessions; that he has supreme control over such productions, may exclude others from their enjoyment, may dispose of them as he pleases … If by publication this species of property is lost to the owner, it must be on the principle of abandonment or contract. No other theory has been, and no other theory can be, advanced’; and again, that ‘[c]an it, then, be a sound principle of law, of ethics, of reason, that property is lost by the very act which alone gives it value? … Such reasoning is a burlesque, which might be entertaining if it were confined to theory; but reduced to practice, as it has been, it becomes grievously serious. It is a ridiculous doctrine which recognizes the existence of a species of property, and yet pronounces its only use unlawful and self-destructive. If the property is recognized a mode of use must be conceded. To say that authors have rights of property in their literary productions, and that they are lost by publication, which is their only source of value is absurd. It is destructive of the first principles, the essence, the very notion of the right of property’; and so on. 35 Ibid., p. 100. 36 Drone, supra n. 33, pp. 39 and 48. 37 Ibid., p. 44.

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Millar v. Taylor and Donaldson v. Becket, declared themselves to be in favour of the common-law right of authors.” And when the same case came before the House of Lords, in 1854, although the consideration of the subject was not essential to the determination of the issue before the house, Mr. Justice Erle delivered an elaborate argument in support of the doctrine maintained by Lord Mansfield. Mr. Justice Coleridge gave expression to similar views, and added: “If there was one subject more than any other upon which the great and varied learning of Lord Mansfield, his special familiarity with it, and the philosophical turn of his intellect, could give judgment particular weight, it was this. I require no higher authority for a proposition which seems to me in itself reasonable and just”.38

The selectivity is breath-taking. As would be the case with Easton nearly 30 years later,39 Jeffreys is invoked as a counterfoil to Donaldson, but whereas Easton was tentative in his use of the case to this end (confining it to a footnote of course) Drone is ballsy, brash and unapologetic. It is no doubt difficult for the modern lawyer to contemplate just exactly how Drone could be so cavalier in his handling of Jeffreys. However, he was no doubt familiar with the first edition of Copinger’s treatise, published just 9 years before, and the treatment which Jeffreys had received therein. One also has to remember that, Morgan’s work aside, Drone was the first authoritative American treatise on copyright law since Curtis, which had been published over 30 years before, and his work would remain the central (indeed sole) text on the subject for the next 30 years; Drone on Copyright was at that time the seminal work of American copyright scholarship.40 When Bowker published Copyright: Its History and Its Law in 1912, in the foreward to his work, he made sure to acknowledge his debt (within the acceptable limits of fair use naturally) to ‘the best law-book writers, especially Drone’ as well as (not Scrutton, but) ‘Copinger, Colles and Hardy and Macgillivray’.41 Written in the wake of new legislation in both the US and the UK, Bowker began by defining ‘copyright’ as meaning ‘the right to copy, to make plenty’, ‘to multiply copies of those products of the human brain known as literature and art’.42 He did continue by identifying another meaning of the 38

Drone, supra n. 33, pp. 42–43. Easton, J.M. (1915), The Law of Copyright, 5th edn, London: Stevens & Haynes; see Chapter 3, n. 172 and accompanying text. 40 Indeed, when Herbert Howell came to write his 1942 treatise on The Copyright Law, in setting out his brief synopsis of the historical development copyright law in both the UK and the US, he seems to rely almost exclusively on Drone; Howell, H.A. (1942), The Copyright Law: An Analysis of the Law of the United States Governing Registration and Protection of Copyright Works, Including Prints and Labels, Washington: The Bureau of National Affairs, pp. 1–6. 41 Bowker, R.R. (1912), Copyright: Its History and Its Law, Boston and New York: Houghton Mifflin Company, p. vii. 42 Ibid., p. 1. 39

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word ‘much emphasized by several English justices’, that is, the ‘right in copy made’ (or rather the right in the manuscript), citing Lord St Leonards in Jeffreys.43 However, Bowker’s work is about copyright in the former sense, and, given the debt already acknowledged, it comes as no surprise that what follows is an exegesis of Blackstone’s philosophy of copyright, of that natural property which is ‘the creation of the individual brain’. Here, were it possible, Bowker is almost more adventurous in his use of Jeffreys than was Drone. With no apparent irony, he relies not on Erle J or Campbell CJ but upon comments from Parke B to establish that a ‘[p]roperty right in unpublished works has never been effectively questioned – a fact which in itself confirms the view that intellectual property is a natural inherent right’.44 To this end, with the passing of the Statute of Anne and the decision in Donaldson, Bowker bemoans that: ‘Literary and like property to this extent lost the character of copy-right, and became the subject of copy-privilege, depending on legal enactment for the security of the private owner’.45 And so we come to Nimmer on Copyright, upon which Graffeo J understandably places so much reliance. When Nimmer begins his section on ‘The Subject Matter of Common Law Copyright’ he does so with the observation that: Until the advent of the Copyright Act of 1976, the American law of copyright had been the subject of a dichotomy between federal and state law. Unpublished works were automatically protected by state law, referred to somewhat inaccurately as common law copyright.46

