Gyles V Wilcox
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''Gyles v Wilcox'' (1740) 26 ER 489 was a decision of the
Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
of EnglandSaunders (1992), 29. that established the doctrine of fair abridgement, which would later evolve into the concept of
fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
. The case was heard and the opinion written by
Philip Yorke, 1st Earl of Hardwicke Philip Yorke, 1st Earl of Hardwicke, (1 December 16906 March 1764) was an English lawyer and politician who served as Lord High Chancellor of Great Britain. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1 ...
, and concerned Fletcher Gyles, a bookseller who had published a copy of Matthew Hale's ''
Pleas of the Crown In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response ...
''. Soon after the initial publication, the publishers Wilcox and Nutt hired a writer named Barrow to abridge the book, and repackaged it as ''Modern Crown Law''. Gyles sued for a stay on the book's publishing, claiming his rights under the
Statute of Anne The Statute of Anne, also known as the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the g ...
had been infringed. The main issues in the case were whether or not abridgements of a work inherently constituted copyright infringement, or whether they could qualify as a separate, new work. Lord Hartwicke ruled that abridgements fell under two categories: "true abridgements" and "coloured shortenings". True abridgements presented a true effort on the part of the editor, and by this effort, constituted a new work which did not infringe upon the
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, education ...
of the original. Leaving it to literary and legal experts to decide, Hartwicke ruled that ''Modern Crown Law'' was not a true abridgement, but merely a duplication intending to circumvent the law. The case set a legal precedent which has shaped
copyright law 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, education ...
to the present day. It established 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 omnipresen ...
doctrine of fair abridgement, which was cited in other cases, ultimately building up to the idea of fair use. The opinion also recognised the author's right to a work through the nature of the labour it took to produce it, shifting copyright away from publishing rights and towards the idea of serving the greater good by encouraging the production of new, useful works.


Facts

Fletcher Gyles, an
English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ide ...
bookseller, had previously published a book entitled ''Matthew Hale's Pleas of the Crown'', for which he had purchased the exclusive publishing rights. Around the same time, publishers Wilcox and Nutt paid a writer named Barrow to abridge the book, circulating it under the title ''Modern Crown Law''. Gyles alleged that ''Modern Crown Law'' was a near verbatim copy of his publication, with only minor alterations, including the translation of
Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
and
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passages into
English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ide ...
and cutting old, obsolete laws.Atkyns (1740), 142. Seeking to protect his printing rights, Gyles sued both Wilcox and Nutt, along with Barrow, for a stay on the publication.


Arguments

The case involved whether Wilcox, Barrow, and Nutt had violated Gyles' publishing rights as defined under the
Statute of Anne The Statute of Anne, also known as the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the g ...
, particularly the section stating that an author, or purchaser of an author's copyrights as Gyles was, "shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of four-teen years."House of Commons (1710), 1.
Philip Yorke, 1st Earl of Hardwicke Philip Yorke, 1st Earl of Hardwicke, (1 December 16906 March 1764) was an English lawyer and politician who served as Lord High Chancellor of Great Britain. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1 ...
presided over and decided the case. Browning, Gyles' attorney, cited a case which had also appeared before Hardwicke, that of ''Read v Hodges''. In that case, a publisher attempted to circumvent the rights of the author of ''Czar Peter the Great'' by including all three volumes in one and cutting several pages.Atkyns (1740), 143. Hardwicke rejected the argument, however, declaring that the former case had been decided merely on a
motion In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and mea ...
, and that he had given his decision and statements without the thought he would have given a normal hearing. Hardwicke further took contention with the
Attorney General for England and Wales His Majesty's Attorney General for England and Wales is one of the law officers of the Crown and the principal legal adviser to sovereign and Government in affairs pertaining to England and Wales. The attorney general maintains the Attorney ...
' assertion that the Statute of Anne provided a publishing monopoly, instead interpreting the act as one meant to promote public education and the public good.Barnardiston (1741), 368. As Hardwicke had decided to interpret the Statute of Anne as for the public good, the main question of the case became which "any such book or books" the act referred to and protected. The defendants argued that his abridgement must be considered separate from the original work published by Gyles. The defendant's lawyers furthered pushed the court to try the case as if the abridgement had been recorded in the
Stationers' Register The Stationers' Register was a record book maintained by the Stationers' Company of London. The company is a trade guild given a royal charter in 1557 to regulate the various professions associated with the publishing industry, including print ...
, an action that would have given Wilcox and Nutt the right to publish their book, and the lawsuit brought against a second, unique book. Therefore, the only question before the court was whether the second book differentiated sufficiently from the first.Barnardiston (1741), 369. Further, the attorneys for the defendants argued that the book was not a direct transcription, but that several chapters had been omitted, while other, original sections had been added to the Wilcox and Nutt publication. They further pointed to the fact that the Gyles' publication consisted of 275 sheets, whereas the abridgement contained only 35 sheets.


Judgment

The opinion, written by Hardwicke, found that a true
abridgement An abridgement (or abridgment) is a condensing or reduction of a book or other creative work into a shorter form while maintaining the unity of the source. The abridgement can be true to the original work in terms of mood and tone, capturing the ...
of a published book may be considered an entirely separate, new work, as the abridgement showed the labour, originality, education, and judgement of the editor.Curtis (2005), 265. This new book did not run the risk of infringing the rights of the author or bookseller who owned the publishing rights. However, Lord Hardwicke drew a distinction between works "fairly made" and those "colourably shortened". Hardwicke refused to compare the books himself to determine whether ''Modern Crown Law'' was indeed a fair abridgement, or to force a judge and jury to sit and hear both books read, instead opting to have two legal experts and a literary master read the books and report the findings to the court. The parties were allowed to choose these examiners, in a way leaving the case to arbitration. After a week in which the parties were given a chance to make amends outside of court, the book in question was ruled a colourable shortening, created only to circumvent the law, and thus was an infringement of Gyles' printing rights. In his decision, Hartwicke went counter to the prevailing view that the Statute of Anne should be interpreted very strictly, proclaiming, "I am quite of a different opinion, and that it ought to receive a liberal construction, for it is far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompense for their pains and labour in such works as may be of use to the learned world."


Consequences

The case established the doctrine of fair abridgement, which allowed that abridgements displaying a fair amount of labour on the part of the editor, and that differed from the original published work in a significant way, could not be copyright violations. This in effect raised the abridger to the level of an author. The decision did not define the exact parameters that would qualify a work as a valid abridgement. This distinction came with a later case involving an abridgement of Hawksworth's ''Voyages'', in a decision written by Lord Chancellor Apsley. This concept of fair abridgement eventually evolved through
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 omnipresen ...
, initiated from ''Gyles v Wilcox'', into the current concept of fair use.Deazley (2008). Hardwicke's decision also added the exercise of personal judgement to the list of admissible defences against the charge of copyright infringement, adding to the growing
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
establishing that British copyright would be based on labour and not on originality. The opinion advanced the position that copyright law should serve the public interest by promoting the creation of new educational and useful works, rather than focusing on publishing rights. The case played a significant role in the development of English copyright law. The
United States federal courts The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
have cited the case as recently as the 1980s.United States Court of Appeals for the Second Circuit (1986).


Notes


References

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