Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1741

Commentary on Gyles v. Wilcox (1741)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Gyles v. Wilcox (1741)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Defoe, ‘Press-Piracy', and the Rise of the Magazine Format

4. Samuel Johnson and the ‘Right to Abridge'

5. The concept of ‘fair abridgement'

6. Reading Gyles v. Wilcox (1741)

7. Re-reading Gyles v. Wilcox (1741)

8. References

1. Full title
Gyles v. Wilcox, Barrow, and Nutt (1741) 2 Atk. 141

2. Abstract
Case in which Lord Hardwicke introduces the concept of the ‘fair abridgement', and which is generally regarded as the forerunner to the broader doctrine of ‘fair use' developed in the courts throughout the nineteenth century. The document includes two different reports of the decision, as well as an essay by Samuel Johnson on the right to abridge an author's work.

The commentary describes the background to the case, in particular the nature of periodical publication throughout the eighteenth century, the rise of the magazine format in the 1730s, as well as relevant case-law both prior to, and following, the decision. The commentary suggests that while the decision in Gyles can be understood as one guided by public interest arguments similar to those informing the rationale behind the Statute of Anne 1710 (that is, the encouragement of learning and production of useful books) (uk_1710), it can equally be regarded as one in which the court, in effect, expanded the rights of the copyright owner beyond the protections provided by the legislation.

3. Defoe, ‘Press-Piracy', and the Rise of the Magazine Format
When Daniel Defoe (1660?-1731) wrote his Essay on the Regulation of the Press at the beginning of 1704, while reserving the most of the tract to lambast the "Arbitrary Breath of Mercenary men", he also, not surprisingly took the opportunity to champion that a law be introduced to prevent "a certain sort of Thieving which is now in full practice in England ... Press-piracy".[1] For Defoe, "press-piracy" came in two guises. The first involved the straightforward act of publication without permission; the second concerned publishing an abridged version of an author's work, again without permission. As to the first, the Statute of Anne 1710 was clear - unauthorised reproductions amounted to an infringement of an author's (or his assigns') copyright in the work. As to the latter, the Act was silent. Indeed, the drafters of the legislation had failed to contemplate the use of a copyright-protected work in any altered, re-presented, or transformed state,[2] as evidenced by one of the first cases to come before the courts in the wake of the 1710 Act - Burnet v. Chetwood (1721). This case concerned an English edition of Dr Thomas Burnet's (c.1635-1715) Latin treatise Archaeologia Philosophica. Merivale, reporting the case nearly one hundred years after it first came to Court, notes that the defendant's argument turned on the fact that "a translation of a book was not within the intent of" the statute.[3] Lord Chancellor Macclesfield (1667-1732) was sympathetic to the argument that a translation of a work was not an infringement within the terms of the 1710 Act; however, he continued that the book contained "strange notions" which should not be made available in the "vulgar" tongue (that is, in English). Rather, he considered it should remain in Latin only "in which language it could not do much hurt, the learned being better able to judge" the work. Asserting that the court had "a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on religion or morality", he granted the plaintiff his injunction.[4]

The issue in Gyles v. Wilcox (1741) concerned, not a translation of a work, but the second of Defoe's piratical bug-bears: the abridged text.[5] There can be no doubt that periodical publication throughout the eighteenth century was an appropriative affair in both substance and method. Edward Cave (1691-1754) is generally credited with ‘inventing' the magazine format in 1731,[6] a new publishing archetype which was designed to provide the reader with "a monthly anthology of all the best essays from the daily and weekly papers, combined with book reviews, translations, short biographies, poetry and readers' correspondence, as well as items of interest to businessmen ... that might affect the course of trade".[7] From its beginnings, his Gentleman's Magazine explicitly represented itself as anthological in nature, designed "not to have a character of its own, but simply to reflect contemporary interests and concerns".[8] The magazine was an instant success, spawning numerous imitative rivals (such as the London Magazine in 1732, the Ladies Magazine in 1749, and the Grand Magazine of Magazines in 1758), which subsequently came to dominate periodical publication in the latter half of the eighteenth century. Cave, with no little irony, continually lambasted these later publications as having plagiarized his particular conceit. In 1738, for example, he wrote of the editors of the London Magazine as "[a] Knot of enterprising Geniuses, and sagacious Inventors, assembled from all Parts of the Town, agreed ... to seize upon our whole Plan".[9] In any event, the Gentleman's Magazine, and its contemporaries, routinely reproduced material, whether in its original or an abridged form, that had first been printed elsewhere,[10] an accepted journalistic practice which had its origins in the newspaper industry that burgeoned throughout the reign of Queen Anne.[11] It was perhaps inevitable that, at some point, this "predatory species of publication"[12] would be subject to legal scrutiny, and not surprisingly Cave was involved.