Despite this warning concerning the inaccurate nature of the terminology, Nimmer nevertheless continues to use the term ‘common law copyright’ throughout the rest of his exposition of the subject. Indeed, in the context of a discussion as to whether such common law copyright (under state law) subsists in works which are not ‘fixed in a tangible medium of expression’, he seems to fly in the face of his own advice in writing: It seems much preferable to view the underlying rationale for common law copyright (ie, the recognition that a property status should attach to the fruits of 43

Bowker, supra n. 41. Ibid., p. 4. Bowker does also refer to Jeffreys in the context of ‘Copyright Throughout the British Empire’ noting that ‘[u]nder the Statute of Anne, it was decided by the Law Lords, in the case of Jeffreys v. Boosey (overruling Boosey v. Jeffreys) that a person not a British subject or resident was not entitled to copyright because of first publication in England, but the statute of 1842 was construed to alter this’, ibid., pp. 373–74, but this is the only other time he makes reference to the House of Lords decision. 45 Bowker, supra n. 41, p. 7. 46 Nimmer on Copyright, § 2.02 and 2–18 (emphasis added). 44

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intellectual labor) as applicable, regardless of whether such labor assumes tangible form. … Assuming, as sometimes happens, that the writer has never reduced the story to written form and that he orally relates the entire story (not just an abstract idea), there would seem to be no reason to accord to the story any less of a property status than if the story had been reduced to writing. Situations where such a problem might arise are perhaps rare … [h]owever, when such situations do arise, the creator should be able to claim the protection of common law copyright.47

At this point Nimmer inserts the following footnote: The notion … that nothing is property which cannot be earmarked, and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple, but is not true in a civilized state, when the relations of life and the interests arising therefrom are complicated.

The quote is from Erle J in Jeffreys.48 Indeed, in his short 10-page commentary upon the subject matter of common law copyright, in which Nimmer makes no less than seven references to the fact that Nimmer on Copyright has been cited or quoted in relevant case-law in this area,49 this quotation from Erle J proves to be the only reference to Jeffreys, a fact which surely also explains why it is that this decision of the English House of Lords, which provided one of the seminal critiques upon the concept of copyright at common law within nineteenth-century Anglo-American jurisprudence, should be absent from Graffeo J’s account of the history of that jurisprudence.50 Bluntly put, Jeffreys is irrelevant to Graffeo J because Jeffreys is irrelevant to Nimmer (except of course as a footnote in support of a rationale for copyright at common law, which the House of Lords in Jeffreys explicitly 47

Ibid., pp. 2–26. Jeffreys, p. 868. 49 See generally Nimmer on Copyright, § 2-18–2-27. 50 As to Wheaton, Graffeo J notes: ‘[t]he majority acknowledged that the common law insured copyright protection prior to publication but believed that in the absence of federal common law under our constitutional system, a party seeking common law protection must look to the state where the controversy arose’; Capitol Records, p. 551. McLean J, of course, explicitly rejected that what common law rights existed in a work were to be understood as similar in nature to statutory copyright, a point which even Copinger was willing to accept in noting that ‘a majority of the judges in Wheaton’ were of the opinion that ‘no such right existed’; Copinger, W.A. (1870), The Law of Copyright in Works of Literature and Art, London: Stevens & Haynes, p. 17. What McLean J did acknowledge was that an author had rights in his or her manuscript, but again, this was not to be understood (or referred to) as copyright. Here then we see Graffeo J engaging in an all too familiar process of blurring the lines between the two discrete concepts of a common law right in a manuscript (which ensures an author has the right of first publication of that manuscript) and copyright at common law. 48

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rejected). Instead, we have Graffeo J relying upon Nimmer on Copyright, which provides an exposition of the law relating to copyright at common law which refers to Nimmer on Copyright in support thereof, a chain of reasoning which can be described as nothing other than Orwellian.

The temptation to finish with Orwell was strong indeed, however tradition demands some cursory concluding comments and the Capitol Records episode provides an almost too-perfect hook upon which to hang the same. The decision and the commentary therein offer up powerful resonances with the numerous preoccupations of this book. Here we have a decision which throws into sharp relief the staggering commercial and cultural consequences that depend on how the boundary between that which is copyright protected and that which is public domain is drawn,51 which bears witness to the manner in which discrete legal phenomena can be so easily, yet so significantly, collapsed into one another, and which re-presents the orthodox history of the development of copyright incorporating the familiar myth of Donaldson and the cult of Millar. In this regard of course, the decision does not take place within a vacuum. Graffeo J’s judgment also brings to the fore the various texts upon which she relies, with their specific historical and theoretical leanings, as well as their various rhetorical nuances, and is testament to the process by which those practitioners and academics who write about the law can come to define and determine the contemporary parameters of the law. And if we speculate as to the relevance of Graffeo J’s decision in 20, or 50, or 100 years time? If this work has suggested anything it is that whether Capitol Records becomes subsumed within the mainstream of doctrinal copyright law or instead finds itself no more than a footnote in the history of copyright turns not simply upon the manner in which the law itself might subsequently develop, but upon which treatise writer decides to write about the decision, what they have to say, how they say it, and why.

