CHAPTER I

INTRODUCTORY

The history of copyright has been exhaustively dealt with by Mr. Copinger, Mr. Scrutton, and Mr. Drone in their respective treatises on copyright law. I feel that I can add nothing useful to this branch of the subject, and as a detailed account of the evolution of the law of literary and artistic property is of little value to the practitioner except as academic knowledge, I propose merely to pass briefly in review the various epochs through which the author and his publisher have passed in their struggle to obtain from the public what they consider to be the just and adequate remuneration for their labours. For a complete historical introduction to the law of copyright I cannot do better than refer to Mr. Birrell's delightful lectures.[1]

[Sidenote: The Royal Prerogative.]

The first record which we have of any monopoly in the reproduction of literary work is in the exercise of the alleged prerogative of the Crown to control the printing-press. No book whatsoever was allowed to be printed without a licence or grant of monopoly from the Crown. One of the principal objects in the exercise of this prerogative was the prevention of the dissemination of religious doctrines contrary to the accepted faith.

[Sidenote: The Company of Stationers.]

[Sidenote: The Star Chamber.]

Henry VIII. created the Company of Stationers to supervise and control the publication of books. This company made various rules and regulations as to the printing of books, and from them licences could be obtained by an author to print his copy. The Stationers' Company was first incorporated in the reign of Philip and Mary in 1556. The Crown enforced its prerogative and the rules of the Stationers' Company by means of the Court of Star Chamber, which from time to time passed various decrees, and punished offenders by fine and imprisonment.

[Sidenote: The germ of Copyright.]

[Sidenote: Licences.]

By this means the Crown until 1640 exercised an unlimited jurisdiction over the press. In this there was no recognition of a right of property in the author of a work, but merely an enforcement of the royal prerogative to control the press. Incidentally, however, a kind of property sprang up, since the Stationers' Company in granting licences recognised the right of the author or his assignee to his copy. Licences were granted to those who showed that they had a right in the manuscript, and all others were prohibited from infringing the monopoly. An entry in the records of the Stationers' Company in 1562, for instance, enacts "That if it be found any other has a right to any of the copies, then the licence touching such of the copies so belonging to another shall be void."

[Sidenote: The Long Parliament.]

When the Star Chamber was abolished in 1640 the two Houses made an ordinance prohibiting printing unless the book was first licensed and entered in the register of the Stationers' Company, and further prohibiting printing without the consent of the owner.

[Sidenote: Licensing Statute.]

At the Restoration a licensing statute[2] was passed similarly prohibiting printing without licence and without the consent of the owner. The statute finally expired in 1694.

On the expiry of the licensing statute, authors and publishers thought that all protection for literary work was gone, and made strenuous efforts for new legislation. Bills were brought into Parliament in 1703 and 1706, and finally in 1709 the copyright statute of Anne became law.

[Sidenote: 8 Anne, c. 19. The beginning of Statutory Copyright.]

The Act of Anne created for the first time a statutory property in books. The author of any book and his assignee or assigns were given the sole liberty of printing and reprinting such book for the term of fourteen years from publication "and no longer," and if at the end of that period the author was still living, then such right returned to the author for another term of fourteen years. The Act provided that an offender should forfeit pirated copies and sheets to the proprietor of the copyright, who was enjoined to "forthwith damask and make waste paper of them." The Act further imposed a penalty of one penny for every sheet found in the offender's possession, one half of the penalties to go to the Crown and the other half to any person who should sue for the same. The Act made registration in the Register Book of the Company of Stationers before publication a condition precedent to an action for the infringement of any book. A provision was made in this Act for an adjustment of the price of books by complaint to the Archbishop of Canterbury, the Lord Chancellor and others, if booksellers or printers set too high a price upon their publications. Provision was also made for the delivery of nine copies at the warehouse of the Stationers' Company for the use of various libraries.

[Sidenote: 41 Geo. III., ch. 107.]

The Act of Anne was amended in some particulars in 1801 by 41 Geo. III. c. 107. This Act gave the proprietor of the copyright an action of damages against an offender as well as providing forfeiture and penalties.

[Sidenote: 54 Geo. III., ch. 156.]

The Act of Anne was again amended in 1814 by 54 Geo. III. c. 156. This latter statute extended the period of copyright to twenty-eight years certain, and the residue of the author's life thereafter.