4. Samuel Johnson and the ‘Right to Abridge'
In Austen v. Cave (1739),[13] the proprietors of Dr Joseph Trapp's (1679-1747) book, The Nature, Folly, Sin and Danger of Being Righteous Over Much, complained that Cave, under the pretence and title of printing an extract of the work, was in fact printing the whole of their work, by instalment, in his Gentleman's Magazine.[14] Lord Hardwicke (1690-1764) granted them an injunction "to restrain the said Defendant ... from printing ... the said Book or any part thereof" until answer,[15] after which Cave entered a joint demurrer and answer in response to Austen's bill of complaint.[16] In his response he denied ever intending to print or reprint Trapp's work, explaining instead that "for several years last past" he had printed in his magazine "short extracts, parts of books, pamphlets or other writings newly published on various subjects" without any "intent to prejudice the proprietors" of the same. Indeed, Cave continued that his publishing of such extracts "have many times if not mostly been agreeable to the proprietors of the books", adding that "the same hath never been complained of by them as being contrary to the said Act, or detrimental to them". As to the extent of his use of the plaintiff's work, he set out that of a work of around sixty-nine pages, he had only drawn upon thirty, and even then "several pages" were "wholly omitted" as well as "great parts of other pages" so that the material used occupied only three and a half pages of his magazine.[17] Such use he considered was never intended to be prevented by the 1710 Act, as to hold otherwise would be "greatly prejudicial to the spread of knowledge and learning".[18] The Lord Chancellor considered the defendant's demurrer to be insufficient, and Cave was given additional time to resubmit his pleadings, however, no such pleadings were ever entered.[19]

Interestingly, Samuel Johnson (1709-1784), then an editor for the Gentleman's Magazine, prepared a commentary upon Cave's abridgement of Trapp's sermons, not surprisingly in defense of his employer, and in support of the notion that any book falling into the hands of any reader "is liable to be examined, confuted, censured, translated, and abridged"; such "liberties", he continued, "cannot be prohibited without manifest disadvantage to the publick".[20] Johnson provided three main arguments in support of this "right to abridging authors", in accordance with reason, the customs of the trade, and the consequences that would flow from preventing the same. As to the first, he argued that:

"The design of an abridgement is, to benefit mankind by facilitating the attainment of knowledge, and by contracting arguments, relations, or descriptions, into a narrow compass; to convey instruction is the easiest method, without fatiguing the attention, burdening the memory, or impairing the health of the student ... By this method the original author becomes, perhaps, of less value, and the proprietor's profits are diminished; but these inconveniences give way to the advantage received by mankind from the easier propagation of knowledge..."[21]

In short, the right to abridge a work was a liberty to be enjoyed for the same reasons as writing itself - "for the discovery and propagation of truth".[22] As to the customs of the trade, observing that "numberless abridgements are to be found of all kinds of writings" which practice in itself afforded evidence "that they were always thought legal", Johnson proffered the examples of Gilbert Burnet's (1690-1726) History of the Reformation,[23] and Clarendon's (1609-1674) History of the Rebellion,[24] both of which had been abridged without the authors "appealing to the Court of Chancery".[25] That the proprietors of these works silently accepted that such abridgements would appear, "when the act of parliament for securing the property of copies was in force", suggested to Johnson nothing other than "they thought an epitome of a book no violation" of their rights.[26] When Johnson finally turned to the consequences of prohibiting such derivative literary endeavours, he might have been quoting from the preamble to the Statute of Anne itself:

"How many useful works will the busy, the indolent, and the less wealthy part of mankind be deprived of? How few will read or purchase forty-four large volumes of the Transactions of the Royal Society, which in abridgement, are generally read, to the great improvement of philosophy. ... How must general systems of sciences be written, which are nothing more than epitomes of those authors who have written on particular branches, and whose works are made less necessary by such collections? Can he that destroys the profit of many copies be less criminal than he that lessens the sale of one?" [27]

5. The concept of ‘fair abridgement'
Austen (1739) was not, however, the only time in which Cave was brought before Chancery for reproducing another's work in his magazine. In Cogan v. Cave (1743) the plaintiff sought an injunction until answer to prevent the publication of parts of Elizabeth Haywood's book, The Unfortunate Young Nobleman, in the Gentleman's Magazine,[28] which was duly granted.[29] The similarity with Austen ends here, though, as Cave, having entered his answer, petitioned that "the said Injunction may be dissolved", which was ordered "unless the said plaintiff ... shall [within a certain time] shew unto this court good cause to the contrary". Cogan failed to give cause and the injunction was dissolved. Unfortunately, no copy of Cave's answer has survived, but presumably the nature of his argument as to the lawfulness of reprinting extracts and abridgements did not stray too far from the answer he had submitted in the earlier litigation. Cave's arguments then as to the reasonableness and non-prejudicial nature of what was a commonplace practice in the trade featured prominently in the later case of Dodsley v. Kinnersley (1761) in which, somewhat ironically, the defendant had published an abridged version of Johnson's Rasselas in his miscellany the Grand Magazine of Magazines.[30] In argument before the court, counsel for the defendant suggested that what had been printed was "a fair abridgment, and, as such, not a piracy".[31] "No certain line can be drawn", Clarke MR (1703/04-1764) observed, "to distinguish a fair abridgment; but every case must depend on its own circumstances".[32] Noting that "it does not appear that one-tenth part of the first volume has been abstracted", Clarke MR continued that to determine whether this was a fair or "elusory" abridgement "[t]he court must take notice of the springs flowing from the trade; and though they cannot regard customs of trade as binding, yet [the court] will consider the consequences of them". It was of some significance that the plaintiffs themselves had arranged for an abridgement of the work to appear in the London Chronicle, and that before Kinnersley had printed his version. If the plaintiff's own abridgement was not prejudicial to Johnson's book, then how could it be that the defendant's version was? Clarke MR continued:

"I cannot enter into [the] goodness or badness of the abstract. It may serve the end of an advertisement. In general, it tends to the advantage of the author, if the composition is good; if it is not, it cannot be libelled. What I materially rely upon is, that it could not tend to prejudice the plaintiffs, when they had before published an abstract of the work in the London Chronicle. If I was to determine this to be elusory, I must hold every abridgment to be so; and that, form its extensive consequence, would prejudice the plaintiffs."[33]

Sir Thomas Clarke refused the plaintiffs' their injunction, as a result of which decision, the proliferation of review articles, literary ‘epitomes', abridgements, and ‘detached episodes', within the periodical press became even more ubiquitous.[34]

The concept of the "fair abridgement" was not, however, coined in Dodsley. Indeed, in beginning his judgment, Clarke MR observed that "the subject matter of this suit has been so often before the Court upon other occasions, that when a case of this kind comes to be litigated, little more is necessary than to see whether it is adapted to the rules and principles before laid down".[35] The concept of the "fair abridgement" first surfaced in Gyles v. Wilcox (1741), which concerned the abridged republication of a work, not in a periodical magazine, but as a separate work in and of itself. Gyles had its own precursor in the guise of Read v. Hodges (1740)[36] in which the plaintiff had published a three-volume edition of John Motley's work The History of the Life of Peter the First Emperor of Russia. James Hodges, the defendant, then published the work in one volume under the title of The Life and Reign of the Czar Peter the Great. This, Read claimed was:

"[R]eally and truely the very same ... and almost wholly taken and copied therefrom and consists of the same paragraphs and almost of the same words and if the same doth in some particular places vary in some few words from Your Orator's said book such variations were only craftily made and contrived merely to deceive Your Orator but the same does not materially differ from Your Orator's said book except that some of the public memorials and copies of records are left out and omitted ... merely with Intent and Design to reduce the bulk of the said Book so that he might be able to sell the same at an under rate and cheaper than Your Orator could afford to sell his..." [37]

The court granted Read an injunction until answer, which was submitted on 29 April 1740. Hodges mounted three main rebuttals. In the first place, he disputed that the plaintiffs had been to "very great expence, industry and pains" in preparing the book, given that a "great Part of the book is transcribed from and composed of several Publick tracts, memorials and translations of papers ... and particularly that no less than 108 pages [of Vol.3] are transcribed and with little or no variation of phrase from a book entitled The Present State of Russia (1722)". He then asserted that he himself had "compiled, printed and published an Abridgement" of their work, in which "there is not one whole page of the complainants said book transcribed into this defendants book without variation or abridging the same". His volume, he pointed out, was designed "for the entertainment of more ordinary and mean readers". Finally, Hodges argued that, in any case, his text was not the same work "but is of a different nature, and humbly insists that it is in the nature of an abridgment". He conceded that the two works must of course consist "of the same matter and substance" but continued that this "must be in the nature of things were an abridgment is fairly made".[38] Having concluded, the defendant asked that the injunction previously granted be dissolved.[39] The plaintiff called into question the adequacy of the defendant's answer, a matter which was referred to Mr. Sawyer, a Master of the Court. On 19 May, Mr Sawyer reported that the answer was sufficient, and the injunction was duly dissolved. On the same day, and following Sawyer's report, Lord Hardwicke heard submissions from both parties, and Read petitioned that the injunction may be revived. The Lord Chancellor granted his request "until the hearing of the case",[40] after which the litigation stalled.

6. Reading Gyles v. Wilcox (1741)
When Read v. Hodges was cited to Lord Hardwicke in the later case of Tonson v. Walker (1752) he is reported to have commented that he had considered Hodges' publication "an evasive abridgment", and so had allowed the reinstatement of the injunction until the hearing.[41] However, speaking in Gyles, less than a year after Read itself, he observed that the earlier decision had been "upon a motion only, and at the time I gave my thoughts without much consideration (and therefore shall not lay any great weight upon it)".[42] In Gyles the plaintiffs complained about an abridgement of Sir Matthew Hale's Pleas of the Crown, in which they alleged the defendants, Wilcox and Barlow, had transcribed "the said Treatise or the greatest part thereof in the very words thereof" into a Book under the title of a Treatise of Modern Crown Law.[43] Counsel for Wilcox denied that the second work had been transcribed from the former in the straightforward manner in which the plaintiffs suggested. Rather, he set out that "severall intire chapters" of the original work had been deliberately omitted, while "several chapters of different Material not to be found" in the original had been included within the defendants' book. He continued that many "very valuable and learned" works which:

"[H]ave been published since the [1710 Act] have been abridged and translated by others without the consent of the authors or proprietors of the original works and he the defendant never understood that such abridgements or translations were within the words or meaning of the act or were adjudged or constrained so to be..."[44]

Two printed reports of this stage of the proceedings make interesting reading. Barnardiston (1706-1752) records that the Lord Chancellor began by noting that the Statute of Anne was "an Act made for the Encouragement of Learning, and is useful to that End. This shews that the Act is for the public Benefit and Advantage, and therefore the Act is not to be construed strictly, but according to the intention of the Legislature". Considering the words of the statute, "any such Book or Books", he proffered that the relevant question has and should always be "[w]hether the second book has always been the same Book with the former". "Whether the second Book is the same as the former", Lord Hardwicke continued, "is a Matter of Fact, and a Fact of difficulty to be determined". Referring that task to a Master of the Court, assisted by "two Persons skilled in the Profession of Law",[45] he continued the injunction in the interim. Thereafter, it was decided that the second work was indeed a fair abridgement and so not within the statute; the injunction was dissolved.

