Rethinking Copyright: History, Theory, Language

This book provides the reader with a critical insight into the history and theory of copyright within contemporary legal and cultural discourse. It exposes as myth the orthodox history of the development of copyright law in eighteenth-century Britain and explores the way in which that myth became entrenched throughout the nineteenth and early twentieth centuries. To this historical analysis are added two theoretical approaches to copyright not otherwise found in mainstream contemporary texts. Rethinking Copyright introduces the reader to copyright through the prism of the public domain before considering how best to locate copyright within the parameters of traditional property discourse. Underpinning these various historical and theoretical strands, the book explores the constitutive power of legal writing and the place of rhetoric in framing and determining contemporary copyright policy and discourse.

What is the Point of Copyright History?:Reflections on Copyright at Common law in 1774 by H. Tomás Gómez-Arostegui

Copyright history has long been a subject of intense and contested enquiry. Historical narratives about the early development of copyright were first prominently mobilised in eighteenth century British legal discourse, during the so-called Battle of the Booksellers between Scottish and London publishers. The two landmark copyright decisions of that time – Millar v. Taylor (1769) and Donaldson v. Becket (1774) – continue to provoke debate today. The orthodox reading of Millar and Donaldson presents copyright as a natural proprietary right at common law inherent in authors. Revisionist accounts dispute that traditional analysis. These conflicting perspectives have, once again, become the subject of critical scrutiny with the publication of Copyright at Common Law in 1774 by Prof Tomas Gomez-Arostegui in 2014, in the Connecticut Law Review ((2014) 47 Conn. L. Rev. 1) and as a CREATe Working Paper (No. 2014/16, 3 November 2014).

Taking Prof Gomez-Arostegui’s extraordinary work in this area as a point of departure, Dr Elena Cooper and Professor Ronan Deazley (then both academics at CREATe) organised an event, held at the University of Glasgow on 26th and 27th March 2015, to consider the interplay between copyright history and contemporary copyright policy. Is Donaldson still relevant, and, if so, why? What justificatory goals are served by historical investigation, and what might be learned from the history of the history of copyright? Does the study of copyright history still have any currency within an evidence-based policy context that is increasingly preoccupied with economic impact analysis?

This paper provides a lasting record of these discussions, including an editorial introduction, written comments by each of the panelists and Prof. Gomez-Arostegui and an edited transcript of the Symposium debate.

What is the Point of Copyright History?

Copyright history has long been a subject of intense and contested enquiry, and has once again become the subject of critical scrutiny with the publication of "Copyright at Common Law in 1774" by Prof Tomas Gomez-Arostegui in the Connecticut Law Review ((2014) 47 Conn. L. Rev. 1).
This online resource documents two events organised to explore the impact of "Copyright at Common Law in 1774". It incorporates a public lecture by Prof Gomez-Arostegui, and the full record of a one-day symposium of international experts debating the implications of Gomez-Arostegui's scholarship in this domain.

On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775)

Taking as its point of departure the lapse of the 1662 Licensing Act in 1695, this book examines the lead up to the passage of the Statute of Anne 1710 and charts the movement of copyright law throughout the eighteenth century, culminating in the House of Lords decision in Donaldson v Becket (1774). The established reading of copyright's development throughout this period, from the 1710 Act to the pronouncement in Donaldson, is that it was transformed from a publisher's right to an author's right; that is, legislation initially designed to regulate the marketplace of the bookseller and publisher evolved into an instrument that functioned to recognise the proprietary inevitability of an author's intellectual labour. The historical narrative which unfolds within this book presents a challenge to that accepted orthodoxy. The traditional analysis of the development of copyright in eighteenth-century Britain is revealed to exhibit the character of long-standing myth, and the centrality of the modern proprietary author as the raison d'etre of the modern copyright regime is displaced.

