Statute of Anne

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The Statute of Anne came into force in 1710

The Statute of Anne, short title Copyright Act 1709 8 Anne c.19; long title An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned, was the first copyright statute in the Kingdom of Great Britain (thus the United Kingdom, see Copyright law of the United Kingdom). It was enacted in 1709 and entered into force on 10 April 1710. It is generally considered to be the first fully-fledged copyright statute. It is named for Queen Anne, during whose reign it was enacted.

The Statute of Anne is now seen as the origin of copyright law.[1]

Stationers' Company

The Stationers' Company Mark

The origins of copyright law in most European countries lies in efforts by governments to regulate and control the output of printers. The technology of printing was invented and widely established in the 15th and 16th centuries. Before the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying out. Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information. While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period. The licenses could only grant rights to print in the territory of the state that had granted them, but they did usually prohibit the import of foreign printing.[2]

In England the printers, known as stationers, formed a collective organisation, the Stationers' Company. In the 16th century the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers' Company could enter books into the register. This meant that the Stationers' Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland).[2] But the monopoly, granted to the Stationers' Company through the Licensing Act 1662, came to an end when parliament decided to not renew the Act after it lapsed in May 1695.[2][3]

The Statute of Anne

In 1707 the parliaments of England and Scotland were united as a result of the Anglo-Scottish Union. The new parliament was able to change the laws in both countries and an important early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne, after Queen Anne. The act came into force in 1710 and was the first copyright statute. Its full title was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".[2]

Draft bill

The draft bill of the Statute of Anne underwent considerable changes during its passage through the House of Parliament, with the House of Lords making the most significant amendments. The original draft bill was only six clauses long and drew heavily on the Licensing Act 1662. It forbade the printing, reprinting or import of any book which “any author shall hereafter compose or write” or which any bookseller or printer purchased or acquired from the author, subject to financial penalties. The first draft bill also required registration with the Stationers' Company prior to publication, as well as requiring a deposit of the book for the King’s Library and that of Oxford and Cambridge. The draft bill furthermore proposed a system of controlling the cost of books published at “too high or unreasonable” a price. According to the draft bill anyone was free to import and sell any “classics” originally printed “beyond the seas”.[3]

The draft bill’s preamble and first section placed the emphasis on the “copy of a book” as a clearly recognisable form of property, equal in status to any other tangible or estate. The original draft bill did not propose any limits to the term of protection of such property.[3] The preamble of the draft bill was as follows:

In whom the undoubted Property of such Books and Writings, as the Product of their Learning and Labour, remains or of such Persons, to whom such Authors, for good Considerations, have lawfully Transferred their Right and Title therein, is not only a great Discouragement to Learning in general, which in all Civilised Nations ought to receive the greatest Countenance and Encouragement, but is also a Notorious Invasion of the Property of the Rightful Proprietors of such Books and Writings... For preventing therefore such Unjust and Pernicious Practices for the future... and for the Preservation of the Property of the Rightful Owner thereof...[3]

The draft bill’s title and preamble were subject to significant change, both were reduced in length and confined to the “encouragement of learned men to compose and write useful books". In exchange for the continuous production of books, the draft bill was amended to offer the “sole right and liberty of printing”, ie the right to copy or reproduce. The idea of perpetual rights was dropped and a limited copyright term introduced.[3]

Substance of the act

The long title of the Statute of Anne, as passed by parliament, was "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".[4] The coming into force of the Statute of Anne in April 1710 marked a historic moment in the development of copyright law. As the world's first copyright statute it granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print.[3] The 14 year copyright term could be renewed for another 14 if the author was still alive after the first term expired.[5]

The statute determined that the "copy" was the "sole liberty of printing and reprinting" a book and this liberty could be infringed by any person who printed, reprinted or imported the book without consent. Those infringing copyright had to pay a fine of one penny for every sheet of the book, one moiety of which went to the author, the other to the Crown. In today’s terms this was a considerable fine. In addition the book in question was to be destroyed. Leaving in place the existing system of registration, the statute specified that action against infringement could only be brought if the title had been entered in the register at the Stationers' Company before publication.[5] The formal requirements of registration enabled users to locate the owners of copyrighted works. The requirement for copies of published books to be deposited in university libraries ensured that there was public access to copyrighted works.[4]

Authors rights

The statute was the first to recognise the legal right of authorship,[5] but it did not provide a coherent understanding of authorship or authors' rights. While the statute established the author as legal owner, and so providing the basis for the development of authors' copyright, it also provided a 21 year copyright term to books already in print. At the end of the 21 years granted by the statute the concept of literary property was still a booksellers' rather than an author' concern, as most authors continued to sell their works outright to booksellers.[6] Given that the statute primarily intended to encourage public learning and to regulate the book trade, any benefits for authors in the statute were incidental. Throughout the 18th century, at the encouragement of the booksellers, rather than the authors, an understanding emerged that copyright originated in author's rights to the product of his labour. Thus it was argued that the primary purpose of copyright was to protect authors' rights, not the policy goal of encouraging public learning.[7]

Justification for copyright

Compared with the 15 years following the non-renewal of the Stationers' Company's monopoly, when there was no legal protection available to the book trade, the statute provided London booksellers with relative security. Booksellers had lobbied parliament as the statute was drafted and the statute did provide a property in books to bring stability to the book trade. But it also introduced measures designed to ensure that no monopolistic abuse could be established in the book trade.[8]