51 As a result of the decision in Capitol Records, Naxos have recently settled the lawsuit, agreeing to discontinue all US sales of classical recordings within the Capitol Records portfolio. See www.billboard.biz/bb/biz/newsroom/legal_management/ article-display.jsp?vnu_content_id=1001806497.

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Index Abernethy v. Hutchinson 85–6 Abrams, H. 17, 40 abridged works 26, 27 access to work, concept 109 Act to Amend the Law of Copyright 1842 155 Act to Amend the Law Relating to International Copyright 1844 56 ‘acts permitted in relation to copyright works’ 113, 131 ‘acts restricted by copyright’ 106 Adams, J.N. 1 The Agreeable Surprise (play) 29 Alexander, I. 1 alienability 140 American authors 57 protection of works in UK 74 An Analysis of the Patent and Copyright Laws (Newton) 91 anti-monopoly movement 8 Appellate Jurisdiction 58 Arab Charter on Human Rights 136 Archaeologica Philosophica 115 An Argument in Defence of Literary Property (Hargrave) 36, 112 Art & Copyright (Stokes) 1 The Art of Defence on Foot (Rowarth) 35 Ashdown v. Telegraph Group 116, 117, 118, 152–3 Australian Copyright Law Review Committee 128, 129 The Author’s Due (Loewenstein) 13 authors 4–5 American 57, 74 common law rights 37 copyright for entirety of life 55 foreign 48, 49–50 natural rights of 24, 25 property in the literary content of manuscripts 79

right to control printing and reprinting 89 right to unpublished works 80 rights after publication 66 rights before publication 65, 66 rights of 16, 22, 23, 34, 39–40, 47, 61 unpublished manuscript, perpetual common law copyright 24 works of foreign authors 43–7, 48–9, 51–3, 56–7, 63, 67–70, 71–2, 74 Authors and Owners (Rose) 17 Authors, Publishers and Politicians (Barnes) 56 Bach v. Longman 29, 46, 54 Bainbridge, D. 4, 5, 6, 115 Ball, H.G. 99, 170 Barnes, J.J.B. 56 Barnett v. Glossop 47 ‘battle of the booksellers’ 5, 14 Beckford v. Hood 29, 30, 32, 33, 37, 40, 53 and common law copyright 31 Benkler, Y. 7, 118, 132 Bentham, J. 99 Bentley v. Foster 47 Bently, L. 56 Bentwich, H. 81 Berne Convention 74, 110, 145, 149 Bill for the Better Regulating of Printing and Printing Presses 1695 143 Bill for the Relief of Booksellers 21 Blackstone, W. 39, 138 book trade 13–14, 143 monopolistic abuse on 13 Scottish 14, 21, 42 booksellers copyright in perpetuity 42 London, petition for legislation 20 rights of 16, 19 Boosey v. Jeffreys 43, 51 191

192

Index

Boosey v. Lonsdale 47 Boosey v. Purday 50, 60 Boozey v. Tolkien 50 Boucicault v. Chatterton 74–5 Boucicault v. Delafield 70–71 Bowker, R.R. 72, 174–5 Boyle, J. 7, 105, 108 Brazell, L. 124 Briggs, W. 56, 79 Britton, J. 34 broadcasting 149–50 Broadcasting Act 1996 129 Brooke v. Clarke 35, 37 Brooke v. Milliken 29 Brook v. Wenworth 29 Broughton, H. 444 Brydges, E. 34 Buckley on the Companies Act 90 Budd, A. 1 Burke, P. 40, 61 Burnet v. Chetwood 115–16 Cadell and Davies v. Robertson 35 Caird v. Sime 85, 86, 88 Cambridge Law Journal 81 Campbell, J. 43 Capitol Records v. Naxos of America 167, 176–7 Carnan v. Bowles 29 Carter, H. 22 Cary v. Kearsley 36 Cary v. Longman 31 The Case Stated between The Public Libraries and the Booksellers (Cochrane) 34 Centre for Intellectual Property Policy and Management 1 Chappel, F.P. 64, 65 Chappell v. Purday 48, 49–50, 55 Charter of the Fundamental Rights of the European Union (2000) 135–6, 151, 161 Charterparties (Scrutton) 90 choses in action 140–41 Clark, C. 63 Clementi v. Walker 43, 46 click-wrap licensing agreements 128 Cobbett, W. 17, 19, 66 Cochrane, J.G. 34 Cocks v. Purday 50

