Common law copyright
Encyclopedia
Common law copyright is the legal doctrine which contends that copyright
is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright
).
The doctrine was repudiated by the courts in the United Kingdom
(Donaldson v. Beckett
, 1774) and the United States
(Wheaton v. Peters
, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.
publishers could pass on their royal grants of copyright to their heirs in perpetuity. When the statutory copyright term
provided for by the Statute of Anne
began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery
for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743-1748), the London booksellers turned to common law
and starting a 30 year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749-1751) and Tonson v. Collins (1761-1762).
When Donaldson v Beckett reached the House of Lords
in 1774 only one Lord, Lord Lyttelton, spoke in favour of common law copyright. Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "[t]his perpetuity now contended for is as odious and as selfish as any other, it deserves as much reprobation, and will become as intolerable. Knowledge and science are not things to be bound in such cobweb chains." The House of Lords rejected common law copyright.
The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it" (Lord Chief Justice De Grey), but that prior to the Statute of Anne
the right to copy was "founded on patents, privileges, Star Chamber Decrees and the bylaws of the Stationers' Company" (Lord Camden). In any event, they determined, the Statute of Anne
superseded any common law rights of the author which may have existed prior to the statute. The previous entry here maintained that the Lords found that "parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good," quoting Ronan. However, the use of the phrase "natural rights" is not justified by the historical record. Lord Chief Baron Smythe stated that the Statute of Anne
was "a compromise between authors and printers contending for a perpetuity, and those who denied them any statute right," but the Lords in no way accepted that such a common law or 'natural' right of the author in perpetuity ever existed or developed. Lord Chief Justice De Grey saw no evidence of any such right in the courts in the 300 years since the invention of the printing press and charged that "the idea of a common-law right [of the author] in perpetuity was not taken up till after that failure in procuring a new statute for an enlargement of the term." See, http://www.copyrighthistory.com/donaldson.html.
According to Patterson and Livingston there remains confusion about the nature of copyright ever since the Donaldson case. Copyright has come to be viewed as a natural law right of the author as well as the statutory grant of a limited monopoly
. One theory holds that copyright's origin occurs at the creation of a work, the other that it origin exists only through the copyright statute.
ruled in Wheaton v. Peters
, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law
right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright
Perpetual copyright
Perpetual copyright can refer to a copyright without a finite term, or to a copyright whose finite term is perpetually extended. Perpetual copyright in the former sense is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based...
).
The doctrine was repudiated by the courts in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
(Donaldson v. Beckett
Donaldson v. Beckett
Donaldson v Beckett 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257 ; 17 Cobbett's Parl. Hist. 953 is the ruling by the United Kingdom House of Lords that denied the continued existence of a perpetual common law copyright and held that copyright was a creation of...
, 1774) and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
(Wheaton v. Peters
Wheaton v. Peters
Wheaton v. Peters, , was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright. This was also Chief Justice John Marshall's last major...
, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.
Battle of the booksellers
Until the enactment of the Statute of AnneStatute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
publishers could pass on their royal grants of copyright to their heirs in perpetuity. When the statutory copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
provided for by the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743-1748), the London booksellers turned to common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and starting a 30 year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749-1751) and Tonson v. Collins (1761-1762).
When Donaldson v Beckett reached the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in 1774 only one Lord, Lord Lyttelton, spoke in favour of common law copyright. Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "[t]his perpetuity now contended for is as odious and as selfish as any other, it deserves as much reprobation, and will become as intolerable. Knowledge and science are not things to be bound in such cobweb chains." The House of Lords rejected common law copyright.
The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it" (Lord Chief Justice De Grey), but that prior to the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
the right to copy was "founded on patents, privileges, Star Chamber Decrees and the bylaws of the Stationers' Company" (Lord Camden). In any event, they determined, the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
superseded any common law rights of the author which may have existed prior to the statute. The previous entry here maintained that the Lords found that "parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good," quoting Ronan. However, the use of the phrase "natural rights" is not justified by the historical record. Lord Chief Baron Smythe stated that the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
was "a compromise between authors and printers contending for a perpetuity, and those who denied them any statute right," but the Lords in no way accepted that such a common law or 'natural' right of the author in perpetuity ever existed or developed. Lord Chief Justice De Grey saw no evidence of any such right in the courts in the 300 years since the invention of the printing press and charged that "the idea of a common-law right [of the author] in perpetuity was not taken up till after that failure in procuring a new statute for an enlargement of the term." See, http://www.copyrighthistory.com/donaldson.html.
According to Patterson and Livingston there remains confusion about the nature of copyright ever since the Donaldson case. Copyright has come to be viewed as a natural law right of the author as well as the statutory grant of a limited monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
. One theory holds that copyright's origin occurs at the creation of a work, the other that it origin exists only through the copyright statute.
Wheaton v. Peters
In 1834 the Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled in Wheaton v. Peters
Wheaton v. Peters
Wheaton v. Peters, , was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright. This was also Chief Justice John Marshall's last major...
, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.