''Donaldson v Becket'' (1774) 2 Brown's Parl. Cases (2d ed.) 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257; 17 Cobbett's Parl. Hist. 953 is the ruling by the
British House of Lords that held that
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
in published works was not perpetual but was subject to statutory limits. Some scholars disagree on the reasoning behind the decision.
Name
The spelling of the chief respondent in the case, Thomas Becket, sometimes appears as Beckett. For those looking to choose one spelling over the other, it would be more correct to use Becket. Firstly, Becket overwhelmingly spelled his surname ''t'', not ''tt''. Secondly, many of the original contemporaneous records in the case also spelled his surname ''Becket''. Those records include the original proceedings of the dispute in the Court of Chancery. Additionally, the manuscript records of the appeal in the House of Lords, including the manuscript minutes and manuscript journal of the House of Lords, caption the case using the spelling ''Becket'', but sometimes in the text of the proceedings used the spelling ''Beckett''. The earliest reports of the case, those prepared by James Burrow in 1776 and Josiah Brown (1st edition) in 1783, also spelled his surname Becket. The "Beckett" variation seems to have gained ground from a decision made in 1803 by T.E. Tomlins, the editor of the second edition of Brown’s report of the case, to change the spelling to ''Beckett'' in the caption and then to a decision made by the clerk of the journals in the House of Lords, when the House printed its manuscript journal in around 1806, to do the same.
Facts
![Statute of anne](https://upload.wikimedia.org/wikipedia/commons/e/ec/Statute_of_anne.jpg)
The first recognizably modern
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
statute was the
Statute of Anne, 8 Anne c. 19 (1710), in which
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
granted a fourteen-year term for a copyright, extendable once for another 14 years if the author was still alive at the expiration of the first term. Parliament also provided a special grandfather clause allowing those works already published before the statute to enjoy twenty-one years of protection. When the twenty-one years were up, the booksellers—for copyrights in published works were usually held and exploited by publishers and booksellers—asked for an extension. Parliament declined to grant it.
Thwarted by Parliament, the booksellers turned to the courts for relief. They attempted to secure a ruling that there was a natural or customary right to ownership of the copyright under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
. The booksellers arranged a
collusive lawsuit
A collusive lawsuit or collusive action is a lawsuit in which the parties to the suit have no actual quarrel with one another, but one sues the other to achieve some result desired by both.
Examples
Constitutional law
For example, if two peop ...
, ''Tonson v Collins'', but the courts threw it out. A second lawsuit was later brought, ''
Millar v Taylor
''Millar v Taylor'' (1769) 4 Burr. 2303, 98 ER 201 is an English court decision that held there is a perpetual common law copyright and that no works ever enter the public domain. It represented a major victory for the bookseller monopolies.
Fac ...
'' 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769), concerning infringement of the copyright on
James Thomson's poem "
The Seasons" by Robert Taylor, and the booksellers won a favourable 3-1 judgment. (
Lord Mansfield
William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland, before moving to Lond ...
, the chief judge on the case, had previously been counsel to the copyright-holding booksellers in various suits filed in the Court of Chancery in the 1730s.
Justice Yates, the dissenting judge in ''Millar v. Taylor'', had himself previously been counsel to the challengers of common-law copyright in ''Tonson v. Collins''.)
''Donaldson v Becket'' was brought regarding the same poem at issue in ''Millar'' and an injunction was granted by the Court of Chancery on the precedent of ''Millar v. Taylor''. An appeal from the Chancery decree was carried to the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
, which at that time functioned as the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
's court of final appeal, in February 1774.
Proceedings
Argument
Counsel was heard on 4, 7–9 February.
Seven months previously, in the case of ''
Hinton v Donaldson'', the Scots Court of Session had ruled that copyright did not exist in the common law of Scotland, so that
Alexander Donaldson (an appellant in ''Donaldson v. Becket'' with his older brother, John) could lawfully publish
Thomas Stackhouse
Thomas Stackhouse (1677–1752) was an English theologian and controversialist.
Life
The son of John Stackhouse (d. 1734), who became rector of Boldon in County Durham, and uncle of John Stackhouse, he was born at Witton-le-Wear where his fat ...
's ''New History of the Holy Bible''. Attorney General Thurlow, speaking for the appellants, referred to the Scottish case in his opening argument to the Lords on 4 February:
ttorney-General Thurlowconcluded his speech with a compliment to his learned coadjutor, and a hope, that as the lords of session in Scotland had freed that country from a monopoly which took its rise from the chimerical idea of the actuality of literary property, their lordships, whom he addressed, would likewise, by a decree of a similar nature, rescue the cause of literature and authorship from the hands of a few monopolizing booksellers.
Questions
The practice of the House of Lords at the time when considering a challenging case was to ask the twelve judges of the King's Bench, Common Pleas, and the Exchequer for their expert views on particular issues identified, for the consideration of the House. This would then be followed by a debate, and then a vote of the full house.