Colburn v. Duncombe 47, 53 Colburn v. Simms 47 Cole, R.C. 54 Coleman v. Wathen 29, 32, 154 and the Statute of Anne 30 Collins, P. 164–5 Colston, C. 6 Columbia Journal of Law & The Arts 8 Commentaries on the Laws of England, vol. 2 (Blackstone) 39, 138 Commission on Intellectual Property Rights, UK 130 common good 23 common law courts of 14 inherent jurisdiction at 116 and literary property 61 mechanisms for restricting the operation of contractual provisions 128 and statutory right 86 and unpublished works 70 common law copyright arguments as to existence 47, 50, 51, 53, 62, 65, 67, 69, 80 and Beckford 31 before publication 88 and Donaldson 16, 17, 18–20, 23 and foreign authors 50 and foreign works 67–70 and Jeffreys 65 in literary works 66 perpetual common law copyright, author’s unpublished manuscript 24 post-publication 30, 62 and Statute of Anne 19, 20, 21, 23–4, 32 and Tuck 83–4 common law public interest defence 117 common law rights 5, 6, 7, 14, 21–2, 27, 35, 38, 40, 64 Commons and Common Fields (Scrutton) 83 constitutive power, of legal writing 28 contract, see law of contract Cook, T. 124 Copinger: The Law of Copyright (Easton) 93

Index Copinger on the Law of Copyright (Skone James) 97 Copinger and Skone James on Copyright (Garnett, Davies and Harbottle) 3, 23, 95 Copinger, W.A. 31, 75–8, 91 Copyright: A Sketch of its Rise and Progress (Purday) 78 Copyright: Its History and Its Law (Bowker) 74, 174–5 copyright before publication 65 for entirety of author’s life 55 European Directive on 36 expiring 102 historical trajectory 144–50 as a human right 137 infringement of 9, 117 as an institutional phenomenon 106 as an intangible property right 18 and the interests of society 23 and labour 79 as a natural property right 161 and newspaper reports 71 in perpetuity 42 as property 139–43 as a proprietary right 79 as the right of multiplying copies 62–3, 64 theoretical justifications 137–8 Copyright Act 1801, and Ireland 53–4 Copyright Act 1816 36 Copyright Act 1842 38, 72, 73 debates surrounding passage 61 Copyright Act 1862 83 Copyright Act 1911 6, 87, 94, 145 and unpublished manuscripts 64 Copyright Act 1956 147 ‘copyright-after-publication’ 66 Copyright Bill 1898 86 Copyright Cases (Macgillivray) 64 copyright collecting societies 156 Copyright Designs and Patents Act 1988 102, 113, 114, 126, 129, 147, 148 permitted acts 150, 156 The Copyright Directive (Cook and Brazell) 124 Copyright in Historical Perspective (Patterson) 13, 108 Copyright Law (Hinkson) 81

193

Copyright Laws of the World (Singer) 91 Copyright Lectures Act 1835 86 Copyright in Letters (Macgillivray) 80 copyright libraries 34 Copyright and Patents for Inventions (Macfie) 81 Copyright and Patents, or, Property in Thought (Leverson) 63 Copyright and the Public Interest (Davies) 138 Copyright and Related Rights Regulations 2003 114, 125, 149 Copyright Society of the USA 17 Copyright (Visually Impaired Persons) Act 2002 131, 149 copyright’s public domain 106–22 Cornell Journal of Law and Public Policy 7 Cornish, W. 5, 6, 165 The Correspondence of John Locke (De Beer) 143 Court of Chancery 14, 15, 20 Court of Exchequer 63 Court of Kings Bench 15 Courtney, J. 67–8 courts of common law 14 Coyne v. Maxwell 70 Creative Commons project 107 criticism or review 114, 127–8 Cumberland v. Copeland 155 Cummins, M. 71, 73 Curtis, G.T. 39, 40, 43 Cutler, E. 79 D’Almaine v. Boosey 44–5, 46, 47 Davies, G. 23, 138 Dead Sea Scrolls 124 Deazley, R. 1, 2, 5, 17, 32, 76, 108, 110 De Beer, E.S. 143 Defoe, D. 161 Delondre v. Shaw 44, 45 de novo rights 14 DePaul Law Review 129 Designers Guild v. Russell Williams 2, 3, 6 De Trusler v. Murray 29, 31 Dicey, A.V. 90 Digest of the Criminal Law (Stephens) 90

