Evolution of Literary Property Rights

Evolution of Literary Property Rights Presented by: Professor Sir Robin Jacob (UCL IBIL) Date: 26 March 2024 Statute Of Anne 1710: Context - 1695 - in England, expiry of Licensing Act 1662 and pre-publication censorship not replaced - 1707 - Anglo-Scottish Union of 1707 - 1708 - abolition of Scottish Privy Council (granter of literary property rights in Scotland) - Gaps in both England and Scotland Statute Of Anne 1710: Content - Statute gave author or bookseller 'sole liberty' of publishing a book for a period of 14 years from first publication, with authors (but not booksellers) being entitled to a further 14 years of exclusive right after expiry of initial period of protection. - Statute further provided penal monetary sanctions for infringement of these exclusive rights, half payable to the Crown and the other half to the plaintiff, so long as, prepublication, the title to the book was registered at Stationers Hall. - Did Statute actually confer the exclusive right, or rather merely recognize and then in some respects confine it? English Equity: Expanding Statute's Reach? - "Well before 1740, the Court of Chancery in England had decided that, provided the party bringing the action first waived his claim to the penalties provided by the Statute of Anne, it could grant the equitable remedies of injunctions (orders prohibiting the continuation of infringing activities) and requiring infringers to hand their profits over to the right-holders by way of damages. These entitlements were generally seen to arise because the rights infringed arose under, or at least in the shadow of, the Statute rather than recognizing rights that arose quite independently (although the latter position would be argued in the subsequent development of the law). But the basis of Chancery's jurisdiction in these cases was never debated before or explained in any depth by the court or by contemporary writers on Equity. What seems to have happened was that the London booksellers saw far greater practical utility in the equitable remedies of the injunction and account of profits than in those provided by the Statute, and neither defendants nor the Chancery judges chose to place doctrinal difficulties in their path." Scots Law: 'A Mixt Jurisdiction Of Law And Equity' - Midwinter v Hamilton (1748) - rejects equitable supplementation of the Statute of Anne in claim by London against Scottish bookseller. - 'monopolies or personal privileges cannot be extended by a court of equity; because that court may prevent mischief, but has no power to do any act for enriching any person, or making him loculation, as termed in the Roman law.' (Lord Kames, Principles of Equity 1st edition (Edinburgh, 1760), 185). - Kames counsel for Scottish booksellers in Midwinter Expiry Of Statutory Right: A Common Law Right? - Millar v Taylor (1768) 4 Burr 2303 (King's Bench) - Millar a (Scottish) London bookseller; Taylor a (collusive?) Berwick bookseller specializing in cheap reprints of out-of-copyright works - Subject-matter = James Thomson's The Seasons, first published 1726-1730; Thomson died 1748 - Court led by Lord Chief Justice Mansfield (a Scot and, earlier, counsel acting for London booksellers) - Held (Yates J dissenting): common law right to literary property vested in authors prepublication and revived after expiry of privileges conferred by the Statute of Anne; could be assigned to author's publishers and so continue to be used by them even after the author died. Alexander Donaldson (1727-1794) - Edinburgh bookseller, specializing in cheap reprints from 1760 - Moves to London 1763, to join brother in bookselling partnership at 195 Strand - 'Books Sold Cheap' - undercutting competitors - Also conducts pamphlet campaign against lawfulness of competitors' activities and is himself defendant in multiple actions in Chancery - Pamphlet attacks on Millar v Taylor - Continues to be active in Edinburgh as well, acting as literary patron to aspirant authors like James Boswell (biographer of Dr Samuel Johnson) - 1773-dissolution of partnership with brother; Alexander sets up at 48 St Paul's Churchyard Post-Expiry Common Law Right Rejected In Scotland - Hinton v Donaldson 1773 Mor 8307 (fully reported by Boswell) - Thomas Stackhouse (1681/2-1752) - New History of the Bible (first published 1733) - Stackhouse sold rights to publishers 1740; Hinton acquired those rights in 1750s - but had they expired in 1771 (28 years after first registration at Stationer's Hall)? - Donaldson and others reprinting and selling in Scotland - Court of Session rejects Hinton's claim 10-1 (with Kames leading the majority) - no rights in Scots law beyond Statute. See Boswell's report published by Donaldson - But some kind of right pre-publication, albeit not a property right Donaldson v Becket (1774) 4 Burr 2408, 2 Bro PC 129 - James Thomson, The Seasons, again - Donaldson's challenge to Millar v Taylor - Despite Millar v Taylor, Donaldson kept publishing and selling cheap reprints - Chancery grants Becket perpetual injunction against Donaldson - Donaldson appeals to the House of Lords, which seeks the opinion of 12 judges from King's Bench (including Mansfield), Common Pleas and Exchequer The Judges' Opinions In Donaldson V Becket - Mansfield remains silent (because he had already given his opinion in Millar v Taylor?) - Only 11 judges reported. They were split. - Scholarly debate and uncertainty as to what the judges' opinions actually said. - But does it matter? They were not deciding the case, merely advising the House of Lords. Effects Of The Lords' Decision - Literary property a matter of statute only - No rights in author or publisher after statutory term expires - Lord Camden - "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 ... All our learning will be locked up in the hands of the Tongsons and the Lintott’s of the age". [Moreover, the booksellers, these "engrosses", would then set upon books whatever price] "their avarice chooses to demand, till the public became as much their slaves, as their own hackney compilers are". [The notion of a right at common law is] "as odious and 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." - Rights in unpublished works (of which the most important example was letters) are not a matter of statutory literary property - Donaldson as one of Schumpeter's creative destructive forces? Reaction in Edinburgh - H Paton (ed), The Lyon in Mourning, or a Collection of Speeches Letters Journals etc Relative to the affairs of Prince Charles Edward Stuart by the Rev Robert Forbes AM, Bishop of Ross and Caithness 1746-1775 (Scottish History Society, Edinburgh 1896) vol 3, 294. • 'Great rejoicings in Edinburgh ... bonfires and illuminations, ordered though by a mob, with drum and two pipes'