The 1878 UK Royal Commission Report

The U.S. government has never had a meaningful foundational discussion about the nature of copyright and the means to accomplish desired objectives. It is true that the process of formulating, drafting, and enacting the 1976 U.S. Copyright Act took 21 years, well-documented in a considerable number of roundtable discussions, reports, and testimony unique in the annals of copyright and invaluable in understanding that Act, but the discussions, interesting as they are, focus heavily on how to implement specific aspects of a statute, and not foundational questions.

The United Kingdom is blessed to have had a number of fascinating foundational examinations. The first is popularly called the Battle of the Booksellers, and refers to the period after the 1710 Statute of Anne, when book sellers attempted to convince the courts that the Statute of Anne was supplementary to, and not preemptive of, an alleged perpetual common law. This point was settled (at least as to the preemptive part) by the House of Lords in Donaldson v. Becket (1774) after the contrary decision of the King's Bench in Millar v. Taylor (1769). The debates about the nature of copyright during this period (which began long before the decision in Millar) have been well documented. So too the next examination, when Serjeant Talfourd attempted to extend the term of copyright and to make other, comprehensive reforms, only to be humiliated by Lord Macaulay not once but twice, in 1841 and then again in 1842. These speeches are well-known and a delight to read, regardless of one's position.

But there was another occasion, one less well-known, although thanks to the work of a number of scholars, this next March it should be better known: I refer to the 1878 Report of the Royal Commission on Copyright. The commission has not been a secret, even in the 20th century, numerous references to it were made, including in then Professor Stephen Breyer's 1970 "Uneasy Case for Copyright" article (84 Harv. L. Rev. 289). Professor Breyer also noted something few others did, the presence of substantial dissent from the report. U.S. professor of English Paul Saint-Amour devotes a whole chapter to reviewing the Commission in his 2003 book, "The Copywrights: Intellectual Property and the Literary Imagination." U.K. law professor Catherine Seville has also discussed the commission, most extensively in her 2006 book "The Internationalisation of Copyright Law: Buccaneers and the Black Flag in the Nineteenth Century," about which I blogged here.

Most recently, Irish law professor Ronan Deazley whose dazzling prior books "On the Origin of the Right to Copy" (2004)(available here) and "Rethinking Copyright" (2006)(available here) should be on everyone's shelves, has drafted an as-yet unpublished essay on the Royal Commission, to be available in March in connection with an amazing project to make primary historical source material available online. (More on that in March).

The Commission was the result of lobbying efforts by the Association for the Protection of the Rights of Authors. Prime Minister D'Israeli did what many government officials do when handed a hot potato: he passed it along to a commission, comprised of sitting and former government officials, lawyers, historians, a publisher, and an author (Anthony Trollope). From May 1876 to May 1877, the commission heard from almost 50 witnesses; they took a year to release their 800 page report, with appendices and dissents.

As Professor Deazley notes, only 5 of the 15 commissioners signed the report without reservation; a majority of 9 signed with either a dissent or other comment; Sir Louis Mallet refused to sign the report at all, and instead wrote his own ten page dissent. As Professor Deazley observes, "[a]lthough the Report recommended that copyright continue to be treated 'as a proprietary right,' it said little else to clarify what that actually meant. Indeed as Feather correctly observes, in this regard, 'the Commissioners made no serious attempt to define copyright, even though they themselves rightly noted that the confusion in the law, and argued that it arose, in large part, from the very lack of definition,'" (quoting Feather, Publishing, Piracy and Politics: an Historical Study of Copyright in Britain 187 (1994)).

Professor Deazley writes that "Perhaps the most profound point of disagreement that lies at the heart of the Report concerned the very nature and function of copyright itself, set against a backdrop of arguments about free trade and protectionism." This last point is fascinating indeed. Mallet and some others were followers of Richard Cobden, a co-founder of the Anti-Corn Law League. To Cobden's followers like Mallet, the concept of copyright as a property right was false, resting an economic fallacy, "the misconception of the nature of the law of value." What makes this fascinating to contemporary readers, I believe, is the absolute brilliance of content owners in turning intellectual property into an engine of free trade, principally in the GATT TRIPS agreement, and in subsequent FTAs. This amazing feat, insisting that strong monopoly power be set as an international norm is, to say the least, not obvious. How the feat was accomplished is detailed in a 2003 book by Susan Sell, "Private Power, Public Law: The Globalization of Intellectual Property Rights," (available here).

The 1878 Royal commission's report is, therefore, an interesting read for how trade and copyright were previously perceived, as well as for a reminder that the nature and function of copyright, far from being received wisdom, has always been contested. No one in 1878 called for its abolition, and rightly not. But the existence of some level of protection for authors is far different from an agreement about the scope of the protection; most importantly, the 1878 report is a reminder that foundational arguments about the nature of copyright matter.