THE NATURE OF COPYRIGHT:
A Law of Users' Rights

CHAPTER 3
Copyright Changes:
An Author's Right?

The stationers' perpetual copyright finally expired in 1731, after its twenty-one-year reprieve by the Statute of Anne. The statutory copyright then became the sole legal protection for the right of exclusive publication, which was now limited to two terms of fourteen years each. By 1731, those books first published when the copyright act went into effect had already exhausted their initial term; and by 1738, even if they had been renewed, they were in the public domain after only twenty-eight years. In theory, the booksellers' monopoly was approaching its end.

But as is often the case, theory foundered on the reefs of reality. The booksellers viewed perpetual copyright as the basis of their livelihood, and they were not willing to sacrifice it on the altar of public interest merely because a statute purported to deprive them of their property. Still, it would be better to have their position supported by statute than not, and once again they sought relief from Parliament.¹ When this effort at rescue by legislation failed, they turned to the courts and attempted to obtain the judicial creation of a substitute for the stationers' copyright: a perpetual common-law copyright for the author. Their assumption was that authors would assign this new copyright to the booksellers in accordance with custom, an assumption justified by their control of the market. If authors wanted their books to be sold, they would do as the bookseller wished. The author's common-law copyright would thus displace the statutory copyright and provide a support for the booksellers' monopoly as secure as the earlier stationers' copyright.

The judicial efforts of the monopolists resulted in a forty-year campaign that came to be known as the Battle of the Booksellers, quite possibly the most long-lasting and notable instance of intellectual combat in Anglo-American jurisprudence. Although the forty-year controversy was filled with continual litigation, there were only two decisions that had any lasting importance. There were the cases of Millar v. Taylor, a King's Bench decision, and Donaldson v. Beckett, a House of Lords decision.²

In 1767, Andrew Millar, a bookseller, brought an action in the Court of King's Bench against Robert Taylor for printing James Thomson's long poem The Seasons, which Millar had purchased from the author in 1729. The plaintiff had duly entered his copy in the Stationers' Register, but the period of protection granted by the Statute of Anne had expired. There were two questions in the case: Did the author of a book have a copyright at common law after publication? Was this right taken away by the Statute of Anne? The court ruled three to one in favor of the plaintiff, answering the first question yes, the second no.

Justice Willes relied on the charter and bylaws of the Stationers' Company, the various Star Chamber decrees that had earlier regulated the press, the ordinances passed by Parliament during the Interregnum, and the Licensing Act of 1662 to support the author's common-law copyright. The fault in his use of this evidence, as Justice Yates pointed out in dissent, was that it was irrelevant. None of these matters provided any protection for the author, and since the outdated stationers' copyright had been limited to members of the company, no author would even have been qualified to have that copyright.

The majority's other reasons for supporting the common-law copyright, however, are more complex and more persuasive. These reasons had to do primarily with the natural right of a person in the property he or she creates. On this point, the opinions of Justice Aston and Lord Mansfield are particularly interesting. Justice Aston, after discussing the concept of property, concluded that "a man may have property in his body, life, fame, labours, and the like; and, in short, in anything that can be called his."³ Later, he commented, "I do not know, nor can I comprehend any property more emphatically a man's own, nay, more incapable of being mistaken, than his literary works."⁴ Lord Mansfield, in speaking of the author's common-law copyright before publication, said that the right is not found in custom or precedent, but is drawn

[f]rom this argument, because it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name, without his consent. It is fit that he should judge when to publish, or whether he ever will publish. It is fit he should not only choose the time, but the manner of publication; how many; what volume; what print. It is fit, he should choose to whose care he will trust the accuracy and correctness of the impression; in whose honesty he will confide, not to foist in additions: with other reasonings of the same effect.⁵

These were sufficient reasons to protect the copy before publication, he argued, and the same reasons should apply after the author has published. Lord Mansfield's argument was best summed up in the following statement: "His [an author's] name ought not to be used, against his will. It is an injury, by a faulty, ignorant and incorrect edition, to disgrace his work and mislead the reader."⁶ At this point, however, Mansfield treated ownership of the copyright as ownership of the work. The major fallacy in his argument, then, was that it ignored the crucial fact that when an author assigned the copyright to a publisher, as was usually the case, he signed away those very rights that Mansfield said compelled a recognition of his perpetual copyright.

In a dissenting opinion, Justice Yates contended that there was no common-law copyright of the author, because one cannot have a property "in the style and ideas of his work" at common law. The only copyright, he said, was the statutory copyright under the Statute of Anne. "The Legislature indeed may make a new right. The Statute of Queen Ann. has vested a new right in authors, for a limited time: and whilst that right exists, they will be established in the possession of their property."⁷ Yates thus implied but did not clearly state a distinction between the ownership of the work and the ownership of the copyright at that work.

