Introduction to Copyright: History, Basic Principles and Subsistence

Introduction to Copyright Law

• The CB writers note the general familiarity of copyright law to the public in providing protection to those making literature/art/music etc. but also note that it covers a much broader sweep of commercial, technological and cultural activities

• They note that copyright law itself is very complex and an understanding of matters of legal characterisation, technical definitions, legislative presumptions and statutory exemptions is key. The hard part isn't the cases but mapping it all together

History and justifications

The origins of copyright

• The CB writers note that the distinction between ‘oral culture’ (transmitted through stories, legends, myths) which represent the deep history of the people who transmit them and ‘print culture’ which enables individual ownership of expressions to be documented and the origin of ideas attributed to individual authors may have led to the emergence of copyright.

• This distinction still remains of legal significance since exclusive rights are offered mainly to fixed expressions like those in writings whereas oral expressions of ‘ideas’ remain common property free for all

The first literary property statute

• This was the Statute of Anne 1710 but prior to its enactment a number of other practical methods for securing publication rights developed such as Crown Patents granted over essential titles (Bibles, prayer books etc.), rights granted to members of the Stationer’s Company (exclusive rights over printing), and contracts between printers and publishers (through equity and common law concepts such as natural justice)

  • Yet still there remained a large, legitimate and clearly significant licensed book trade which was intensified by the Union with Scotland (since they were unaffected by London trade arrangements). It was this that led to the London Stationers successfully petitioning for law recognizing exclusive right to property

  • The Preamble to the Statute of Anne provides, inter alia

“Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting and publishing, or causing to be printed, reprinted and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty that it may be enacted

…

That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April and no longer”

• The CB writers note three key things from this:

  • It granted a right in the public interest – incentives created to encourage the supply of future works

  • Acknowledgement of the author as the original owner of the literary property right, but the interests of the author and printer are somewhat conflated

  • The right granted is only for a limited term

Philosophical justifications for Copyright

• The CB writers note the importance of the Enlightenment at this time – encouraging the pursuit of truth and raising education levels of the population. John Locke’s theory that one should have a natural right to own the fruits of their own labour was adapted later by Blackstone and extended into intangible rights into a case for the natural right of authors to perpetual copyright

• During this time Romanticism was also an influential movement which led to preoccupation with the ‘creative genius of the modern author’ - leading to presumptions that copyright rewards original creative endeavours and not just useful works.

Common law authorial rights

• Millar v Taylor

  • Facts: Millar claimed he purchased rights to The Season a work by a Scottish Poet and thus he obtained a perpetual CL right to republish it. Taylor claimed that under the Statute of Anne copyright expired and there was thus no infringement.

  • Held (Wiles J): The records of Chancery prove the existence of a common law right of the author – the statutory provisions do not affect pre-existing CL rights and the statute was primarily of application to situations like University publishing

  • Held (Aston J, Lord Mansfield): Their honours agreed that Taylor was a stranger attempting to reap the benefits of another man’s labour and that perpetual monopoly was essential to encourage the ‘painful researches of learned men’.

  • Dissent (Joseph Yates):

    • To succeed Millar had to prove that compositions of authors were property and property rights cannot exist beyond the boundaries of property (like the pages between the covers of a book and not the rights to reproduce it)

    • He rejected the possibility of acquiring property by labour alone because it assumes people can sustain a private right just by working on it – this would mean that another person who had the same ideas could not presume to publish them.

    • Blackstone’s Lockean justification was rejected because it begs the question in dispute. It presumes that ideas are capable of being privately and exclusively owned

• This case was effectively overruled in Donaldson v Beckett which, though there is considerable uncertainty surrounding the propositions that it stands for, is generally accepted to affirm the existence of copyright at common law but which had been supplanted by the Statute of Anne.

Limited Rights

• The CB writers note three key...

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