Thursday, November 03, 2005

A Vexing Antiquarian Problem

I am vexed by an antiquarian problem involving unpublished works in England that perhaps someone can solve.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law, and if so, whether the common right included (1) a right to prevent the authorized printing and distribution of unpublished manuscripts and (2) a right to prevent a third party from distributing copies of printed copies (either authorized by the authors, or owned by the publisher as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 In other words, whether the pre-1710 common law (if any) covered both unpublished and published works.

Since Anne only protected published works, were unpublished works protected, and if so, how?Whether Donaldson rejected the existence of a common law right for published works or more narrowly held that it had been supplanted by the Statute of Anne, doesn't seem to me an answer to whether there was a common law right for unpublished works, for two reasons:

(1) unpublished works could have been seen as a different property than printed "copies": using the broad term common law to apply to both manuscripts and printed copies could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.

Any thoughts?


Anonymous said...

This is from a piece by Scott D. Hervey, posted, without supporting citations, on the Weintraub Genshlea site:

"Modern copyright law was born in England in the 15thcentury, primarily as a result of thedevelopment of the printing press. At that time it was printers and publishers, not the authors who initially sought to control the right to publish literary works. At the same time, the Crown wanted tomaintain censorship authority over the press. As such, establishing a system to grant exclusive rightsto reproduce printed materials served the government's desire to control and the printers’ desire to limit competition.In the mid 1600s, English law began to recognize an author's natural property right to control thedissemination of a literary creation. Parliament's passage of the Statute of Anne in 1709 broadened the concept of copyright to include the ability of an author to decide whether a literary work would bepublished and disseminated to the public (referred to as the "right of first publication") and, ifdistributed, how the work would be reproduced in the future. The Statute of Anne vested an author or publisher of a literary work with statutory copyright protection for specified time periods — new works received 14 years of copyright protection (with a 14-year term renewal) and previously publishedworks were entitled to 21 years of protection. As America transformed itself from British colonies into independent states and commonwealths, the law makers and the courts looked to colonial common law, derived from English law, as the basis of national law as long as it was consistent with the acts of the colonial legislatures. This included English common-law copyright protection."

Anonymous said...

Since I graduated college with a somewhat worthless degree in English Literature, I know that all early books in England had to go through the Stationer's Company. I just found this website which mentions it as well as other considerations concerning copyright on music and in general.

Anonymous said...

I am working on an article on copyright injunctions, a large part of which consists of an analysis of early copyright-related injunctions in Chancery.

Before 1710, the only cases I have come across (so far) do not deal with true common-law copyright, but instead with cases where a right was granted by letters patent. See, e.g., Company of Stationers Case, 2 Chan. Cas. 66, 22 Eng. Rep. 849 (1681); Anonimous, 1 Vern. 120, 23 Eng. Rep. 357 (1682); Hills v. Universitat. Oxon, 1 Vern. 275, 23 Eng. Rep. 467 (1684).

After 1710, there are cases involving what appear to be unpublished works and common-law copyrights, but it is sometimes difficult to tell from the scant information contained in the reporter’s decisions whether the works involved had previously been published. One of the more famous cases is the Duke of Queensberry v. Shebbeare, 2 Eden 329, 28 Eng. Rep. 924 (1758), in which an injunction was sought to restrain the printing of an unpublished manuscript. Some have argued that this case established that an author has a property right in an unpublished work independent of the statute. I am sure you have also already read Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769). But also take a peek at Macklin v. Richardson, Ambl. 696, 27 Eng. Rep. 451 (1770), and Thompson v. Stanhope, Amb. 737, 27 Eng. Rep. 476 (1774).

Hope this helps answer part of your question.

William Patry said...


Thanks for the comment and research. I look forward to your article, which I would love to see. I have done a lot of research on the origins of the presumption of irreparable harm for preliminary injunctive relief, which is of very recent and of quite dubious paternity.

What was bugging me about the unpublished issue is this. If there was a pre-1710 common law right for unpublished works, e.g., manuscripts, then I would think authors could have prevented the Stationers Company from publishing thier manuscripts without permission, which frequently happens, it seems. If there wasn't such a common law right, how did there get to be one after the Statute of Anne since that act did not touch on unpublished works?

