I am vexed by an antiquarian problem involving unpublished works in England that perhaps someone can solve. In 1911, the English Parliament abolished all common law copyright; we followed suit in 1976 Act (see earlier posting here). Abolishing rights assumes, probably, that they existed. So, what were common law rights in England before 1911? That's my difficulty.
There are a number of reasons for the difficulty. One is the confused reporting of the votes of the Law Lords in Donaldson v. Beckett in 1774, rejecting the Stationers Company claim that the 1710 Statute of Anne was a mere remedial supplement to common law rights they had and which weren't extinguished, allegedly, by Anne. The confusion is two-fold. I think all agree that the House of Lords (including the full House, not just the Law Lords), held that if there was a common law right in published works, that right was taken away by Anne. Anne, importantly, only protected published works.
The confusion comes from whether the House of Lords also held there was ever a common law, and if so, whether the common right included (1) a right to prevent the authorized printing and distribution of unpublished manuscripts and (2) a right to prevent a third party from distributing copies of printed copies (either authorized by the authors, or owned by the publisher as a result of Stationers' monopoly). In other words, whether the pre-1710 common law (if any) covered both unpublished and published works.
Since Anne only protected published works, were unpublished works protected, and if so, how?Whether Donaldson rejected the existence of a common law right for published works or more narrowly held that it had been supplanted by the Statute of Anne, doesn't seem to me an answer to whether there was a common law right for unpublished works, for two reasons:
(1) unpublished works could have been seen as a different property than printed "copies": using the broad term common law to apply to both manuscripts and printed copies could be eliding important distinctions between the two pre-1710. For example, in the U.S. at least under the 1909 Act, you lost common law by publishing the work, either in an investitive way (gaining federal protection), or divestitively (losing both state and federal protection) where there wasn't a proper notice. Under this view, publication does not change the property right; it either creates a new, statutory right, or it wipes out a different, common law right for the unpublished work. Of course, this distinctly American approach may not reflected conceptual problems in England, but we did inherit the structure from the Brits so our common law judged probably thought they were following their English colleagues.
(2) since Anne didn't apply to unpublished works, one can't tease out of that statute very much if anything about unpublished works: Anne said nothing about unpublished works, meaning either unpublished works weren't protected before Anne and remained unprotected after, or, that unpublished works were protected beforehand and remained so afterwards. I have seen references to a third possibility: that unpublished works weren't protected before Anne, but became protected under the common law as a result of Anne giving protection to published work, as a sort of ancillary necessity. That seems fantastic to me: how could statutory protection for x create common law protection for y. The theory at the least is devoid of any supporting evidence and there is alot of evidence leading up to Anne's adoption.
In the U.S. there were pre-1790 state statutes, at least some of which were repealed when our 1790 Act was passed, and yet, after repeal of the state statutes, the states went ahead and vigorously "applied" common law copyright for almost 200 years. Did the pre-1790 state statutes supplant a preexisting common law that somehow sprang back into existence after repeal of the state statute and even in the face of a federal statute (and note the 1790 federal act did protect manuscripts too). It is possible these statutes continued after the federal statute but my copy of them, from the Copyright Office says, for example re the Connecticut statute "This Act was repealed by Act IX, October session, 1812 of the General Assembly of the State of Connecticut, Book II, October Session, 1812," p. 104." And, even absent a repeal in other statutes, I am unaware of any evidence they continued to do so.