The opinions in the Millar case treated copyright as an author's right. On this point, Yates in dissent differed only in noting that the author's copyright was a statutory, not a common-law, copyright. Yet, in light of the earlier history of copyright, all the opinions missed the basic point: copyright remained essentially a publisher's right; authors had nothing to do with its development.

Millar v. Taylor was not appealed, but it lasted as a precedent for only five years. Millar himself died in June 1768, while his case was pending, and the executors of his estate sold his copies at auction on 13 June 1769. Thomas Beckett and fourteen partners purchased in shares for £505 the copyrights of works by James Thomson, including the poems upon which the Miller case had conferred the author's perpetual common-law copyright.

Under the Statute of Anne, however, the copyrights of the poems had expired in 1757 at the latest. Alexander Donaldson (who had been excluded from the sale of Millar's copyrights) then claimed the right to publish the works free of charge and allegedly sold several thousand copies of The Seasons printed in Edinburgh. In November 1772, on the authority of the Millar case, Beckett and his partners received a perpetual injunction to restrain Donaldson. Their ultimate goal, however, was to have the great question of literary property resolved by the House of Lords, to which Donaldson appealed.⁸ The result was the landmark case of Anglo-American copyright law, Donald v. Beckett.

The lords in the Donaldson case directed that five questions be put to the judges of the common-law courts, King's Bench, Common Pleas, and Exchequer, for their advice and opinion. The questions and their answers were as follows:

1. Whether an author of a book or literary composition had at common law "the sole right of first printing and publishing the same for sale," and a right of action against a person printing, publishing, and selling without his consent. Advised, yes by a vote of eight to three.

2. If the author had such a right, did the law take it away upon his publishing the book or literary composition; and might any person thereafter be free to reprint and sell the work? Advised, no by a vote of seven to four.

3. Assuming the right of common law, was it taken away by the Statute of Anne, and is an author limited to the terms and conditions of that statute for his remedy? Advised, yes by a vote of six to five.

4. Whether an author of any literary composition and his assigns have the sole right of printing and publishing the same in perpetuity by the common law. Advised, yes by a vote of seven to four.

5. Whether this right was restrained or taken away by the Statute of Anne. Advised, yes by a vote of six to five.⁹

The questions fall in two groups: the first three apply only to the author, the last two to the author and his assigns. The fourth question dealing with the author and his assigns was apparently intended to make sure that the Millar case, which had held that the author could assign his common-law copyright, was specifically reconsidered.

On the basis of these published responses, American courts and commentators assumed that (and have since acted as if) the House of Lords had held that the author had a common-law copyright.¹⁰ Recent scholarship, however, demonstrates that such a reading of Donaldson is wrong, and that in fact the lords did not so hold.¹¹ The opinions of the common-law judges were advisory only, and after hearing them, the lords debated the case and by a vote of 22 to 11 reversed the grant of the injunction.¹²

The reason for the misreading is simple enough: an overreliance on the account of the case in volume 4 of Sir James Burrow's Reports of Cases Argued and Adjudged in the Court of King's Bench, which was the most widely circulated report and thus the one most readily available in the United States.¹³ The report in Burrow, however, is incomplete, presumably because "at the time of the Donaldson decision it was a contempt punishable by imprisonment to public any statements made by a member of Parliament in the course of parliamentary business."¹⁴ Moreover, the report of Donaldson in Burrow consists of only ten pages and appears as an appendix to the report of Millar v. Taylor, which is slightly over one hundred pages in length. Anyone reading Millar first, followed immediately by the answers to the questions in Donaldson, would reasonably have concluded that the lords had recognized the common-law copyright, which is what most commentators and judges thought in the early years of American copyright. But a more complete report of the case in Cobbett's Parliamentary History, published in 1817, demonstrates why such a conclusion is in error.

Cobbett's report of the proceedings in the House of Lords consists of the arguments of counsel, the opinions of the judges, and the speeches of the lords, of whom only five spoke. A brief excerpt from each will provide the tenor of the proceedings.