194

Index

Digest of House of Lords Reports (Clark) 63 Digest of the Law of Copyright (Stephen) 79, 90 Digital Copyright (Litman) 125 Digital Copyright (Stokes) 1 Digital Millennium Copyright Act 1998 125 dominant copyright paradigm 161 Donaldson v. Becket 5, 6, 15–24, 26, 30, 31, 32, 34, 35, 38, 40, 41, 48, 51, 54, 88, 92, 94, 168, 170 and common law copyright 16, 17, 18–20, 23 Copinger on 77 decision of the House of Lords 17, 63 impact upon Millar 67 and Jeffreys 58–9, 60 judges in case 17 misreporting of decision 18, 24, 55 petitions for legislation following case 20–21 Purday on 78 questions to House of Lords 16 and Reade 69 re-branding of 53 reports of case 17–18 Donellan v. Beckett 53 Doupe, M. 28 Drahos, P. 142, 162, 163 Dramatic Copyright Act 1833 68, 74 dramatic works 154 Dreyfuss, R. 9 Dr Hawkesworth’s Voyages 26 droit d’auteur 138 droit de divulgation 65 Drone, E.S. 80, 172–4 Dublin Penny Journal 53 Dublin’s Trade in Books, 1550–1800 (Pollard) 54 Du Bost v. Beresford 36 Duke Law Journal 113 Duration of Copyright and Rights in Performances Regulations 1995 36, 147 Duxbury, N. 90 Easton, J.M. 93, 174 The Economics of Intellectual Property (Towse and Holzhauer) 138

Edmunds, L. 81 education 13, 23, 44, 52, 120–21, 149 educational resource packs 121 Eldred v. Ashcroft 167–8 Electronic Journal of Intellectual Property Rights 121 Elements of International Law (Wheaton) 50 EMI Records 167 Emory Law Journal 103 engravers/engraving 31, 53–4 Engraving Copyright Acts (1734, 1767) 31, 35, 144 Entertainment Law Review 1 Espinasse, I. 35, 37, 60 An Essay on the Regulation of the Press (Defoe) 161 etchings 91 European Copyright Duration Directive 36 unpublished works 110 European E-commerce Directive 149 European Information Society Directive 114, 115, 124, 149, 151, 156–9 European Intellectual Property Review 110, 113, 127 European Software Directive 129 The European Union Charter of Fundamental Rights (Peers and Ward) 137 Exchange Telegraph Company v. Gregory & Co. 86 exclusion thesis 140 Expanding the Boundaries of Intellectual Property (Dreyfuss) 9 externalities, and copyright’s public domain 122–9 Eyre v. Carnan 29 Eyre v. Walker 14 fair use 145 Feather, J. 13 Fifoot, C.H.S. 90 Le Figaro 101 films, term of protection 147 Fine Arts Copyright Bills of 1868 and 1869 122 The First Copyright Statute (Ransom) 13 First, H. 9 Firth, A. 166

Index Fisher v. Folds 53 foreign works 43–7, 48–9, 51–3, 56–7, 63, 74 and common law right 67–70, 71–2 Four Tracts on the Freedom of the Press (Parks) 36, 112 Fraser, J. 65 Garnet, K. 5, 6, 23 Ginsberg, J.C. 8 Godson, R. 41 Goldstein, P. 156 Guichard v. Mori 44, 46, 61 Gummow, W.M.C. 1 A Handbook of English and Foreign Copyright (Jerrold) 80 A Handy-Book of the Law of Copyright (Chappell and Shoard) 64 A Handy-Book of Patent and Copyright Law (Fraser) 65 Harbottle, G. 23 Hargrave, F. 35, 36, 112 Haunted Hearts (novel) 71 Hawkesworth v. Newbery 26, 29 Henry Broughton, His Public Career 1778–1868 (Stewart) 44 Hime v. Dale 36, 46 Hinkson, H.A. 81 Historical Foundations of the Common Law (Milsom) 90 An Historical Sketch of the Law of Copyright (Lowndes) 38, 39, 61 historical trajectory of copyright 144–50 history of copyright 1710–1774 13–25 1774–1854 26–55 1854–1912 56–97 History of English Law (Holdsworth) 90 History of English Law (Pollock and Maitland) 90 A History of the Oxford University Press (Carter) 22 Hohfeldian analysis 139 Holdsworth, W.S. 90 Holyoak & Torremans: Intellectual Property Law (Torremans) 6 Holzhauer, R. 138 Hotten, J.C. 81 Hubbard v. Vosper 115

195

human right, copyright as 137 human rights 8, 151–2 Human Rights Act 1998 116, 152 idea–expression dichotomy 112 The Idea of Property (Underkuffler) 139 The Idea of Property in Law (Penner) 140 ideas 66, 112, 117 impersonality 141 indigenous communities 130–31 Information Feudalism (Drahos) 163 infringement of copyright 9, 117 inherent jurisdiction, at common law 116 In Re Dickens, Dickens v. Hawksley 95–7 Institutes of the Laws in England 35, 36 instrumentalist (or consequentialist) approach 138, 163, 166 insubstantiality 146 intellectual commons 83, 103, 109, 110, 111, 119, 122, 123 and the public domain 109–10 intellectual property 4, 9, 103, 108, 132, 163–6 as a natural property right 152 nature or justification 137 Penner on 142–3 protection 136–7 time-limited 111 Intellectual Property (Bainbridge) 4 Intellectual Property (Cornish and Llewelyn) 6, 165 Intellectual Property and Economic Development (Khan) 57 Intellectual Property and Information Technology Law (Bainbridge) 115 intellectual property freedoms 161–3, 165 intellectual property privileges 161–3, 165 Intellectual Property Quarterly 142 intellectual property rights 162–3 as human rights 8 interest groups, and the public domain 131 International Copyright Act 1844 56 International Copyright Act 1886 74 International Covenant on Economic, Social and Cultural Rights 136