On 9 February,
Lord Apsley, the
Lord High Chancellor of Great Britain
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
, formulated three questions for the judges:
[Deazley, R. (2008]
Commentary on Donaldson v. Becket (1774)
in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer
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?"
2. "If the author had such right originally, did the law take it away upon his printing and 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?
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?"
At the instigation of
Lord Camden
Marquess Camden is a title in the Peerage of the United Kingdom. It was created in 1812 for the politician John Pratt, 2nd Earl Camden. The Pratt family descends from Sir John Pratt, Lord Chief Justice from 1718 to 1725. His third son from hi ...
, two further questions were also put:
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?"
5. "Whether this right is any way impeached, restrained, or taken away, by the statute 8th Anne?"
While the first questions were couched in terms of the rights of the authors, Lord Camden's emphasised the other side of the coin, the issue of a perpetual monopoly.
Answers
The judges presented their views in the period from 15 to 21 February.
According to the journal of the House of Lords, the balance of their opinions were:
:* Eight answers to three, ''supporting'' authors' right of first publication at common law and right of action against publication without consent
:* Seven answers to four, ''against'' the authors' rights at common law being taken away by first publication
:* Six answers to five, ''supporting'' that authors' rights at common law in published works ''were'' superseded by the statute
:* Seven answers to four, ''supporting'' that, at common law, authors had sole right of publication, in perpetuity
:* Six answers to five, ''supporting'' that this right was circumscribed by the statute
For a time in the late 20th century, some scholars believed that the tally in the journal for the crucial third question was incorrect, and that a majority of the judges had opined that a common-law copyright was ''not'' "taken away" by the statute; but that their views had been rejected by the full House of Lords.
[.] However those scholars now appear to acknowledge,
in light of a review of a wider range of documents,
[.] that the journal reported the positions of the judges correctly, as did law reports based on it; and that it was the reporting of the view of Justice
George Nares
Vice-Admiral Sir George Strong Nares (24 April 1831 – 15 January 1915) was a Royal Navy officer and Arctic explorer. He commanded the ''Challenger'' Expedition, and the British Arctic Expedition. He was highly thought of as a leader an ...
in various works based ultimately on an account by
William Woodfall Portrait of Portrait of William Woodfall, in the National Portrait Gallery (4672211).
William Woodfall (baptised 7 February 1745 – 1803) was an English printer, publisher and Parliamentary reporter.
Life
William's father, Henry Woodfall, p ...
in ''
The Morning Chronicle
''The Morning Chronicle'' was a newspaper founded in 1769 in London. It was notable for having been the first steady employer of essayist William Hazlitt as a political reporter and the first steady employer of Charles Dickens as a journalist. It ...
'' that was incorrect.
The balance of opinions on the first question has sometimes traditionally been represented as ten-to-one; however according to the tallies while both Barons Perrott and Adams accepted that an author should have the sole right of printing or publishing a book or literary composition, they rejected the second half of the proposition, advising that an author should only be able to bring an action against someone who printed, published or sold it if they had obtained the copy by fraud or violence. A report in ''Hansard'' of Perrott's detailed reasons he makes clear that in his view the author's right at common law extended only to the physical copy, not to the content within it.
Furthermore, while the Lord Chief Justice
Lord de Grey answered the first question affirmatively, his detailed answer made clear that his position on this related only to the physical manuscript; his views on rights to "more than the materials or the manuscript" were the province of the second question (in which he opined that author's right at common law was indeed extinguished by first publication).
Arguably a true statement of the judges' positions on whether authors had a natural copyright at common law would therefore be seven to four.
A twelfth judge who was entitled to state and give reasons for his answers was
Lord Mansfield
William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland, before moving to Lond ...
. Presumably his views still conformed to his original judgment, in ''Millar v Taylor''. But – to the frustration of some – he did not speak.
Debate and vote
On 22 February the motion was made to reverse the Chancery decree. The Lords then debated, the record showing that five Lords spoke. Four of these, Lord Camden, Lord Chancellor Apsley, the Bishop of Carlisle, and the Earl of Effingham, spoke in favour of the motion to reverse the decree, and one, Lord Lyttleton, spoke against the motion.
Lord Camden, in his speech, was scathing toward the booksellers:
The arguments attempted to be maintained on the side of the respondents, were founded on patents, privileges, Star Chamber decrees, and the bye (sic) laws of the Stationers' Company
The Worshipful Company of Stationers and Newspaper Makers (until 1937 the Worshipful Company of Stationers), usually known as the Stationers' Company, is one of the livery companies of the City of London. The Stationers' Company was formed in ...