Photography, copyright, and the South Kensington experiment

Reviews the development of UK copyright law in the 19th century concerning photographs of works of art in public collections. Discusses the project at South Kensington Museum to sell photographs of works of art to the public at cost price, and the introduction of copyright protection for original photographs under the Fine Arts Copyright Act 1862. Considers the parliamentary debates on whether photography was worthy of copyright protection. Examines whether lessons should be learned now that digital technology offers the opportunity to improve public access to works of art.

The Life of an Author: Samuel Egerton Brydges and the Copyright Act 1814

The history of literary copyright in nineteenth century Britain is dominated - understandably perhaps - by a preoccupation with the passing and impact of the Copyright Amendment Act 1842, so ably lobbied for by Sir Thomas Noon Talfourd. This article, however, draws attention away from the 1842 Act towards the Copyright Act 1814, the first legislative provision within British copyright law to introduce a lifetime term of protection for the author. Why and on what basis did the legislature do so?
In bringing a renewed attention to this often overlooked legislative measure, we consider the context and logic that underpinned to grant of a copyright term that was tethered to the life of the author. In doing so, we might also find a useful prism through which to look afresh at current copyright debates concerning the appropriate nature and scope of copyright protection in the 21st century.

Commentary on Copyright Act 1801

Legislation extending the effect of the Statute of Anne 1710 (uk_1710) to Ireland (following the Act of Union 1800 and the unification of Great Britain and Ireland), as well as the first statutory provision to make use of the term ‘copyright'. The commentary assesses the substance of the legislation, its relationship with the King's Bench decision of Beckford v. Hood (uk_1798a), and its impact upon the Irish book trade.

Commentary on Copyright Act 1814

Legislation replacing the Statute of Anne 1710 (uk_1710) and providing that copyright in a literary work would last for twenty-eight years from the time of publication, but that ‘if the author shall be living' at the end of that period then the work was to be protected ‘for the residue of his natural life'.
The commentary explores the background to the legislation, and in particular the controversy over the library deposit provision in the wake of the decision in Beckford v. Hood (1798) (uk_1798a). The commentary suggests that the introduction of the reversionary lifetime copyright term had more to do with the opportunistic and timely intervention of one Member of Parliament (Samuel Egerton Brydges) than with any principled or considered position adopted on the part of the legislature.

Commentary on International Copyright Act 1838

Legislation providing that the British monarch could, by Order in Council, grant copyright protection, within Britain and its Dominions, to the authors of literary works first published abroad for a period specified within the Order but not exceeding the domestic copyright term. The Act provided the first occasion on which the British legislature offered the possibility of copyright protection for the work of foreign authors. Its timing is indicative of the widespread attention which the issue of international copyright had begun to attract in Britain, on the continent, and in the United States. The commentary describes the background to the legislation in relation to British attitudes to the importation of foreign works throughout the sixteenth, seventeenth and eighteenth centuries, and in the context of early nineteenth century debates before the courts as to whether the work of foreign authors was in any event protected under existing legislative measures (see also: uk_1854). The commentary also explores the reasons for the failure of the British government to successfully negotiate any bilateral agreements under the legislation, but nevertheless suggests that the 1838 Act provided an important platform upon which to build a subsequent and more successful regime of international copyright protection (see also: uk_1844; uk_1852; uk_1886).

Commentary on Copyright Amendment Act 1842

The Act providing authors with the first post-mortem term of copyright protection. The term of copyright was to last either for the life of the author plus seven years after his or her death, or for forty-two years from the first publication of the same (whichever was longer). The commentary briefly discusses Thomas Noon Talfourd's repeated attempts to secure such legislation between 1837 and 1841, the opposition he experienced thereto (including Thomas Babington Macaulay's famous speech in the House of Commons on 5 February 1841 against extending the copyright term), and the success which Lord Mahon had in finally securing the Act in 1842.

