Donaldson v Beckett
|Intellectual property and Intellectual rights law|
|Sui generis rights|
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 United Kingdom House of Lords that held that copyright in published works was not perpetual and was instead subject to statutory limits. Some scholars disagree on the reasoning behind the decision.
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. First, Becket overwhelmingly spelled his surname with one “t” not two “tt.” Second, 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," though sometimes in the text of the proceedings they use 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.
The first modern-like copyright statute was the Statute of Anne, 8 Anne c. 19 (1710), in which Parliament 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, 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 or customary 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 second lawsuit was later 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 3-1 judgment. (Lord Mansfield, 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, which at that time functioned as the United Kingdom's court of final appeal, in February 1774.
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'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 the journal of the House of Lords, 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?
The journal states that the judges answered this question in the negative by 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 the Lords' journal, this question was answered affirmatively, six to five. For a time, some scholars believed that the tally in the journal was incorrect, and that a majority of the judges had opined that a common-law copyright was not "taken away" by the statute. But those scholars now appear to acknowledge, in light of newly discovered evidence, that the journal reported this tally correctly.
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 the Lords' journal, 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 the journal, the judges answered affirmatively six to five. As with question three, scholars previously believed that this tally was also incorrectly reported, but the journal tally has since been rehabilitated.
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 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; 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 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 after their copyright terms expired.
It had been thought, for many years, that the House of Lords voted by division. 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.
A few scholars disagree on the reasoning underlying the decision. Two scholars have argued that the House affirmatively rejected the notion that a common law copyright 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. Most scholars who have studied the issue note that the case did not determine whether a copyright at common law predated the Statute. Notably, this was 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."
It became common for observers in the late eighteenth century and beyond to read Donaldson, sometimes in combination with Millar, as 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.
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. Becket reached Scotland, there were
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 also rejected perpetual copyright in Wheaton v. Peters.
- 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
- English Short Title Catalogue
- Burrow, James (1776), Reports of Cases Adjudged in the Court of King's Bench, 4, p. 2408
- Brown, Josiah (1783), Reports of Cases upon Appeals and Writs of Error, in the High Court of Parliament, 7, p. 88
- Brown, Josiah & Tomlins, T.E. (1803), Reports of Cases upon Appeals and Writs of Error, in the High Court of Parliament (2d edition), 2, p. 129
- Commentary on: Hinton v. Donaldson (1773)
- The History of Copyright: Donaldson v Beckett
- Abrams, Howard B. (1983), "The Historic Foundation of American Copyright Law: Exploding the Myth of Common-Law Copyright", Wayne Law Review, 29: 1119.
- Rose, Mark (1988), "The Author as Proprietor: "Donaldson v. Becket" and the Genealogy of Modern Authorship", Representations, 23: 51
- Rose, Mark (March 2016). "Donaldson and the Muse of History". In Cooper, Elena; Deazley, Ronan. What is the Point of Copyright History? (PDF). CREATe. pp. 37–42.
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- Gomez-Arostegui, Tomas (March 2016). "A Reply to my Colleagues Regarding Donaldson v Becket". In Cooper, Elena; Deazley, Ronan. What is the Point of Copyright History? (PDF). CREATe. pp. 45–59.
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- 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)
- Gomez-Arostegui, H.T. (2014), "Copyright at Common Law in 1774", Connecticut Law Review, 47 (1): 1–57.
- Patterson, Lyman Ray (1968), Copyright in Historical Perspective, Nashville: Vanderbilt University Press.
- 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.19184.108.40.206p0230p.
- Alexander Donaldson and another v Thomas Beckett and others (1774) 2 Bro PC 129, 1 ER 837 (22 February 1774)