Donaldson v Becket, Copyright & The Public Domain

Copyright has not always existed. Shakespeare used to give his actors only the lines of the character they were playing, and the three words before each line, because if he had given them the whole script, they would just sell it to the theatre next door! What we today call the “public domain” didn’t really make much sense, because all immaterial works were in the public domain. So, what changed?

Well, in 1710 the Statute of Anne was passed (also called the Copyright Act, 1709 or 1710). It intended to prevent the unauthorised copying of authors’ work, “to the ruin of them and their families”. To that end, it declared that, from the passing of the law, authors of already published works would have exclusive printing rights for twenty-one years (unless they sold the rights to someone else), and that for any works published after the passing of the law, those rights would be granted for fourteen years, but only if their work was put into “the register-book of the company of stationers, in such manner as hath been usual”.

The statute had one more aspect which is important to our case: it said copyright would “return to the authors [of a work], if they are then living, for another term of fourteen years”, meaning a maximum length of twenty-eight years for newly published works. With this, the public domain is implicitly defined: it is simply the set of all works that have passed the initial fourteen years and, if the author is still living, the additional fourteen years as well.

Donaldson v Becket is essentially the common law confirmation of this statute. Alexander Donaldson, in Edinburgh, sold cheap copies of books whose copyright had expired, to the anger of London booksellers. Samuel Johnson, the author of one of the first English dictionaries, dismissively called him “no better than Robin Hood, who robbed the rich in order to give to the poor.” This reads almost as a compliment now, but Johnson and the booksellers were absolutely irate, and thought that copyright should apply indefinitely.

So, they brought a case against him to the House of Lords. The judges and the lords were asked to consider, essentially, whether there was a right to perpetual copyright in common law, and whether that right was overruled by the Statute of Anne. They ruled that while common law gave a right to authors that they may hold exclusive authority over their published work, the statute did in fact override this, and the right to publish a work in perpetuity no longer existed in England. There was a misreporting about whether or not the judges said that the statute overruled, or was compatible with, common law, and there is still some debate about which one the judges actually meant, but given the outcome of the trial I think overruling is the correct interpretation.

Lord Camden provided the most poignant critique of the booksellers’ views, as he called the supposed common law right “as odious and selfish as any other, it deserves as much reprobation, and will become as intolerable”, and warned that if a perpetual right were granted, “all our learning will be locked up in the hands of the Tonsons and the Lintots of the age” (both famous booksellers that held rights to many important works). The peers, to whom the judgements of the judges were given, agreed that the time-limited rights of the Statute of Anne could and did override any common law right to hold intellectual property in perpetuity. The twenty-eight year limit was a maximum - well, until more recent cases allowed publishers to extend it.

This case should also be put into the context of the “Battle of the Booksellers” which had been ignited by the Statute of Anne. For thirty years before this case, booksellers had been trying in various ways to extend the twenty-eight year limit, but Donaldson v Becket put an end to this, affirming the existence of the public domain, though the exact phrase “public domain” would not be used until the mid-1800s.

The public domain’s importance has been huge - it is the reason anyone can make copies of Jane Austen, or perform Mahler’s symphonies, without having to pay royalties to some firm that has bought up all the rights. Furthermore, the “copyleft” movement, which sprung out of the idea of the public domain, is behind the software that runs this website! So, I have chosen Donaldson v Becket as the case of the week due to its importance in preventing copyright from turning into publishers’ eternal monopoly.