Commentary on International Copyright Act 1844

Legislation replacing the International Copyright Act 1838 (uk_1838) and providing that the British monarch could, by Order in Council, grant to foreign authors both copyright protection for works of literature, drama, music and art, as well as performance rights for dramatic pieces and musical compositions. The document contains the following associated material: Bill to amend Law relating to International Copyright 1844 (uk_1844a).
This Act addressed perceived inadequacies of the International Copyright Act 1838 (uk_1838) by expanding upon both the subject-matter and the nature of the rights that might be included in a reciprocal copyright arrangement with a foreign state. It also specifically linked the protections that foreign authors would enjoy within Britain to existing domestic copyright legislation. Following this legislation Britain successfully negotiated a series of bilateral international copyright treaties the first of which was concluded with Prussia in May 1846.
The commentary locates the Act within existing legislative provisions designed to address the problem of the market for cheap foreign imports of British books. It suggests that, regardless of the existence of stringent measures targeting unlawful foreign imports, the British government regarded a system of international copyright protection as integral in both addressing the import issue and in fostering a more secure overseas market in the interests of the British book trade.

Commentary on International Copyright Act 1852

Legislation introducing the concept of translation rights within British copyright law. The document contains the following associated material: Hansard: 119 (1852): 498-502 (uk_1852a); 121 (1852): 4 (uk_1852b); Anglo-French Copyright Treaty (uk_1851).
Introduced to implement the obligations of the Anglo-French Copyright Convention, agreed in November 1851, this Act provided that the British monarch could, by Order in Council, provide foreign authors with the right to prevent the reproduction and performance of their literary and dramatic works in translation. The Act also introduces the first statutorily defined permitted acts within the UK, and is indicative of the increasing influence that international standards and obligations began to exert upon the content and substance of domestic copyright law.
The commentary locates the Act within the context of the two previous International Copyright Acts (see: uk_1838; uk_1844) and the Anglo-French Convention, highlighting the selective manner in which the British legislature implemented its obligations under the 1851 Convention, in particular in drawing a distinction between the reproduction of political and non-political material, as well as the difficulty that foreign authors experienced in complying with the provisions of the legislation.

Commentary on Fine Arts Copyright Act 1862

Legislation conferring copyright protection on paintings, drawings, and photographs for the life of the author plus a seven year post mortem term. The Act was also innovative in de-coupling the copyright term from the event of publication, in providing artists with a new form of ‘moral rights' protection, and in introducing the concept of "originality" as the standard threshold for copyright protection.
The commentary explores the background to the legislation, and in particular, the international copyright regime, the nature of the art market in eighteenth and early nineteenth centuries, the role of the Society of Artists in lobbying for legislative protection, and the impetus which the International Exhibition provided for securing the same. The commentary also considers how the 1862 Bill, in its earliest incarnation, incorporated elements that would have signalled a radical departure from established copyright norms. In particular, the Bill proposed: that copyright protection should not be contingent upon registration; and that protection should be offered on a universal basis, regardless of an artists' nationality, and regardless of where the work in question was created.

Commentary on Copinger's Law of Copyright (1870)

A landmark treatise on the law of copyright, establishing a body of work that still has great relevance for professionals and academics today.
The commentary situates the publication of the treatise in the context of the emerging trends in legal publishing in the mid- to late nineteenth century. It considers Copinger's theoretical approach to the subject of copyright, and explores the significance of the writings and work of two American jurists George Ticknor Curtis and Justice Joseph Story in shaping Copinger's attitude and approach to the copyright regime.

Commentary on the Royal Commission's Report on Copyright (1878)

The first major governmental review of the national, colonial, and international copyright regime. The commentary explores the background to the Royal Commission and in particular the efforts of the Association for the Protection of the Rights of Authors in lobbying for law reform. The commentary also explores the extent to which debates about free trade and monopoly commended the attention of the Commissioners and provided a challenge to the dominant conception of copyright - that is, copyright as a property right. The Report affirmed that copyright should continue to be regarded as a property right, and acknowledged the need for reform and consolidating legislation. Beyond that, however, the Commissioners were in considerable disagreement as to copyright's purpose and proper scope, with few of the Report's major recommendations receiving the unanimous support of the same.