196

Index

International Review of Industrial Property and Copyright Law (Dusollier) 127 internet 151 Introduction to Intellectual Property Law (Phillips and Firth) 166 Introduction to Principles of Morals and Legislation (Bentham) 99 Iowa Law Review 152 Ireland, and Copyright Act 1801 53–4 Ireland Illustrated 53 Irish Booksellers and English Writers, 1740–1800 (Cole) 54 It is Never Too Late to Mend (novel) 69 Ives, E.W. 28 Jaszi, P. 113 Jeffreys v. Boosey 24–5, 31, 38, 42, 50, 53, 55, 56–64, 66, 93, 94, 169, 170, 174, 175 and common law copyright 65 and Donaldson 58–9, 60 and the House of Lords 67 Nimmer on 176 opinions of common law judges 57–8 and Routledge 71, 75 Scrutton on 82, 86–7 and Tuck 84 and works published before 1842 74 Jerrold, S. 80 Jones’ Exchequer Reports 53 Journal of the Copyright Society of the USA 8, 156 Journal of Law and Information Science 103 Judge and Jurist in the Reign of Victoria (Fifoot) 90 Judges and Jurists (Duxbury) 90 Judicial Committee of the Privy Council 146 Kalkbrenner, F. 43 Kaplan, B. 132 Khan, B.Z. 57 Kings College Law Review 28 Koenigsberg, F. 8 Krasilovsy, M.W. 102 labour 4, 138 and copyright 79, 80

‘labour theory’ 4, 5 Lacan, J. 101 Laddie, H. 113 Lange, D. 102, 104, 120 language 7–8 of legislation 151, 161 The Law of Art Copyright (Underdown) 65 The Law of Artistic Copyright (Winslow) 81 Law of the Constitution (Dicey) 90 Law and Contemporary Problems 102, 108 law of contract 122 and copyright 127–8 Law of Contracts (Anson) 90 The Law of Copyright (Easton) 174 The Law of Copyright (Montefiore) 32, 60 The Law of Copyright (Scrutton) 82, 96 The Law of Copyright (Spalding) 80 The Law of Copyright and Literary Property (Ball) 99, 170 The Law of Copyright in Designs (Bentwich) 81 The Law of Copyright in Works of Literature and Art (Copinger) 31, 75–8, 91 The Law of Copyright in Works of Literature and Art and in the Application of Designs (Phillips) 65, 71, 171 The Law of International Copyright (Briggs) 56 The Law of Literary Copyright (Briggs) 79 The Law of Literature (Morgan) 75, 171 Law, Litigants and the Legal Profession (Ives and Manchester) 28 Law Magazine 41, 42, 63 Law Magazine and Review 67 The Law of Musical and Dramatic Copyright (Cutler) 79 Law Quarterly Review 8, 90 Law Relating to Trusts and Trustees (Underhill) 90 The Law Relating to Works of Literature and Art (Shortt) 65

Index law schools 90 The Laws of Copyright (Scrutton) 81, 163 Leader, D. 101 lectures, and copyright 85–6 legal literature, history and development 28 legal treatises 28, 90 legal writing, constitutive power 28 Lemley, M.A. 7 Lestocq (opera) 44 Leverson, M.R. 63 libraries 131, 148 library deposit provision 33, 35 Licensing Act 1662 13, 76, 108, 143, 159 licensing schemes 157–8 Linberg, S.W. 105 Lion Laboratories v. Evans 116 Literary Copyright: Seven Letters (Hotten) 81 Literary Copyright Reform in Early Victorian England (Seville) 38, 61 literary property 18, 40 and common law 61 literary works 113 common law right in 66 as property 75, 91 protection for 38 Litman, J. 103, 111, 112, 113, 121, 125, 133 Liverpool Law Review 28 Llewelyn, D. 5, 6, 165 Locke, J. 3, 4, 5, 138, 143–4 Loewenstein, J. 13 Lofft, C. 26, 27, 28 Lowndes, J.J. 38–9, 61 Low v. Routledge 71 Low v. Ward 73–4 MacCormick, N. 142 Macfie, R.A. 81 Macgillivray, E.J. 64, 79–80, 88 Macklin v. Richardson 153–4 Maitland, F.W. 90 The Making of Modern Intellectual Property Law (Sherman and Bently) 56 Manchester, A.H. 28 Mansell v. Valley Printing Co. 88