; all of them the effects of the grossest tyranny and usurpation; the very last places in which I should have dreamt of finding the least trace of the common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
of this kingdom; and yet, by a variety of subtle reasoning and metaphysical refinements, have they endeavoured to squeeze out the spirit of the common law from premises in which it could not possibly have existence.
In the end, the full House voted to reverse the decree against Donaldson. Thus the House of Lords rejected perpetual copyright in published works and held that they were subject to the durational limits of the Statute of Anne. As a result, published works would fall into the
public domain
The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...
after their copyright terms expired.
It had been thought, for many years, that the House of Lords voted by
division
Division or divider may refer to:
Mathematics
*Division (mathematics), the inverse of multiplication
*Division algorithm, a method for computing the result of mathematical division
Military
*Division (military), a formation typically consisting ...
. But research has demonstrated that the vote in the case was taken by a collective voice vote, and thus without knowing how many Lords voted, their names, or how they each voted.
Significance
Robert Forbes Robert Forbes may refer to:
*Robert Forbes (American football) (1886–1947), American football player and coach
*Robert Forbes (bishop) (1708–1775), Scottish Episcopal bishop of Ross and Caithness
*Robert Bennet Forbes
Captain Robert Bennet F ...
, Bishop of Ross and Caithness, noted in his journal entry of 26 February 1774, that when news of the Lords' decision in ''Donaldson v. Becket'' reached Scotland, there were
great rejoicings in Edinburgh upon victory over literary property; bonfires and illuminations, ordered tho' by a mob, with drum and 2 fifes.
Later that year, UK booksellers sought to extend their statutory copyright to 14 years through the
Booksellers' Bill but, having passed the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
, the bill was defeated in the Lords.
In 1834, the United States Supreme Court also rejected perpetual copyright in ''
Wheaton v. Peters
''Wheaton v. Peters'', 33 U.S. (8 Pet.) 591 (1834), was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a ...
''.
Common-law copyright
The significance of the decision for the doctrine of common-law copyright was (and is) less clear.
As a matter of strict judicial
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, the court had merely established that once a work was published it was governed solely by the durational terms of the Statute of Anne. This was how the holding was stated by Justice
Blackstone, one of the judges whose view had been in favour of perpetual copyright, in his ''
Commentaries on the Laws of England'' (7th edition, 1775).
It is also the general view of scholars of the case today.
This notably was also the view of the case taken by the judges and Law Lords who spoke on the issue in ''Jefferys v. Boosey'', 4 H.L.C. 815, 872, 961 (H.L. 1854). Referring to ''Donaldson'', Lord Brougham stated that "upon the general question of literary property at common law no judgment whatever was pronounced."
Nevertheless, it became common for observers in the late eighteenth century and beyond to read ''Donaldson'', sometimes in combination with ''Millar'', as
persuasive authority
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
predominating in favor of an antecedent common-law right in literary works, both before and after first publication. This viewpoint probably stemmed from the fact that a majority of the judges who had advised the House on the issue—and even a majority of the judges and speaking Lords combined who had advised the House and who spoke on the antecedent right—opined or allowed that an antecedent right did exist.
In recent times, two scholars have argued that the House affirmatively ''rejected'' the notion that a
common law copyright
Common law copyright is the legal doctrine that grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law.
In part, it is based on the contention that copyright is a natural right an ...
existed before the
Statute of Anne,
[.] though it appears that only one of them continues to advocate this view.
Scholars have criticized the sole holdout—who conceded in his principal article on the subject to being "unfamiliar[] with the nuances of 18th century English parliamentary procedure"
—for relying on anachronistic arguments.
See also
*
Copyright law of the United Kingdom
Under the law of United Kingdom, a copyright is an intangible property right subsisting in certain qualifying subject-matter. Copyright law is governed by the Copyright, Designs and Patents Act 1988 (the 1988 Act), as amended from time to time. A ...
*
History of copyright law
History (derived ) is the systematic study and the documentation of the human activity. The time period of event before the invention of writing systems is considered prehistory. "History" is an umbrella term comprising past events as well ...
*
List of leading legal cases in copyright law
The following is a list of cases that deal with issues of concern to copyright in various jurisdictions. Some of these cases are leading English cases as the law of copyright in various Commonwealth jurisdictions developed out of English law while ...
*''
Wheaton v. Peters
''Wheaton v. Peters'', 33 U.S. (8 Pet.) 591 (1834), was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a ...
'', U.S. Supreme Court case also addressing the existence of copyright at common law
Notes
References
*.
*.
*.
External links
* {{cite CommonLII, litigants=Alexander Donaldson and another v Thomas Beckett and others, link=, reporter=ER, year=1774, num=47, volume=1, firstpage=837, parallelcite=2 Bro PC 129, date=22 February 1774, courtname=, juris=
House of Lords cases
1774 in case law
James Boswell
United Kingdom copyright case law
1774 in British law
History of copyright law