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Common law copyright

[1] Common law copyright is the legal doctrine which contends that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright).

The doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1774) and the United States (Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.

The ruling in the United States of Wheaton v. Peters and, in fact, the entire United States copy ritual was declared insufficient by statutes. The common law rights of a person were authorized to be protected by statute when other laws were insufficient. This flies in the face of the Copyright_Clause authorizing Congress to secure exclusive rights for authors and inventors "for a time" though this was not done. The time is not perpetual but for the life of the author plus seventy years as is consistent with international law.

Contents

Battle of the booksellers

Until the enactment of the Statute of Anne publishers could pass on their royal grants of copyright to their heirs in perpetuity.[2] 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 starting 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).[3]

When Donaldson v Beckett reached the House of Lords in 1774 only one Lord, Thomas 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 "[t]his perpetuity now contended for is as odious and as selfish as any other, it deserves as much reprobation, and will become as intolerable. Knowledge and science are not things to be bound in such cobweb chains."[4] The House of Lords rejected common law copyright.[5]

The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it" (Lord Chief Justice De Grey), but that prior to the Statute of Anne the right to copy was "founded on patents, privileges, Star Chamber Decrees and the bylaws of the Stationers' Company" (Lord Camden). In any event, they determined, the Statute of Anne superseded any common law rights of the author which may have existed prior to the statute. The previous entry here maintained that the Lords found that "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," quoting Ronan.[6] However, the use of the phrase "natural rights" is not justified by the historical record. Lord Chief Baron Smythe stated that the Statute of Anne was "a compromise between authors and printers contending for a perpetuity, and those who denied them any statute right," but the Lords in no way accepted that such a common law or 'natural' right of the author in perpetuity ever existed or developed. Lord Chief Justice De Grey saw no evidence of any such right in the courts in the 300 years since the invention of the printing press and charged that "the idea of a common-law right [of the author] in perpetuity was not taken up till after that failure in procuring a new statute for an enlargement of the term."[7]

According to Patterson and Livingston there remains confusion about the nature of copyright ever since the Donaldson case. 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.[8]

Wheaton v. Peters

Main article: Wheaton v. Peters

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.[9]

Civil Action for Deprivation of Rights

This action by ongress allows common law copy rights to exist due to the failure of the Copy[rite] Act to protect these human rights for a time.

"deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..." This law creates an action at law for depriving of any right secured by the Constitution." [10]

Proceedings in vindication of civil rights

This section authorizes common law specifically by statute as was suggested in Wheaten v Peters.

"...but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause,..." [11]


Other uses

Common law copyright is also the term used in the United States to refer to most state law copyright claims. In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102 (Subject matter of copyright: In general) or Section 103 (Subject matter of copyright: Compilations and derivative works) except for sound recordings fixed before February 15, 1972.[12] This leaves a sizable amount of work that still falls under a mixture of state statutes and common law copyright.[13]

See also

  • Copyright Act of 1909
  • Gyles v Wilcox

References

  1. ^ "42 USC § 1983 - Civil action for deprivation of rights". Retrieved 14 February 2013. 
  2. ^ McGreal, Rory (2004). Stealing the Goose: Copyright and learning. The International Review of Research in Open and Distance Learning. 
  3. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 14. ISBN 978-1-84542-282-0. 
  4. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 19. ISBN 978-1-84542-282-0. 
  5. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 20. ISBN 978-1-84542-282-0. 
  6. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 24. ISBN 978-1-84542-282-0. 
  7. ^ "The History of Copyright: Donaldson v. Beckett". Copyrighthistory.com. Retrieved 2012-07-18. 
  8. ^ Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. pp. 34–35. ISBN 978-0-387-94832-4. 
  9. ^ Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 143. ISBN 978-0-275-98883-8. 
  10. ^ "42 USC § 1983". Civil Action for Deprivation of Rights. Retrieved 14 February 2013. 
  11. ^ "42 USC § 1988". Proceedings in vindication of civil rights. Retrieved 14 February 2013. 
  12. ^ 17 U.S.C. § 301(c)
  13. ^ "Protection for Pre-1972 Sound Recordings". Retrieved 2010-06-25. 
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