Perpetual copyright
Encyclopedia
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 either on the date of creation/publication, or on the date of the creator's death. (See List of countries' copyright length.) Exceptions have sometimes been made, however, for unpublished works. Usually, special legislation is required, granting a perpetual copyright to a specific work.
provided for by the Statute of Anne
, the first copyright
statute, began to expire in 1731 London booksellers fought to defend their dominant position by seeking injunction
s 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). A debate raged on whether printed ideas could be owned and London booksellers and other supporters of perpetual copyright argued that without it scholarship would cease to exist and that authors would have no incentive to continue creating works of enduring value if they could not inherit the property rights to their descendants. Opponents of perpetual copyright argued that it amounted to a monopoly
, which inflated the price of books, making them less affordable and therefore prevented the spread of the Enlightenment
. London booksellers were attacked for using rights of authors to mask their greed and self-interest in controlling the book trade.
When Donaldson v Beckett reached the House of Lords
in 1774 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 "Knowledge and science are not things to be bound in such cobweb chains." In its ruling the House of Lords established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation. By confirming that the copyright term
, that is the length of time of work is in copyright, did expire according to statute the Lords also affirmed the public domain
. The Donaldson v Beckett ruling confirmed that a large number of works and books first published in Britain were in the public domain, either because the copyright term granted by statute had expired, or because they were first published before the Statute of Anne
was enacted in 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton
and Geoffrey Chaucer
, works now considered classics. The expansion of the public domain in books broke the dominance of the London booksellers and allowed for competition, with the number of London booksellers and publishers rising three fold from 111 to 308 between 1772 and 1802. Nevertheless calls for perpetual copyright continued in Britain and France until the mid-19th Century.
before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright
, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright, and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne 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. According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed both as a natural law right of the author and 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 its origin exists only through the copyright statute. In 1834 the Supreme Court
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.
amended the Copyright Act in 1927, from its previous 50 years modified Copyright term to "perpetual". However, this stipulation was withdrawn in 1966.
and Cambridge
. This provision was abolished by the Copyright, Designs and patents Act 1988, but under transitional arrangements (Schedule I, section 13(1)) these printing rights do not fully expire until 2039.
J. M. Barrie
's play Peter Pan, or The Boy Who Wouldn't Grow Up is covered by special legislation establishing that Great Ormond Street Hospital
may collect royalties in perpetuity. However, this is strictly speaking a tax rather than a perpetual copyright because the hospital does not retain creative control over the work, due to EU law which sets a 70-year limit to copyright duration. Note that the provision applies to the play and to performances and adaptations of it, not to the earlier Peter Pan stories in The Little White Bird
.
, perpetual copyright is prohibited by its Constitution
, which provides that copyright is "for limited times". However, it neither specifies how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Indeed, since the enactment of the Copyright Act of 1790
, copyright term has been successively extended by Congress on four occasions, retroactively extending the terms of any copyrights still in force. Following the enactment of the Copyright Term Extension Act
in 1998, a coalition of plaintiffs led by publisher Eric Eldred
argued that this act and a previous extension of the copyright term
in the 1970s had created a de facto "perpetual copyright on the installment plan". This argument was rejected by the US Supreme Court
in Eldred v. Ashcroft
, which held that there was no limit to how many times the term of copyright may be extended by Congress, so long as it is still a limited term at the time of each extension.
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...
without a finite 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...
, or to a copyright
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...
whose finite 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...
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 either on the date of creation/publication, or on the date of the creator's death. (See List of countries' copyright length.) Exceptions have sometimes been made, however, for unpublished works. Usually, special legislation is required, granting a perpetual copyright to a specific work.
Battle of the booksellers
When the statutory copyright termCopyright 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...
, the first copyright
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...
statute, began to expire in 1731 London booksellers fought to defend their dominant position by seeking injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s 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
Common law copyright
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...
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). A debate raged on whether printed ideas could be owned and London booksellers and other supporters of perpetual copyright argued that without it scholarship would cease to exist and that authors would have no incentive to continue creating works of enduring value if they could not inherit the property rights to their descendants. Opponents of perpetual copyright argued that it amounted to a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
, which inflated the price of books, making them less affordable and therefore prevented the spread of the Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
. London booksellers were attacked for using rights of authors to mask their greed and self-interest in controlling the book trade.