Sir John Dalrymple, counsel arguing for Donaldson, contended (among other things) that there was no property in ideas:

If I copy a manuscript, says he, and publish it, I am liable to a civil action; if I steal a book, to a criminal one; the one is simply taking ideas, the other a chattel. But, argues he, what property can a man have in ideas? Whilst he keeps them to himself they are his own, when he publishes them they are his no longer. If I take water from the ocean, it is mine, if I pour it back it is mine no longer.¹⁵

Solicitor General Wedderburn, counsel for the booksellers, argued as follows:

Authors, he contended, both from principles of natural justice, and the interest of society, had the best right to the profits accruing from a publication of their own ideas; and as it had been admitted on all hands that an author had an interest or property in his own manuscript, previous to publication; he desired to know who could have a greater claim to it afterwards. It was an author's dominion over his ideas that gave him his property in his manuscript originally, and nothing but a transfer of that dominion or right of disposal could take it away. It was absurd to imagine, that either a sale, a loan, or a gift of a book, carried with it an implied right of multiplying copies; so much paper and print were sold, lent, or given, and an unlimited perusal was warranted from such sale, loan or gift, but it could not be conceived that when 5s. were paid for a book, the seller meant to transfer a right of gaining 100l.; every man must feel to the contrary, and confess the absurdity of such an argument.¹⁶

Justice Ashurst's opinion is an example of the opinions of the judges favoring the author's common-law copyright.

[He] accorded in opinion with the Justice Nares, after tracing the nature of literary property, and producing many cogent reasons to prove that such a claim was warranted by the principles of national justice and solid reason. Making an author's intellectual ideas common, was, he observed, giving the purchaser an opportunity of using those ideas, and profiting by them, while they instructed and entertained him; but he could not conceive that the vender, for the price of 5s., sold the purchaser a right to multiply copies, and so get 500l. Literary property was to be defined and described as well as other matters, and matters which were tangible. Every thing was property that was capable of being known or defined, capable of a separate enjoyment, and of value to the owner. Literary property fell within the terms of this definition. According to the appellants, if a man lends his manuscript to his friend, and his friend prints it, or if he loses it, and the finder prints it, yet an action would lie (as Mr. Justice Yeates had admitted), which shewed that there was a property beyond the materials, the paper and print. That a man, by publishing his book, gave the public nothing more than the use of it.¹⁷

The most cogent statement against the author's common law copyright by the judges was that of Lord Chief Justice De Grey:

The truth is, the idea of a common-law right in perpetuity was not taken up till after that failure (of the booksellers) in procuring a new statute for an enlargement of the term. If (say the parties concerned) the legislature will not do it for us, we will do it without their assistance: and then we begin to hear of this new doctrine, the common-law right, which, upon the whole, I am of opinion, cannot be supported upon any rules or principles of the common law of this kingdom.¹⁸

Lord Camden was one of the strongest opponents of the author's common-law copyright; indeed, it was at his suggestion that questions 4 and 5 (dealing with the author and his assigns) had been added to the list of questions the lords posed to the judges.¹⁹ Lord Camden lauded De Grey's argument and continued:

The arguments attempted to be maintained on the side of the Respondents, were founded on patents, privileges, Star-chamber decrees, and the bye laws of the Stationers' Company; all of them the effects of the grossest tyranny and usurpation; the very last places in which I should have dreamt of finding the least trace of the common law of this kingdom; and yet, by a variety of subtle reasoning and metaphysical refinements, have they endeavoured to squeeze out the spirit of the common law from premises, in which it could not possibly have existence.²⁰

Lord Camden's speech was lengthy, but perhaps that portion which most clearly rejects the author's common-law copyright is the following:

Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated. "Scire tuum nihil est, nisi te scire hoc sciat alter." Glory is the reward of science, and those who deserve it, scorn all meaner views: I speak not of the scribblers for bread, who teaze the press with their wretched productions, fourteen years is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world; it would be unworthy [of] such men to traffic with a dirty bookseller for so much [as] a sheet of a letter press. When the bookseller offered Milton five pound for his Paradise Lost, he did not reject it, and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour; he knew that the real price of his work was immortality, and that posterity would pay it. Some authors are as careless about profit as others are rapacious of it; and what situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work to be put forth, or wait till a wife or children are to be provided for by the sale of an edition. All our learning will be locked upon in the hands of the Tonsons and the Lintons of the age, who will set what price upon it their avarice chuses to demand, till the public become as much their slaves, as their own hackney compilers are.²¹

Lord Chancellor Apsley was also against the author's common-law copyright, a significant opponent, because he had issued the decree that was in issue. He explained "that he had made the decree entirely as of course, in pursuance of the decision upon the right in the court of King's-bench, and that as what he had decreed, as a chancellor, was merely a step in the graduation to a final and determinate issue in the house of Peers, he was totally unbiassed upon the question, and therefore could speak to it as fairly from his own sense of it, as any one of the judges, or any of the lords present." He was "clearly of opinion with the appellants [Donaldson]."²¹

