OF MICH. LAW LIBRARY,

strong and conclusive evidence of the existence of the Common law right of an owner of "copy" to publish his work perpetually, without any restriction whatsoever.

So universal were these customs, that it might have been expected, that a Court of law would recognise this Common law right, both before and after publication. This was the opinion of three judges to one, in the famous case of Millar v. Taylor,1 and of eight judges to four in the even more famous case of Donaldson v. Beckett.2

The lapse of the Licensing Act cast authors and proprietors of copies into the slough of despond. Its provisions they had supported with impatience and relinquished with reluctance. Instead of being able to impose penalties for infringement, to seize and burn copies which had been pirated, they were left to their Common law remedy, i. e., an action of " trespass on the case." They were compelled to sue for the actual pecuniary damage they had sustained. Authors and booksellers were in arms. In the year 1703, and again in 1706 and 1709, they petitioned Parliament for a Bill to protect them against what they pathetically called, Ruin." They said that, "At Common law a bookseller can recover no more costs than he can prove damages; but it is impossible for him to prove the tenth or hundredth part of the damage he suffers, because a thousand different copies may be dispersed into as many different lands, and he is not able to prove the sale of ten; the defendant is always a pauper," and they therefore prayed "that the confiscation of counterfeit copies might be one of the penalties imposed on offenders."

The petitions resulted in the notorious Statute of Anne,3 the first Copyright law that the world had known. It said, an author and his assigns should have the sole right of printing new books for fourteen years, and, if at the end of that time, the author should still be alive, he was to have 1 [1769], 4 Burr. 2303. 2 [1774], 4 Burr. 2408. 8 [1709], 8 Anne, c. 19.

the right for another fourteen years. In the case of books already existing there was to be but one term, viz., twentyone years from August 10th, 1710.

This enactment was destined to become the parent of one of the greatest and bitterest controversies known to English law. Ill-considered, ill-drawn, destroying the very property it was intended to protect, this perfidious measure, "rigged with curses dark," ruined the whole case of the British author.

Prior to this, events in general had been for, and not against, the author. But alas! as a writer upon Copyright says, "how annoying, how distressing, to have evolution. artificially arrested, and so interesting a question stifled by an ignorant Legislature, set in motion not by an irate populace clamouring for cheap books, (as a generation later they were to clamour for cheap gin), but by the authors and their proprietors, the booksellers." The booksellers hastened to remonstrate. They said that they had paid authors large sums of money, to have the perpetual right of publishing their books. This was naturally doubted. A bookseller

paying for prosperity, would, indeed, be a singular phenomenon. The tradition is, that the Bill was originally drafted by Dean Swift (who we remember from his Memoirs relating to the change in Queen Anne's Ministry, and also his letters to Stella, was frequently present at Cabinet meetings), solely in the interests of authors and booksellers.

Too much calumny has already been hurled at the head of the fiery Dean for us to wholly believe in this tradition. Let us, if possible, acquit the author of The Battle of Books of this. The Act imposed the desired penalties, and it was thought that the times mentioned in the Act merely meant that the imposition of such penalties was only to exist for the periods named, by way of experiment. The authors generally believed that the Statute did not interfere with their Common law right, to publish in perpetuity their literary property.

They were soon to be undeceived. Peace reigned in the author's land for the space of twenty-one years. Books already published had that period allowed them. Then commenced the thirty years' war. It was a splendid fight. Big lawyers, big fees. The booksellers versus the pirates. The whole question resolved itself into this :-" Did the Common law right of an author or bookseller to publish his literary property in perpetuity, survive the time limitations imposed by the Statute of Anne?"

This was the question around which there raged one of the fiercest storms in the annals of legal history.

