By Bruce D. Epperson

Printing began in England about 1471. In 1557, the Stationer’s Company received a royal charter from Queen Mary. The company performed two important functions. First, it policed its members on behalf of the state, blocking seditious or blasphemous material. Second, it maintained the interests of its own members by prohibiting the poaching of texts. Because setting type, printing sheets, and binding them were so expensive, the Stationer’s Company (essentially a guild) protected its membership through a process called registration. The key act was when a member-printer submitted one copy of the book’s manuscript to be registered with the company. In the event two similar works appeared in bookstores, the one with the earlier registration was presumed to be the true copy until proved otherwise. The procedure was intended to protect printers, not authors, who had few if any rights. This state of affairs was formalized by Parliament in the Press Act of 1662.

But the Press Act fell victim to the turmoil of the English civil war and subsequent restoration. William and Mary allowed it to lapse in 1695. It was replaced with the Statute of Anne of 1710, which established a government-granted copyright of 14 years to the publisher, with a reversion to the author for another fourteen. (Previously published works received a single 21-year term.) Unlike the protections afforded through registration at the Stationer’s Company, government copyright extended only to published works. To receive protection, the author or publisher had to submit a printed copy along with the copyright application. Almost immediately, two questions started to arise: what was the status of a book before it was published, and what was its status after the government copyright lapsed? In a 1769 case, Miller v. Taylor, the Court of King’s Bench determined that a book or other literary work belongs to the author through the common law, and thus for another to plagiarize it before publication was a wrongful act for which the author could seek redress. Strongly implied, but not quite explicitly stated, was the converse of this: once a work’s government-granted copyright expired, it did not become a “gift to the public,” but simply reverted to its underlying, perpetual common-law copyright status.

This latter point wasn’t firmly addressed until February 4, 1774, when eleven members of the House of Lords, sitting as Britain’s supreme court of appeals, heard Donaldson v. Beckett.  Following parliamentary practice, the matters were framed as specific questions of law. First, does an author have a common-law right in his literary work prior to publication? Yes, 8-3. Second, assuming that the Statute of Anne didn’t exist, would the act of publication in itself divest the author of this common-law copyright? No, 7-4. Third, does the copyright given under the Statute of Anne cut off all common-law copyrights, limiting remedies to those terms and conditions permitted in the statute once government protection is extended? Yes, 6-5.

In essence, the Lords determined that statutory copyright was not something added atop common-law copyright, like frosting on a cupcake; instead, it cut off and replaced common-law copyright. When statutory copyright ended, either because of the expiration of term or because the author failed to follow proper registration or renewal procedure, the literary work fell into the public domain, and in the words of one of the Miller v. Taylor judges, “is virtually and necessarily a gift to the public.” Overlooked (because under the circumstances then existing, it was superfluous) was the second opinion: where no statutory copyright regime existed, the act of publication was insufficient, in itself, to revoke common-law copyrights and throw a work into the public domain.

To be continued…