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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.

The doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1784) 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.

While the legislature in the UK could grant a perpetual right — British Parliament has granted perpetual royalties (but not control) in regard to Peter Pan — it is under no obligation to do so and can set a limited term. Conversely, while the United States Congress is prevented by the Copyright Clause from granting a perpetual copyright, the Supreme Court ruled in Eldred v. Ashcroft that limits on copyrights already granted can be extended.

Battle of the booksellers

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).[1]

When Donaldson v Beckett reached the House of Lords in 1774 only one Lord, Lord 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 "Knowledge and science are not things to be bound in such cobweb chains."[2] The House of Lords rejected common law copyright.[3]

It was established that authors had a pre-existing common law copyright over their work and that with the Statute of Anne 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.[4] According to Patterson and Livingston there remains confusion about the nature of copyright ever since. 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.[5]


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.[6]


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). This left only a small swath of works (excluding live performances and works "fixed" or captured in a tangible medium like film or tape) that still fall under state common law copyright.

See also

Copyright Act of 1909

References

  1. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 14. ISBN 9781845422820.
  2. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 19. ISBN 9781845422820.
  3. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 20. ISBN 9781845422820.
  4. ^ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 24. ISBN 9781845422820.
  5. ^ Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. pp. 34–35. ISBN 9780387948324.
  6. ^ Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 143. ISBN 9780275988838.


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