197

The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Oldham) 29 manuscripts 79 lawful ownership 65 ownership of 18 perpetual common law copyright, author’s unpublished manuscript 24 Marsh v. Conquest 154, 155 Maugham, R. 37, 38, 60 Mechanics Institutes 44 medicine, copyright to labels 44 Michigan Law Review 4 Middleton, K. 6 Midwinter v. Hamilton 14 Millar v. Kincaird 14 Millar v. Taylor 5, 6, 15, 26, 30, 35, 40, 41, 48, 51, 54–5, 66, 113, 138, 168 and common law copyright 15 Copinger on 77 cult of 53 decision in 15 impact of Donaldson 67 Milsom, S.F.C. 90 Modern Intellectual Property Law (Colston and Middleton) 6 Monckton v. The Gramophone Company Ltd 64, 87–9 monopolies 41, 42, 71, 143–4, 166 time-limited 162 Montefiore, J. 32, 60 Moonstruck (song) 87 moral rights 147–8 Morgan, J.A. 75, 80, 171–2 Motte v. Faulkner 14 multiplying copies, and copyright 62–3, 64, 85 Murphy, A. 121 Murray v. Elliston 32, 45 musical works and Statute of Anne 46, 54 unlawful publication 43 National Association for the Promotion of Social Science 44 natural (or moral) rights approach 138 natural property right copyright as 161 intellectual property as 152

198

Index

The Nature of Copyright (Patterson and Linberg) 105 Newark v. National Phonographic 87 The New Commerce in Ideas and Intellectual Property (Plant) 132 Newman, J.O. 9 newspaper reports, and copyright 71 Newton, A.V. 91 New York University Law Review 8 Nimmer, D. 169, 175–6 Nimmer, M.B. 169, 175–6 Nimmer on Copyright (Nimmer and Nimmer) 169, 175–6 non-interference, duty of 141 Novello v. Sudlow 52 occupancy, and property rights 39–40, 138 Ochoa, T.T. 108 Oddi, A.S. 105 Oldham, J. 29 On the Origin of the Right to Copy (Deazley) 5, 6, 8, 17, 32, 76, 108 OpenSource movement 107 opera 47, 50 allegation of infringement 48 oppositional analysis 160 ownership 124 of manuscript 18 Page v. Townsend 43 Parks, S. 36, 112 Parliamentary History from the Norman Conquest (Cobbett) 66 Patent Office, on history of copyright 121 patents 41, 105 Patterson, L.R. 13, 16, 105, 108 Peers, S. 137 Penner, J. 140 Penner’s theory of property 140–42 Pepoli v. Laporte 47 perceived public domain 120 performance rights 154–5 periodical literature 41 perpetual common law copyright 30, 37 in author’s unpublished manuscript 24 perpetual copyright 22–3, 24, 35 perpetuity, copyright in 42

personal or moveable property 151 personality, notions of 138, 141 Phillips, C.P. 64, 65, 71, 171 Phillips, J. 166 A Philosophy of Intellectual Property (Drahos) 162 photography 110, 127–8, 146 plagiarism 27 Plant, S.A. 132 Platt v. Walter 71 plays 32–3 Pollard, M. 54 Pollock, F. 90 post-publication, common law copyright 30 Power v. Walker 36, 43 A Practical Treatise on the Law of Patents for Invention and of Copyright (Godson) 41 Prince Albert v. Strange 91 Principles of Contract (Pollock) 90 Principles of Equity (Snell) 90 property 81, 132 in the abstract thing 88 copyright as 139–43 definitions of 139–40 literary and artistic productions treated as 163 literary works as 75, 91 in a patent or copyrighted work 41 personal or moveable 151 protection of 135 right to 135 property rights copyright as an intangible property right 18 and occupancy 39–40 protection for literary works 38 of property 135 publication injunctions to prevent 76 and loss of rights 76 right of first publication 18–19, 79 public domain 101–6 concept of 105 copyright’s public domain 106–22 critiques of copyright’s public domain 129–33 definitions of 104–5

Index externalities, and copyright’s public domain 122–9 and intellectual commons 109–10 and interest groups 131 origin and meanings 108 perceived 120 relationship with copyright 2 public interest 117, 118, 131, 135 Publishing, Piracy and Politics (Feather) 13 Purday, C. 78 Ransom, H. 13 Reade v. Conquest 68–70 and Donaldson 69 Reasons for a Modification of the Act of Anne (Turner) 34 Rental Rights Directive 106 Report of the Copyright Commissioners (1878) 78 Reports of Cases adjudged in the Court of the King’s Bench (Lofft) 26, 27, 28 rhetoric 8 Richardson v. Universities of Oxford and Cambridge 56 right of first publication 18–19, 79 The Right of Literature (Britton) 34 right to perform a work in public 153–5 The Right to Private Property (Waldron) 139 right to property 135 rights of authors 16 of booksellers 16 rights in rem 141, 162 Rose, M. 17, 108, 133 Routledge v. Low 71–2, 75 and Jeffreys 71, 75 Rowarth, C. 35 Rowarth v. Wilkes 35 Royal National Institute for the Blind 131 royalty payments 147 Ryan, M. 7 Salter, M. 28 Samuels, E. 111 Samuelson, P. 102, 125 Sayre v. Moore 29