According to the report in Cobbett's Parliamentary History, only three other lords spoke on the "Question of Literary Property": Lord Lyttelton, the bishop of Carlisle, and Lord Effingham. Of these three, only Lord Lyttlelton spoke in favor of the author=s common-law copyright. The bishop of Carlisle "made use of similar arguments with those of lord Camden against the property." Then the report continues, "Lord Effingham rose last, and begged to urge the liberty of the press, as the strongest argument against this property; adding, that a despotic minister, hearing of a pamphlet which might strike at his measures, may buy the copy, and by printing 20 copies, secure it his own, and by that means the public would be deprived of the most interesting information. Lord Mansfield did not speak."²³

In view of the opinions of Lord Camden and Lord Chancellor Apsley, Burrow's terse note at the end of his report of the case takes on considerable significance: "And the Lord Chancellor seconding Lord Camden's motion 'to reverse'; the decree was reversed."²⁴

The Donaldson decision was widely approved at the time of its rendering, except by the few monopolists whom it affected directly, who once again turned to Parliament for relief, contending that in reliance on the Millar case they had invested thousands of pounds in the purchase of old copyrights not protected by statute. The claims of economic ruin were sufficient to get a bill before the House of Commons, but there was widespread opposition both inside and outside of Parliament.²⁵ The authors did not support the booksellers, and many counterpetitions opposed their claims. The most effective opposition was probably that of various competitors who "stated that only a few of the London booksellers were affected by the decision" of the Donaldson case.²⁶

There is no surviving copy of the bill presented in April 1774, but some responses to it remain on record. For instance, Mr. Dempster in the House of Commons charged that "this Bill was not meant to restore the law concerning copyright as it formerly stood, but as the individual booksellers of London thought it stood."²⁷ In spite of such strong opposition, the bill passed the House of Commons and was sent to the House of Lords.

Opposition to the bill by the lords was indeed bitter. Lord Denbigh stated "that the very principle of the Bill was totally inadmissible, and that it was not necessary to call witnesses, or to make any inquiry into a Bill that violated the rights of individuals, and affronted that House." The Lord chancellor argued "that the booksellers never could imagine that they had a common-law right, . . . that the monopoly was supported among them by oppression and combination, and that . . . none of their allegations nor any part of the Bill required any further inquiry." And Lord Camden pointed out "that the monopolizing booksellers had robbed others of their property; . . . that they had maintained this monopoly by most iniquitous oppression, and exercised it to the disgrace of printing; that they were monopolists, and if the line of justice and equity were drawn, it would be, that those who had deprived others of their right for a series of years, should make compensation to all those they had injured by such conduct."²⁸

The bill was rejected, and so, late in the eighteenth century, the Battle of the Booksellers ended. Copyright had ceased to be recognized as a publisher's right and had come to be known as an author's right. And it was as an author's right that copyright was received into the United States a few years later.

Our conclusion that American courts misread Donaldson is, we think, supported by the facts now known; but we also think that the harm resulting from the misreading derived not from the common-law copyright per se but from the misleading effect that right has subsequently had on the courts' perception of the nature of copyright. There was no disagreement among the disputants in the Donaldson case regarding whether or not an author's work was his or her property upon creation.²⁹ The disagreement was over whether the author at common law had the exclusive right to reproduce the work in copies. Whatever one concludes as to the lords' actual holding on this point, there was uniform agreement that the lords had held that the copyright statute superseded this right, even if it had earlier existed. Since the issue of the common-law copyright was never to be litigated in either England or the United States without a copyright statute, the author's common-law copyright was a stillborn concept. Copyright is the right of exclusive publication, whether in perpetuity or for a limited time. Because of the copyright statute, the common-law copyright never meant more than the right of first publication, a right agreeable to the opponents of the author's common-law copyright in perpetuity.

The author's common-law copyright thus came to mean the author's property interest in his or her work prior to publication, an interest that courts would probably have recognized even if the Donaldson case had never been decided. The harm from the common-law copyright, then, came not from its content but from its name, because the name gave the law of copyright a dual theoretical basis. The legislative statute notwithstanding, copyright came to be viewed as a natural-law right of the author as well as the statutory grant of a limited monopoly. The result ever since has been confusion as to the nature of copyright: one theory holding that copyright's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute. But there is a significant difference between source and origin. The author's creation is obviously the source of copyright; but since copyright comes into existence only under the terms of the statute, the statute itself is its origin. The fact that creation of a work is legally a necessary condition for copyright did not, until the 1976 U.S. Copyright Act, mean that it was a sufficient condition.