The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works. It established a pragmatic bargain involving authors, the booksellers and the public.[9] The Statute of Anne ended the old system whereby only literature that met the censorship standards administers by the booksellers could appear in print. The statute furthermore created a public domain for literature, as previously all literature belonged to the booksellers forever.[10]

According to Patterson and Lindberg, the Statute of Anne:

"... transformed the stationers' copyright - which had been used as a device of monopoly and an instrument of censorship - into a trade-regulation concept to promote learning and to curtail the monopoly of publishers... The features of the Statute of Anne that justify the epithet of trade regulation included the limited term of copyright, the availability of copyright to anyone, and the price-control provisions. Copyright, rather than being perpetual, was now limited to a term of fourteen years, with a like renewal term being available only to the author (and only if the author were living at the end of the first term)."[10]

Battle of the booksellers

When the statutory copyright term provided for by the Statute of Anne began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743-1748), the London booksellers turned to common law and started a 30 year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749-1751) and Tonson v. Collins (1761-1762).[11] An anonymous pamphleteer protested against the lobbying of the booksellers for an extension of the copyright term set by the Statute of Anne in 1735, writing:

"I see no reason for granting a further term now, which will not hold as well for granting it again and again, as often as the old ones expire... it will in effect be establishing a perpetual monopoly, a thing deservedly odious in the eye of the law; it will be a great cramp to trade, a discouragement to learning, no benefit to authors, but a general tax on the public; and all this only to increase the private gain of booksellers."[12]

The question of whether copyright term is limited or perpetual is of central importance to the understanding of copyright. The Statute of Anne was primarily legislation to regulate the book trade, intended to separate rights in copies from censorship. While its rationale was not to protect authors, the statute thought to encourage public learning and provide a structure to the book trade that would limit the Stationers' Company's economic monopoly.[13] When Donaldson v Beckett reached the House of Lords in 1774 only one Lord, Lord Lyttelton, spoke in favour of common law copyright. Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "Knowledge and science are not things to be bound in such cobweb chains."[14]

In its ruling the House of Lords established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation.[4] There is however still disagreement over whether the House of Lords affirmed the existence of common law copyright before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright,[15] and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good.[16] According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed as a natural law right of the author as well as the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that it origin exists only through the copyright statute.[17]

Influence on early US copyright law

The Copyright Act of 1790 in the Colombian Centinel, full title "An act for the encouragement of learning by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned"

The Statute of Anne did not apply to the American colonies, although some scholars have asserted otherwise. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tends to encourage genius and to promote useful discoveries." But under the Articles of Confederation, the Continental Congress had no authority to issue copyright, instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years.[18] Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute. Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.[19]

At the Constitutional Convention 1787 both James Madison of Virginia and Charles Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which allows the granting of copyright and patents for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act, the Copyright Act of 1790 granted copyright for a term of "fourteen years from the time of recording the title thereof", with a right of renewal for another fourteen years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.[19]

At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain. In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.[19]

Date

Several monographs on copyright date the text to 1709. However, due to changes in the reckoning of the New Year from March to January, the correct year of enactment according to the modern calendar would be 1710.[20][21] See also Calendar (New Style) Act 1750.

References

  1. ^ Brad, Sherman (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. p. 207. ISBN 9780521563635. Unknown parameter |coauthors= ignored (|author= suggested) (help)
  2. ^ a b c d MacQueen, Hector L (2007). Contemporary Intellectual Property: Law and Policy. Oxford University Press. p. 34. ISBN 9780199263394. Unknown parameter |coauthors= ignored (|author= suggested) (help)
  3. ^ a b c d e f Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 13. ISBN 9781845422820.
  4. ^ a b c Rimmer, Matthew (2007). Digital copyright and the consumer revolution: hands off my iPod. Edward Elgar Publishing. p. 4. ISBN 9781845429485.
  5. ^ a b c Bainbridge, David I (2006). Intellectual Property. Pearson Education. p. 30. ISBN 9781405801591.
  6. ^ Marshall, Lee (2006). Bootlegging: romanticism and copyright in the music industry. Sage. p. 12. ISBN 9780761944904.
  7. ^ Marshall, Lee (2006). Bootlegging: romanticism and copyright in the music industry. Sage. pp. 13–14. ISBN 9780761944904.
  8. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 13. ISBN 9781845422820.
  9. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. pp. 13–14. ISBN 9781845422820.
  10. ^ a b Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. p. 34. ISBN 9780387948324.
  11. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 14. ISBN 9781845422820.
  12. ^ Rimmer, Matthew (2007). Digital copyright and the consumer revolution: hands off my iPod. Edward Elgar Publishing. p. 27. ISBN 9781845429485.
  13. ^ Marshall, Lee (2006). Bootlegging: romanticism and copyright in the music industry. Sage. p. 13. ISBN 9780761944904.
  14. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 19. ISBN 9781845422820.
  15. ^ Marshall, Lee (2006). Bootlegging: romanticism and copyright in the music industry. Sage. p. 15. ISBN 9780761944904.
  16. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 24. ISBN 9781845422820.
  17. ^ Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. pp. 34–35. ISBN 9780387948324.
  18. ^ Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 142. ISBN 9780275988838.
  19. ^ a b c Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 143. ISBN 9780275988838.
  20. ^ John Feather, The Book Trade in Politics: The Making of the Copyright Act of 1710, Publishing History, 19(8), 1980, p. 39 (note 3). OCLC 50140799.
  21. ^ Patterson, Lyman Ray (1968). Copyright in Historical Perspective. Vanderbilt University Press. pp. 3 Fn. 3.

See also