199

Scarlett, J. (Lord Abinger) 45, 46 Scotland, book trade 14, 21, 42 Scrutton, T.E. 81–3, 90, 96, 163 The Seasons (Thomson) 15 Second Treatise on Government (Locke) 3, 4 Select Essays in Anglo-American Legal History (Veeder) 29 separability thesis 140–41 Seville, C. 38, 61 Shamans, Software, & Spleens (Boyle) 7 Shepherd v. Conquest 67–8 Sherman, B. 56, 103 Shoard, J. 64, 65 Shortt, J. 65 Simpson, A.W.B. 28 Singer, B. 91 Sisken, C. 55 Skone James, F.E. 94, 95, 97 The Sleepwalker (opera) 50, 51, 57–8 Snell, E.H.T. 90 Society for the Diffusion of Useful Knowledge 44 Sounding the Charge (painting) 83 sound recording 87–8 Southey v. Sherwood 116 Spalding, H.M. 80 Star Chamber decrees 76 Stationers’ Company 76, 108 Statute of Anne, 1709 5, 6, 23, 39, 76, 108, 161, 168 attempts to secure replacement act 14 and Coleman 30 and common law copyright 19, 20, 21, 23–4, 33, 81 complaints procedure 126 and music 46, 54 revision 36 statutory periods of protection 14, 31, 48 terms of 13 statutory right, and common law 86 Stealing the Mona Lisa (Leader) 101 Stephen, J. 79 Stephens, J.F. 90 Sterk, S.E. 4, 7 Sterling, A.J. 120 Stewart, R. 44 Stokes, S. 1 Storace v. Longman 29

200

Index

A Summary Statement of the Great Grievance imposed on Authors and Publishers (Brydges) 34 Talfourd, T.N. 53 technological protection measures (TPMs) 122, 125–6, 129, 158 Texas Law Review 7, 132 theatrical productions, and common law copyright 67–8 ‘thinghood’ of objects 140 Thomas, G. 103 The Times 45, 47, 50, 57, 70 Tonson v. Collins 14, 32 Tonson v. Walker 14 Torremans, P.L.C. 5, 6 Towse, R. 138 tragedy of the commons 4 Treatise on the Law of Actions on Statutes (Espinasse) 35, 43, 60 Treatise on the Law of Copyright (Burke) 40 A Treatise on the Law of Copyright (Curtis) 39, 43, 61 A Treatise on the Law of Copyright in Literature (Burke) 40, 61 A Treatise on the Law of Property in Intellectual Productions (Drone) 80, 172–3 A Treatise on the Laws of Literary Property (Maugham) 37, 38, 60 A Treatise Upon the Law of Copyright (Macgillivray) 79 TRIPS (Agreement on Trade-Related Aspects on Intellectual Property Rights) 163 Trustees of the British Museum v. Payne 47 Tuck & Sons v. Priester 83–4 and common law copyright 83–4 and Jeffreys 84 Turner, S. 34 UN Committee on Economic, Social and Cultural Rights 137, 142 Underdown, E.M. 65, 66 Underhill, A. 90 Underkuffler, L.S. 139 undisclosed domain 109–10 Unfair Contract Terms Act 1977 128

Unfair Terms in Consumer Contracts Regulations 1999 128 An Unhurried View of Copyright (Kaplan) 132 Universal Declaration of Human Rights 136 universities Oxford and Cambridge perpetual right to reprint 22–3 petition for legislation 20 Universities Act 1775 22–3 University of Cambridge v. Bryer 33, 34–5, 37, 60 University of Dayton Law Review 108 University of Pittsburg Law Review 121 unpublished manuscripts and Copyright Act 1911 64 injunctions to prevent publication 76 unpublished pictures 88 unpublished works and common law 70, 79, 94 European Copyright Duration Directive 110 right of authors to 80 USA 169 attitudes to international copyright 57 authors 57, 74 copyright and idea-expression dichotomy 112 use without permission 109, 111, 115 use of a work, concept 109 Van Caenegem, W. 129 Vaver, D. 8, 27 Veeder, V.V. 29 A Vindication of the Exclusive Right of Authors, to use their own works (Anon.) 112 Viva Henri Quatre (music) 43 Waldron, J. 139 Walker v. Lane 85 wallpaper manufacturers, unlawful copying 2–3 Walthoe v. Walker 14 Ward, A. 137 Wayne Law Review 17, 41 Wheaton, H. 50 Wheaton v. Peters 40, 60, 169, 170, 176 Whicher, J. 17

Index White v. Geroch 37 Whittingham v. Wooler 154 Winslow, R. 81 WIPO Copyright Treaty (WCT) Article 11 124 The Woman in Red (play) 70 The Work of Writing (Siskin) 55 works made available to the public 114

201

works not yet written 53 World Copyright Law (Sterling) 120 World Intellectual Property Organisation (WIPO) 144 Yates, J. 41 Zimmerman, D.L. 9