Copyright law had many sparks such as the 561 copyright case which sparked a war in Ireland.

In medieval England, copyright law was not an issue. Literacy was so rare that copyright issues were unheard of and no concern to law makers.

The Crown did exercise its right from time to time to ban certain books, usually through its judicial vehicle of the Star Chamber.

In Millar v Taylor, an unbelievably long 1794 English case, quaintly noting that "Millar died the morning after the hearing", the Court recalled this:

"The name copy of a book, which has been used for ages, as a term to signify the sole right of printing, publishing and selling, shews this species of property to have been long known....

"Till the year 1640, the Crown exercised an unlimited authority over the press, which was enforced by the summary powers of search, confiscation and imprisonment..., all over the realm and the dominions thereunto belonging, and by the then supreme jurisdiction of the Star Chamber, without the least obstruction from Westminster Hall, or the parliament, in any instance....

"It has all along been expressly admitted that, by the common law, an author is entitled to the copy of his own work until it has been once printed and published by his authority.

"The property in the copy ... is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression."

Elizabeth I and copyrightThat case also suggested that the civil injury occurs when another prints without the author's consent.

In France, copyright was also controlled by Royal privilege.

Soon enough, as literacy became more prevalent, copyright issues arose. While the civil law recognized a unique legal right embedded in the author of an original work (droit d'auteur), the common law took the simple approach: copyright was property.

The evolution of the Star Chamber's control is described in Copinger:

"In 1566, by a decree of the Star Chamber, it was forbidden ... to print contrary to and ordinance, prohibition or commandment in any of the statutes or laws of the realm.... By another decree, dated June 23, 1585, every book was required to be licensed."

The Star Chamber was abolished in 1662 and finally, in 1710, a Copyright Act which dealt directly with printed materials, and for extending a 21-year copyright on original works.

The statute is referred to using the archaic British system for their statutes: Chapter 19 of the Statutes of Anne, 8th Year of her Reign, and carries the quaint name of:

"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.

"Whereas printers and booksellers and other persons have of late frequently taken the liberty of printing and publishing ... books and writings, without the consent of the authors, to the very great detriment, and too often the ruin of them and their families."

Engravings, paintings and sculpture copyright was recognized in separate statutes such as the Engraving Copyright Act of 1734 and the Prints Copyright Act of 1777, both long repealed.

But other countries took notice of this legal novelty. In 1791, France issued decrees recognizing exclusive performing rights and in 1793, this was extended to writings, music and paintings. In 1835, Germany followed suit.

The United States enacted a copyright law in 1790 called 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.

In Canada, Lower Canada (now Québec) passed a copyright law in 1832.

In England, academics and lecturers eventually received recognition (the Lecturers' Copyright Act 1835). Protection of musical works followed but not by the clear words of the statute, but by adaptation by the courts.

In 1777, John Christian Bach sued a British man who had repackaged and sold some of Bach's sonatas. Bach cried foul and Justice Mansfield agreed:

"The words of the Act of Parliament are very large: books and other writings. It is not confined to language or letters. Music is a science; it may be written and the mode of conveying the ideas is by signs and marks.

"A person may use the copy by playing it but he has no right to rob the author of the profit by multiplying copies and disposing of them to his own use."

In 1814, the English act was amended to extend the protection to 28 years from the date of first publication or the life of the author, whichever was longer.

In 1842, the British legislation was revised once again to include all the cousins of books such as speeches, plays and songs.Publication was defined to include printing and selling of the work or even if distributed for free or if delivered orally, dramatically or in musical form. Employers took copyright in any work produced by their employee.

In 1911, a further revision was made to the British law, abolishing copyright at common law, and making adjustments to the Berne Copyright Convention of 1908.

Finally, within the clear protection of statute, copyright in works existing but as yet unpublished, was recognized and protected.

Around the world, jurisdictions established copyright legislation with some degree of harmonization occurring as a result of, first, the Berne Convention and, later the 1952 Universal Copryight Convention and the 1996 WIPO Copyright Treaty.

REFERENCES:

  • Bach v Longman, 2 Cowp 623 (1777) and 98 ER 1274.
  • Dickens v Hawksley, [1935] 1 Ch. 267
  • Duhaime, Lloyd, Cinderella of the Law
  • Duhaime, Lloyd, 561: The Copyright War
  • Millar v Taylor, 4 Burr 2408 (1794); also at 98 ER 201
  • Skone James, F. E., Copinger and Skone James on Copyright (London: Sweet & Maxwell, 1965), pages 7-8.
  • Sterling, J., World Copyright Law (London: Sweet & Maxwell, 1998), pages 44-53.