Donaldson v Becket

Parliament also provided a special grandfather clause allowing those works already published before the statute to enjoy twenty-one years of protection.

(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.

Attorney General Thurlow, speaking for the appellants, referred to the Scottish case in his opening argument to the Lords on 4 February: [Attorney-General Thurlow] concluded his speech with a compliment to his learned coadjutor, and a hope, that as the lords of session in Scotland had freed that country from a monopoly which took its rise from the chimerical idea of the actuality of literary property, their lordships, whom he addressed, would likewise, by a decree of a similar nature, rescue the cause of literature and authorship from the hands of a few monopolizing booksellers.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.

While the first questions were couched in terms of the rights of the authors, Lord Camden's emphasised the other side of the coin, the issue of a perpetual monopoly.

The balance of opinions on the first question has sometimes traditionally been represented as ten-to-one;[13] 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.

[6] Furthermore, while the Lord Chief Justice Lord de Grey answered the first question affirmatively, his detailed answer made clear that his position on this related only to the physical manuscript; his views on rights to "more than the materials or the manuscript" were the province of the second question (in which he opined that author's right at common law was indeed extinguished by first publication).

Lord Camden, in his speech, was scathing toward the booksellers: The arguments attempted to be maintained on the side of the respondents, were founded on patents, privileges, Star Chamber decrees, and the bye (sic) laws of the Stationers' Company; all of them the effects of the grossest tyranny and usurpation; the very last places in which I should have dreamt of finding the least trace of the common law of this kingdom; and yet, by a variety of subtle reasoning and metaphysical refinements, have they endeavoured to squeeze out the spirit of the common law from premises in which it could not possibly have existence.In the end, the full House voted to reverse the decree against Donaldson.

Thus the House of Lords rejected perpetual copyright in published works and held that they were subject to the durational limits of the Statute of Anne.

[12]: 23 [10] Robert Forbes, Bishop of Ross and Caithness, noted in his journal entry of 26 February 1774, that when news of the Lords' decision in Donaldson v. Becket reached Scotland, there were great rejoicings in Edinburgh upon victory over literary property; bonfires and illuminations, ordered tho' by a mob, with drum and 2 fifes.

As a matter of strict judicial precedent, the court had merely established that once a work was published it was governed solely by the durational terms of the Statute of Anne.

This was how the holding was stated by Justice Blackstone, one of the judges whose view had been in favour of perpetual copyright, in his Commentaries on the Laws of England (7th edition, 1775).

Referring to Donaldson, Lord Brougham stated that "upon the general question of literary property at common law no judgment whatever was pronounced.

"[12]: 44 [21] 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.

[15] In recent times, two scholars have argued that the House affirmatively rejected the notion that a common law copyright existed before the Statute of Anne,[8][23] though it appears that only one of them continues to advocate this view.

[11] Scholars have criticized the sole holdout—who conceded in his principal article on the subject to being "unfamiliar[] with the nuances of 18th century English parliamentary procedure"[8]—for relying on anachronistic arguments.