[Sidenote: Copyright at Common Law.]

[Sidenote: Injunctions in Chancery.]

After the passing of the statute of Anne those booksellers who were in the habit of purchasing and publishing authors' manuscripts were not satisfied with the limited protection accorded to them by that Act. They discovered, by the aid no doubt of legal advice, that a further protection might be secured by setting up a common law right of literary property which would ensure not merely a paltry term of twenty-eight years, but a perpetual monopoly. The result of this discovery led to half a century of litigation between the authors' booksellers and those other smaller booksellers who contended that they might without licence print those books in which the statutory copyright had expired. At first the authors' men were successful, and from 1735 there is a series of cases in Chancery in which a common law right in published books was undoubtedly recognised and a preliminary injunction granted, notwithstanding that the period of protection given by 8 Anne, c. 19, had expired.[3]

[Sidenote: _Tonson_ v. _Collins_.]

[Sidenote: A collusive action.]

These injunctions appear to have been acquiesced in, and the cases did not proceed to hearing. In 1760, in the case of _Tonson_ v. _Collins_,[4] the great question of common law right was argued at law before Lord Mansfield, C. J. The action was in respect of the _Spectator_, the statutory copyright in which had expired. It was twice argued before Lord Mansfield, who then ordered that it should stand over for further argument before all the twelve judges. No judgment was ever given in the case. Before it could be argued before the whole Court, information reached the judges that the action was collusive, brought for the purpose of obtaining a precedent to support the contention of the authors' men. The Court refused to proceed further with the cause.

[Sidenote: _Osborne_ v. _Donaldson_.]

[Sidenote: _Millar_ v. _Taylor_.]

[Sidenote: _Donaldson_ v. _Beckett_.]

It was not long, however, until the question was again raised. In 1765 Messrs. Osborne & Millar, assignees of the copyright in Thomson's "Seasons," filed their Bills in Chancery against Donaldson, an Edinburgh bookseller, who had, without their authority, reprinted the book after the statutory copyright had expired.[5] A preliminary injunction was obtained, but subsequently dissolved. Lord Chancellor Northington said it was a point of so much difficulty and consequence that he should not determine it at the hearing, but should send it to law for the opinion of the judges. The question therefore again came to law, and, in _Millar_ v. _Taylor_,[6] was argued at great length before Lord Mansfield and Justices Aston, Willis and Yates. The authors' men were victorious. The Court decided (Yates, J., dissenting) that there was copyright at common law, and that the period of protection thereunder was not cut down by the statute of Anne. This great victory, however, afforded but a short-lived triumph to literary men. In 1774, in _Donaldson_ v. _Beckett_,[7] the matter came before the House of Lords on appeal from an order in Chancery, with the result that the decision in _Millar_ v. _Taylor_[8] was overruled. In this case all the judges were consulted. Eleven consulted judges gave their opinion. The questions put to the judges, and the answers given by them, are as follows:

[Sidenote: Opinions of the judges.]

1. Whether at common law an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent?

Eight answered Yes. One answered No. Two answered That an action would only lie if the MS. were taken by fraud or violence.

2. If the author had such right originally did the law take it away upon his printing or publishing such book or literary composition, and might any person afterward reprint and sell for his own benefit such book or literary composition against the will of the author?

Seven answered No. Four answered Yes.

3. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author by the said statute precluded from every remedy except on the foundation of the said statute and on the terms and conditions prescribed thereby?

Six answered Yes. Five answered No.

4. Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity by the common law?

Seven answered Yes. Four answered No.

5. Whether this right is in any way impeached or taken away by the statute of 8th Anne?

Six answered Yes. Five answered No.

[Sidenote: Decision of the House of Lords.]

[Sidenote: Defeat of the Authors' booksellers.]

The House of Lords on a division, which included several lay members of the House, decided by 22 to 11 against the contention that the common law right survived the statute of Anne and was unrestricted by it. So the authors and their champions the booksellers were finally defeated, and had to remain satisfied with the term of protection afforded to them by statute.

[Sidenote: Relief for the Universities.]

The Universities obtained from Parliament statutory relief against the decision in _Donaldson_ v. _Beckett_. In 1775, the Act of 15 Geo. III.