Donaldson v Becket

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 British House of Lords that held that copyright in published works was not perpetual but was subject to statutory limits. Some scholars disagree on the reasoning behind the decision.

Name

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. Firstly, Becket overwhelmingly spelled his surname t, not tt. Secondly, 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, but sometimes in the text of the proceedings used 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.

Facts

right|thumb|Photograph of Frontispiece – [[The Seasons (Thomson poem)|The Seasons by James Thomson Published by Alexander Donaldson]]

right|thumb|Statute of Anne

The first recognizably modern copyright statute was the Statute of Anne (8 Ann. c. 21) (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—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.

Proceedings

Argument

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 elder 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:

Questions

The practice of the House of Lords at the time when considering a challenging case was to ask the twelve judges of the King's Bench, Common Pleas, and the Exchequer for their expert views on particular issues identified, for the consideration of the House. This would then be followed by a debate, and then a vote of the full house.

On 9 February, Lord Apsley, the Lord High Chancellor of Great Britain, formulated three questions for the judges:

At the instigation of Lord Camden, two further questions were also put: the balance of their opinions were:

:* Eight answers to three, supporting authors' right of first publication at common law and right of action against publication without consent

:* Seven answers to four, against the authors' rights at common law being taken away by first publication

:* Six answers to five, supporting that authors' rights at common law in published works were superseded by the statute

:* Seven answers to four, supporting that, at common law, authors had sole right of publication, in perpetuity

:* Six answers to five, supporting that this right was circumscribed by the statute

For a time in the late 20th century, some scholars believed that the tally in the journal for the crucial third question was incorrect, and that a majority of the judges had opined that a common-law copyright was not "taken away" by the statute; but that their views had been rejected by the full House of Lords. in light of a review of a wider range of documents, that the journal reported the positions of the judges correctly, as did law reports based on it; and that it was the reporting of the view of Justice George Nares in various works based ultimately on an account by William Woodfall in The Morning Chronicle that was incorrect.

The balance of opinions on the first question has sometimes traditionally been represented as ten-to-one; however according to the tallies while both Barons Perrott and Adams accepted that an author should have the sole right of printing or publishing a book or literary composition, they rejected the second half of the proposition, advising that an author should only be able to bring an action against someone who printed, published or sold it if they had obtained the copy by fraud or violence. A report in Hansard of Perrott's detailed reasons he makes clear that in his view the author's right at common law extended only to the physical copy, not to the content within it.

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. This notably was also 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."

Nevertheless, it became common for observers in the late eighteenth century and beyond to read Donaldson, sometimes in combination with Millar, as persuasive authority 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. though it appears that only one of them continues to advocate this view.

Donaldson v Becket

Name

Facts

Proceedings

Argument

Questions

See also

Notes

References

External links