In the year 1735, the case of Eyre v. Walker1 was decided by Sir Joseph Jekyll. Mr. Eyre sought an injunction to restrain the defendant Walker from publishing editions of that old, but well-remembered book, The Whole Duty of Man. An injunction was granted. This was equivalent to saying that the Common law had survived the Statute, or, in other words, that an author had in spite of the Act a right to publish his works perpetually, and to restrain a piracy even after the Statutory limitation had expired. In the same year, in the case of Motte v. Falkner, the defendant was restrained from printing Pope's and Swift's Miscellanies, published in the years 1701, 1702 and 1708 respectively, and thus outside the Statutory term. Then followed the case of Tonson v. Walker,3 in which the defendant was restrained from pirating Paradise Lost.

Things looked well for the authors. Next came the celebrated case of Millar v. Taylor. The poet Thomson had sold The Seasons to one named Millar. Taylor, the defendant, pirated the poem, and Millar sought an injunction to restrain him. It was held, by three judges to one, that the Common law right was not taken away by the Statute of Anne, and thus the defendant was restrained.

So far Equity had smiled on the Common law. The 8 [1752] 3 Swans. 672.

4

Burr. 2325.

2 Ibid.

universal opinion had hitherto been entirely in favour of the Common law right of the author. Decisions to this effect had been delivered by the ablest judges on the Bench.

Then came an appeal to the House of Lords in the case of Donaldson v. Beckett. A perpetual injunction had been granted against the defendant in the year 1774. It was held, that, even if there had been a right to perpetuity in literary property at Common law, it was destroyed by the Statute of Anne, and, that any proprietor of copyright had the exclusive right of multiplication only during the periods of time allowed by the Statute.

Thus was the perpetual ownership of authors in their literary productions swept away. All the previous privileges counted for nothing. To some extent, authors were indebted to Lord Camden for this decision of the House of Lords. He, it was, who moved the House to give judgment for the appellant and against the Common law right. His Lordship, who was not an author, although his aspirations may have turned in that direction, became exceedingly wrathful at the thought of pecuniary gain resulting from literature. "It was not for gain," says he, "that Bacon, Newton, Milton and Locke instructed the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of letterpress. When the bookseller offered Milton five pounds for his Paradise Lost he did not reject it and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour. He knew that the real price of his work was immortality, and that posterity would pay for it."1

What could the Peers do against such eloquence as this? Had Mr. Serjeant Talfourd, who was later to become the authors' friend and the booksellers' benefactor, been a member of the House of Lords at this time, events might have had a different ending; at any rate, the case for the authors and booksellers would have worn a different aspect.

1 17 Cobbett, Parl. Hist., 1000.

Lord Camden totally disregarded the bye-laws, proclamations, entries and assignments, as forming the basis of a Common law right. He stated, truly, that there was no judicial decision expressly creating a Common law right; but to have laid aside the almost conclusive evidence of such right as unimportant appears to be strangely inconclusive. However, so it was, and authors grieved afresh.

In the year 1775 the universities, alarmed at the decision, obtained an Act granting them perpetual copyright in books given to them for the advancement of learning and education.1

In the year 1814 an Act was passed, which extended the periods of monopoly allowed by the Statute of Anne. It enacted, that authors should have the sole liberty of printing and reprinting their works for twenty-eight years to commence from the day of publication; and further, that if the author should be living at the expiration of that period, for the residue of his natural life.

The year 1842 saw the Copyright Act passed, upon which the law of literary copyright now depends. For many reasons the time could not have been more propitious for extending the periods of copyright. Many of the members of Parliament were impressed by the petitions they had received. They naturally would think of Scott, who, just at the time when he was about to reap the reward of his early and most successful novels, died, leaving his family in great financial difficulty, for his copyrights had expired. They would think of Wordsworth, who just at the time when his poems were becoming popular, found that they belonged to everyone, as well as to himself. They would think of Southey, who constantly found himself ill at ease in the presence of his creditors, and whose literary career was known to have been much altered by his pecuniary needs, which arose owing to the shortness of his 1 15 Geo. III, c. 53. 2 54 Geo. III, c. 156. 5 & 6 Vict., c. 45.