Donaldson v Beckett
|Intellectual property law|
|Sui generis rights|
Donaldson v Beckett (1774) 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257; 17 Cobbett's Parl. Hist. 953 (1813) is the ruling by the United Kingdom House of Lords that denied the continued existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.
The first copyright statute was the Statute of Anne, 8 Anne c. 19 (1710), in which Parliament granted a fourteen-year term for a copyright, renewable once. Parliament also provided a special grandfather clause allowing those works already published to enjoy twenty-one years of protection. When the twenty-one years were up, the booksellers--for copyrights were held by publishers and booksellers, not authors--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 right to ownership of the copyright under the common law. The booksellers arranged a collusive lawsuit, Tonson v Collins, but the courts threw it out. A real lawsuit was brought, Millar v Taylor 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 judgement. (It helped that Lord Mansfield, the chief judge on the case, had previously been counsel to the booksellers.) An appeal was brought to the Lords, but the booksellers, fearing an adverse judgement there, settled.
Donaldson v Beckett 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, which at that time functioned as the United Kingdom's court of final appeal, in February 1774.
Counsel was heard on 4–9 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. Beckett with his older brother, John) could lawfully publish Thomas Stackhouse'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:
[Attorney-General Thurlow] concluded 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.
On 9 February, the twelve Judges of the King's Bench, Common Pleas, and the Exchequer were asked to give their opinions on five questions:
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?
According to Burrow's report of the case, eight of the Judges answered affirmatively, three negatively.
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?
Burrow's report states that the judges answered this question in the negative with a vote of seven to four.
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?"
According to Burrow's report, this question was answered affirmatively, six to five. However, some historians believe that the tallies in Burrow's report are incorrect, and that a majority of the judges held that a common-law copyright was not "taken away" by the statute.
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?"
According to Burrow's report, the judges answered this question affirmatively by seven to four.
5. "Whether this right is any way impeached, restrained, or taken away, by the statute 8th Anne?"
According to Burrow's report, the Judges answered affirmatively six to five.
The judges presented their answers in the period from 15 to 21 February. 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 Lord Effingham, spoke in favour of the motion to reverse the decree, and one, Lord Lyttleton, spoke against the motion.
Lord Camden, in his opinion, 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; 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 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 Lords rejected the notice of a perpetual copyright and held that it had not previously existed before the Statute of Anne and older works fall into the public domain and are available to everyone when the copyright term expires. "Knowledge has no value or use for the solitary owner: to be enjoyed it must be communicated," wrote Camden.
Robert Forbes, Bishop of Ross and Caithness, noted in his journal entry of 26 February 1774, that when news of the Lords' decision in Donaldson v. Beckett 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 bill was defeated in the Lords. In 1834, the United States Supreme Court essentially followed the House of Lords' decision in Donaldson with Wheaton v. Peters, rejecting any perpetual common law copyright in favor of the statutory instrument still in existence today.
Because only a few of the lords spoke and there was confusion over the opinions of the twelve common-law judges, the resulting decision was able to be interpreted as consistent with what some scholars have called "the myth of common-law copyright"—the view that a common law perpetual copyright existed before the Statute of Anne was passed, but was impeached by the statute. Though views similar to this are expressed in some of the common-law judges' advisory opinions, most of the Lords who spoke during the floor debate (such as Lord Camden) clearly believed that no such common-law right had ever existed.
- Copyright law of the United Kingdom
- History of copyright law
- List of leading legal cases in copyright law
- Wheaton v. Peters, U.S. Supreme Court case also addressing the existence of copyright at common law
- The History of Copyright: Donaldson v Beckett
- Ochoa, Tyler & Rose, Mark (2002), The Anti-Monopoly Origins of the Patent and Copyright Clause, Journal of the Patent and Trademark Office Society 49: 675.
- Henry Paton, ed., The Lyon in Mourning or a Collection of Speeches Letters Journals etc. Relative to the Affairs of Prince Charles Edward Stuart by the Rev. Robert Forbes, A.M., Bishop of Ross and Caithness 1746-1775, vol. 3, p. 294, (Edinburgh 1896)
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- Lessig, Lawrence (2004), Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York: Penguin Press, ISBN 1-59420-006-8.
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- Rose, M. (1988), The author as proprietor: Donaldson v. Becket and the genealogy of modern authorship, Representations 23 (1): 51–85, doi:10.1525/rep.19220.127.116.11p0230p.
- Gomez-Arostegui, H.T. (2014), Copyright at Common Law in 1774, Connecticut Law Review 47 (1): 1–57.