Moreover, statutory copyright has long been only nominally a right of the author. The epithet "author's right" itself was a fiction from the start, because authors, by assigning copyright to publishers, assigned their entire interests in the works. Yet, once the phrase achieved currency, publishers were able to argue that copyright was the author's property by reason of creation under natural law, rather than by statutory grant, and that justice therefore required that the rights of copyright be enlarged to protect the author (even though these rights were primarily to benefit the publisher). Copyright as an author's right was and continues to be a fiction.

The booksellers knew this and acted accordingly. Even after the Donaldson decision the booksellers acted as if it had been decided in their favor. They simply created their private perpetual copyright by unwritten agreement within the trade. As late as 1791, James Boswell, writing about Dr. Samuel Johnson's Lives of the Poets, acknowledged that "The Poets were selected by the several booksellers who had the honorary copy right, which is still preserved among them by mutual compact, not withstanding the decision of the House of Lords against the perpetuity of Literary Property" (emphasis added).³⁰

¹ 22 H.C. Jour. 400; see Patterson, Copyright in Historical Perspective, pp. 54-158.

² Millar v. Taylor in 4 Burr, 2303; 98 Eng. Rep. 201 (1769). Donaldson v. Beckett in 4 Burr. 2408; 98 Eng. Rep. 257; 2 Brown’s Parl. Cases 129; 1 Eng. Rep. 837 (1774); 17 Cobbett’s Parl. Hist. 953 (1813).

³ 4 Burr. at 2338; 98 Eng. Rep. at 220.

⁴ 4 Burr. at 2345; 98 Eng. Rep. at 224.

⁵ 4 Burr. at 2398; 98 Eng. Rep. at 252.

⁶ 4 Burr. at 2405; 98 Eng. Rep. at 256.

⁷ 4 Burr. at 2386; 98 Eng. Rep. at 245.

⁸ As Donaldson’s counsel argued, "The bill in his cause was penned by the respondents [Beckett et al.] with extreme caution. . . . It might therefore be inferred, that the present attempt was an experiment, to try how far the doctrine of [Millar v. Taylor] may be extended beyond the case itself" (2 Brown’s Parl. Cases at 132; 1 Eng. Rep. at 847).

⁹ 4 Burr. at 2408-9; 98 Eng. Rep. at 257-58.

¹⁰ In The Federalist No. 43, the following statement appears: "The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law."

¹¹ Howard B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," Wayne Law Review 29 (1983), 1119.

¹² 17 Cobbett’s Parl. Hist. at 1003.

¹³ See Abrams at 1164, n. 189.

¹⁴ Abrams at 1159.

¹⁵ 17 Cobbett’s Parl. Hist. at 962.

¹⁶ 17 Cobbett’s Parl. Hist. at 965.

¹⁷ 17 Cobbett’s Parl. Hist. at 975-76.

¹⁸ 17 Cobbett’s Parl. Hist. at 992.

¹⁹ 17 Cobbett’s Parl. Hist. at 971.

²⁰ 17 Cobbett’s Parl. Hist. at 991.

²¹ 17 Cobbett’s Parl. Hist. at 999.

²² 17 Cobbett’s Parl. Hist. at 1002.

²³ 17 Cobbett’s Parl. Hist. at 1003.

²⁴ 4 Burr. at 2417; 98 Eng. Rep. at 262.

²⁵ 34 H.C. Jour. 100.

²⁶ A. S. Collins, Authorship in the Days of Johnson (London, 1927), p. 100. Collins continues: "We find petitions of the booksellers and printers of Edinburgh; of sundry booksellers in London and Westminster on behalf of themselves and their brethern in the country; of the printers and booksellers of the city and University of Glasgow; of the Committee of the Royal Boroughs of Scotland; of the booksellers, printers, and bookbinders of York; and of Donaldson himself."

²⁷ 17 Cobbett’s Parl. Hist. at 1090.

²⁸ 17 Cobbett’s Parl. Hist. at 1400-2.

²⁹ Lord Chief Justice De Grey, with whom Lord Camden agreed, said: "With 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, against any man who shall convert that property to his own use: but 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 were displayed; which is termed literary property, or an exclusive privilege of multiplying copies of the manuscript, or book which right is the subject of the second question posed to us" (17 Cobbett’s Parl. Hist. at 988).

³⁰ Boswell’s Life of Johnson, Oxford Standard Authors Edition, ed. R. W. Chapman (London: Oxford University Press, 1953), pp. 1008-9.