The First Aussie Copyright Case: Not

Entire forests have lost their lives in the service of scholarly discussions about the British Battle of the Booksellers: the efforts of booksellers to obtain perpetual copyright after the passage of the Statute of Anne, a battle whose high points are the 1769 decision of the King’s Bench in Millar v. Taylor and the 1774 decision of the House of Lords in Donaldson v. Becket. Fewer trees, but some, have been spent on the similar 1834 decision of the U.S. Supreme Court in Wheaton v. Peters.

But what about Australia, you ask? Well, Professor Mark Leeming of the University of Sydney has kindly shared his research on ssrn, in an article called ”Hawkesworth’s Voyages: the first ‘Australian copyright litigation,” available here. A more recent article of his, “Common Law Within Three Federations,” a comparative look at the different ways in which common law has developed in Australia, Canada, and the U.S. is also on ssrn here:

The reason for the quotes around ‘Australia’ are not spelled out, perhaps because they needn’t be; as explained by Wikipedia:

The Australian mainland has been inhabited for more than 42,000 years by Indigenous Australians. After sporadic visits by fishermen from the north and by Dutch explorers and merchants starting in the 17th century, the eastern half of Australia was claimed by the British in 1770 and initially settled through penal transportation as part of the colony of New South Wales, commencing on 26 January 1788. As the population grew and new areas were explored, another five largely self-governing Crown Colonies were established during the 19th century. In other words, in the period covered by Professor Leeming’s article, if there were trials in Australia, they weren’t going to be about copyright law. So what’s the Aussie connection? The connection is Captain James Cook’s first voyage to the Antipodes in 1768-1771; again from Wikipedia: In 1766, the Royal Society hired Cook to travel to the Pacific Ocean to observe and record the transit of Venus across the Sun. He sailed from England in 1768, rounded Cape Horn and continued westward across the Pacific to arrive at Tahiti on April 13, 1769, where the observations were to be made. However, the result of the observations were not as conclusive or accurate as had been hoped. Cook later mapped the complete New Zealand coastline, making only some minor errors. He then sailed west, reaching the south-eastern coast of the Australian continent on 19 April 1770, and in doing so his expedition became the first recorded Europeans to have encountered its eastern coastline. On 23 April he made his first recorded contact with Aborigines at Brush Island near Bawley Point, noting in his journal "four or five ... Indians ... naked and very black". On April 29 Cook and crew made their first landfall on the mainland of the continent at a place now known as Kurnell, which he named Botany Bay after the unique specimens retrieved by the botanists Joseph Banks, Daniel Solander and Herman Spöring. He continued northwards, and a mishap occurred when Endeavour ran aground on a shoal of the Great Barrier Reef, on June 11. The ship was seriously damaged and his voyage was delayed almost seven weeks while repairs were carried out on the beach (near the docks of modern Cooktown, at the mouth of the Endeavour River). Once repairs were complete the voyage continued, sailing through Torres Strait and on 22 August he landed on Possession Island, where he claimed the entire coastline he had just explored as British territory. He returned to England via the Cape of Good Hope and Saint Helena, arriving on 12 July 1771. Cook's journals were published upon his return, and he became something of a hero among the scientific community. Among the general public, however, the aristocratic botanist Joseph Banks was a bigger hero. Banks even attempted to take command of Cook's second voyage, but removed himself from the voyage before it began, and Johann Reinhold Forster and his son Georg Forster were taken on as scientists for the voyage. Cook's son George was born five days before he left for his second voyage. What, you might be asking does this have to do with copyright? Here is where Professor Leeming’s article kicks in, although all the litigation is in the London courts and among residents of that city, hence the quotation marks around the word Australian. Cook was believed to have been lacking in the literary chops to prepare a suitable account of his remarkable journey. As a result, the Admiralty commissioned Dr. John Hawkesworth, a one-time friend of Samuel Johnson, to write up Cook’s account. Hawkesworth did so, but only after receiving the stupendous advance of 6,000 pounds from the publisher Alexander Strahan. This advance was obviously based on the extreme interest in Cook’s voyage, but it was also given after the King’s Bench held that a perpetual copyright existed in published works, but before the reversal of that decision by the House of Lords. (Cook’s ship the Endeavour had returned to England in July 1771).

There are some wonderful work for hire issues involved in Cooks’s Journal and in Hawkesworth’s published account, called “Hawkesworth’s Voyages.” Banks, the botanist on board the ship, employed draftsmen, one of whom was Sydney Parkinson, who also kept a diary, but who died on the homeward trip. Cook had apparently issued an order that all diaries were to belong to Cook, but Professor Leeming states that this didn’t apply to Parkinson, who was a civilian. Banks was though employed by Cook. In 1772, as a non-employee of Cook's, he paid Parkinson’s brother for the diary, but Parkinson thereafter caused a copy to be made and arranged for it to be published. Hawkesworth acquired Banks’ rights, and sued, but unfortunately he had acquired rights before Banks had acquired rights from Parkinson’s brother, so the suit failed.

For Strahan, things went from bad to worse: the term of copyright was held in Donaldson to be a maximum of 28 years (14+14) and not perpetual; sales were originally excellent: the first edition of 2,000 copies sold out, but a second edition of 2,500 sold only 610. There were complaints about its lengthy patches of poor writing and its high price. Moreover, as Wikipedia adds Hawkesworth’s “descriptions of the manners and customs of the South Seas were …. regarded by many critics as inexact and hurtful to the interests of morality, and the severity of their strictures is said to have hastened his death.”

And then along came Newberry. The case of Strahan v. Newberry is one I came across in 1983 in doing research on a book on fair use, but Professor Leeming’s is the most extensive I have seen. Newberry’s plan was simple and effective: he would cut out the considerable dross from Hawkesworth’s account of Cook’s voyages, combine the accounts of other English explorers, and sell it all for a fraction of Hawkesworth’s. The 1740 opinion in Gyles v. Wilcox had held that even though the Statute of Anne contained no exceptions from the copyright owner’s rights, a fair abridgment was not an infringement, so the question was whether Newberry’s work was. The Master’s report held that it was. The report was adopted by the court, but all we have is a summary of the court’s oral decision by a court report, Lofft. Here is Lofft’s description, which I have quoted in earlier works, but is worth repeating:

The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author's property whereon to ground an injunction. That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in a carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work. That this had been done by Mr. Newbery, whose edition might be read in a fourth of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That [the Lord Chancellor] had consulted Mr. Justice Blackstone whose knowledge and skill in the profession was universally known, and who as an author had done honour to his country. That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr. Newberry's falls within these reasons and descriptions.
Ah, how times have changed.