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 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 "Knowledge and science are not things to be bound in such cobweb chains." In its ruling the House of Lords established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation. By confirming that the 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...
, that is the length of time of work is in copyright, did expire according to statute the Lords also affirmed the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. The Donaldson v Beckett ruling confirmed that a large number of works and books first published in Britain were in the public domain, either because the copyright term granted by statute had expired, or because they were first published before 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 enacted in 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton
John Milton
John Milton was an English poet, polemicist, a scholarly man of letters, and a civil servant for the Commonwealth of England under Oliver Cromwell...
and Geoffrey Chaucer
Geoffrey Chaucer
Geoffrey Chaucer , known as the Father of English literature, is widely considered the greatest English poet of the Middle Ages and was the first poet to have been buried in Poet's Corner of Westminster Abbey...
, works now considered classics. The expansion of the public domain in books broke the dominance of the London booksellers and allowed for competition, with the number of London booksellers and publishers rising three fold from 111 to 308 between 1772 and 1802. Nevertheless calls for perpetual copyright continued in Britain and France until the mid-19th Century.
Common law copyright
After Donaldson v Beckett disagreement continued over whether the House of Lords affirmed the existence of common law copyrightCommon law copyright
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...
before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright
Common law copyright
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...
, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright, and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne 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. According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed both as a natural law right of the author and 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 its origin exists only through the copyright statute. In 1834 the Supreme Court
Supreme 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 right
Common law copyright
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...
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.
Portugal
PortugalPortugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
amended the Copyright Act in 1927, from its previous 50 years modified Copyright term to "perpetual". However, this stipulation was withdrawn in 1966.
United Kingdom
The UK Copyright Act 1775 established a type of perpetual copyright under which the Authorized or King James Version of the Bible was allowed to be printed only by the Royal printer and by the printers of the Universities of OxfordUniversity of Oxford
The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096...
and Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
. This provision was abolished by the Copyright, Designs and patents Act 1988, but under transitional arrangements (Schedule I, section 13(1)) these printing rights do not fully expire until 2039.
J. M. Barrie
J. M. Barrie
Sir James Matthew Barrie, 1st Baronet, OM was a Scottish author and dramatist, best remembered today as the creator of Peter Pan. The child of a family of small-town weavers, he was educated in Scotland. He moved to London, where he developed a career as a novelist and playwright...
's play Peter Pan, or The Boy Who Wouldn't Grow Up is covered by special legislation establishing that Great Ormond Street Hospital
Great Ormond Street Hospital
Great Ormond Street Hospital for Children is a children's hospital located in London, United Kingdom...
may collect royalties in perpetuity. However, this is strictly speaking a tax rather than a perpetual copyright because the hospital does not retain creative control over the work, due to EU law which sets a 70-year limit to copyright duration. Note that the provision applies to the play and to performances and adaptations of it, not to the earlier Peter Pan stories in The Little White Bird
The Little White Bird
The Little White Bird is a novel by J. M. Barrie, published in 1902, ranging in tone from fantasy and whimsy to social comedy with dark aggressive undertones. The book attained prominence and longevity due to several chapters written in a softer tone than the rest of the book, in which it...
.
United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, perpetual copyright is prohibited by its Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which provides that copyright is "for limited times". However, it neither specifies how long that term can be, nor does it impose any restriction on the number of times the term may be extended. Indeed, since the enactment of the Copyright Act of 1790
Copyright Act of 1790
The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...
, copyright term has been successively extended by Congress on four occasions, retroactively extending the terms of any copyrights still in force. Following the enactment of the Copyright Term Extension Act
Copyright Term Extension Act
The Copyright Term Extension Act of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship...
in 1998, a coalition of plaintiffs led by publisher Eric Eldred
Eric Eldred
Eric Eldred, born 1943, is an American literacy advocate and the proprietor of the unincorporated Eldritch Press, a website which republished the works of others which are in the public domain . Eldritch Press for some years ran on a Linux server from Eldred's home and is now hosted by Ibiblio and...
argued that this act and a previous extension of the copyright term
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
in the 1970s had created a de facto "perpetual copyright on the installment plan". This argument was rejected by the US Supreme Court
Supreme 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...
in Eldred v. Ashcroft
Eldred v. Ashcroft
Eldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
, which held that there was no limit to how many times the term of copyright may be extended by Congress, so long as it is still a limited term at the time of each extension.