Did Parliament just forget about unpublished works, did it think there was an extant common law right, if not did it think the courts would develop one anyway?

There are no neat and clean answers, all the more so because of the confused voting in Donaldson v. Beckett by the Law Lords. And was that case about both published and unpublished works? If about unpublished works too, why would the Stationers have been arguing for a common law right for unpublished works, since that right could be used against them? Perhaps they were secure enough from a bargaining standpoint that they knew such a right would be worthless and asserting it let them but on thefalse face of looking out for authors' interests.

Anonymous said...

Mr. Patry, your productivity is astonishing: you practice law, you write treatises, you speak at conferences, and you geneate extensive and interesting) blawgs.

Anonymous said...

You've proabaly read it but if not, try Ronan Deazley's 'On the Origin of the Right to Copy' (Hart Publishing: 2004). I've yet to read it but will be doing so shortly.

William Patry said...

Paul G:
Thanks for the reference. I don't know that book but I ordered it right away. And thanks for the compliment Anonymous.

Anonymous said...

"Common law copyright" falsely so-called was, as far as I can make out from the sources, a fiction invented by the booksellers in their campaign to destroy the Act of Anne through litigation.

The common-law right of first publication (RFP) was the detritus of the booksellers' campaign. Despite its origins in hypocrisy, however, it can be rationalized on legitimate grounds. The proverbial manuscript-locked-in-a-drawer is on its face someone's chattel. The owner's right in it is not an author's right, however, but a posessor's right. The RFP, which is on its face an author's right, can maybe be derived by analogy to some sort of "conversion" tort. I leave this line of thought to others with experience in tort law. The RFP might also perhaps be derived as a species of exclusive privilege, somewhat analagous to a right of first refusal. One of Adam Smith's examples of exclusive privileges at common-law (Lectures on Jurisprudence) was the right of the chase: A hunter pursuing the hare had the exclusive right to take her. Another could take her only if the first hunter gave up the chase. Smith then goes on to list copyright as an example of a statutory exclusive privilege.

I prefer to read the present statute as replacing the common-law RFP with a statutory RFP which happens to run for a term identical to that of the statutory copyright. That is, I continue to consider the distinction between publicly-known and privately-known works as important, even if the rest of the world be against me on this point. Of course, one difficulty with our present law is that it considers a number of publicly-known works as legally "unpublished", making the terminology of "published" and "unpublished" less clear than it could be.

Anonymous said...

Bill --

Part of the question here is the question of what methodology you might turn to in order to find an answer to your question. In other words, you seem to want to uncover some historic legal truth about common law copyright, but I wonder if that's akin to trying to get to the truth of a legal concept like substantive due process.

My sense is that, since antiquity, you've got rhetorics of plagiarism suggesting that creative individuals had a property-like interest in their particular creative outputs that went beyond interests in tangible chattels. Hence, at least since Rome, rhetorics of property are deployed in support of author's rights in ways that would resemble a common law copyright (long before we've got the English common law). The interesting turn is in the 16th-17th century, where the practicers of the Stationers leads to the legally reified rights to copy (at least as an emergent trade practice given the imprimatur of the state's authority).

The birth (or non-birth) of common law copyright, I think, might be framed as the question of whether, in the centuries preceding Anne's codification, the English legal system was willing to link the general sense of authorial labor as property to the emergent textual property rights enjoyed within the Stationers' Company. My general sense is that no, that link wasn't legally established in 1710.

However, the possibility you describe as strange might actually be closer to the mark descriptively. With the passage of Anne, it is possible to re-read the pre-history of copyright as the story of the emergence of authorial property rights. Similar English common law property rights have been discovered over time due, in part, to changing social conditions (think of tenant rights against landlord), so its possible that you might discover common law copyright in the shadow of 1710.

But back to my original point -- it isn't clear to me what you'd want, when you've got Donaldson, to settle this issue with any sort of authority. More case law?