In the second of these reports, by Atkyns (1706-1773), the Lord Chancellor's reading of the 1710 Act is presented somewhat differently. He records that Lord Hardwicke considered "that it ought to receive a liberal construction ... as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompense for their pains and labour in such works as may be of use to the learned world".[46] The Lord Chancellor's attitude to the decision in Read is recorded in more ambivalent terms. Atkyns relates that the judge perceived a problem in applying the decision in Read to all those cases involving abridgements; should he "extend the rule so far as to restrain all abridgements it would be of mischievous consequence". Again, the question for the Lord Chancellor was whether or not the two books were the same, for "where the second book has been an abridgement it has been understood not to be the same book, and therefore to be out of the Act". In this version of the case, Lord Hardwicke laid down several guidelines for dealing with situations of this kind:

"Where books are colourably shortened only, they are undoubtedly within the meaning of the Act of Parliament and a mere evasion of the statute, and cannot be called an abridgement. ... But this must not be carried so far as to restrain persons from making a real and fair abridgement, for abridgements may with great propriety be called a new book, because, not only the paper and print, but the invention, learning and judgment of the author is shewn in them, and in many cases are extremely useful..."[47]

That Hardwicke considered the "real and fair abridgement" to be, in many cases, "extremely useful", perhaps gives us some insight as to why he decided the case as he did. As was the case with Pope v. Curl (1741),[48] the Lord Chancellor was presented with an issue not contemplated by the drafters of the 1710 Act. If someone published merely part of an author's work, or published an abridged version of that work, was he acting in contravention of the legislation? The Statute of Anne proffered no guidance. Campbell, in his examination of Lord Hardwicke, portrays him as a judge "with a reputation which no one presiding in the Court of Chancery has ever enjoyed", the wisdom of whose decrees "was the theme of universal eulogy".[49] He continues that Hardwicke "was anxious to bring every case within the scope of some general principle which he enunciated and defined".[50] Describing the Lord Chancellor's judicial approach while presiding over the Court of Chancery, Campbell writes that "he reviewed all the authorities upon the subject, and, if none of them were expressly in point, he tried to educe from them by analogy a rule which harmonised with them in principle, and which might equally govern all cases similarly circumstanced".[51] Such an assessment certainly resonates with the manner in which Hardwicke sought to accommodate the questions raised in Read (1740) and Gyles (1741) with the context of the Statute of Anne. While that statute said nothing specifically about this issue, Lord Hardwicke contended that it was to be construed "liberally" and "according to the intention of the Legislature". The 1710 Act was predicated primarily upon a social bargain struck between the author, the bookseller and the reading public, in order to encourage the spread of learning and promote the continued production of useful books.[52] An appreciation of this central thrust of the legislation certainly seems to have informed the policy which Lord Chancellor adopted in relation to abridged texts. That is, a balance had to be struck between protecting the author, who, as a result of his own efforts, had produced something "of use to the learned world", and the genuine abridger, who through his own "invention, learning, and judgment" very often produced a work that was similarly "extremely useful". Allowing both the author and the genuine abridger equal standing in the market, did not of course mean that the "evasive" abridger would not be held to infringe against the act;[53] what it did mean however was that the reading public would benefit from the widest possible variation and range of "useful" literature as the market might sustain.

7. Re-reading Gyles v. Wilcox (1741)
As Burrell and Coleman point out, most commentators regard Gyles as an instance of judicial activism wherein it was first recognized "that there are circumstances in which the reproduction of part of another work without the copyright owner's consent is justified" as being in the public interest.[54] That is, Gyles represents the earliest common law forerunner of what we now understand (within the UK) as the statutorily defined "acts permitted in relation to copyright works".[55] The doctrine in Gyles was reaffirmed a number of times throughout the eighteenth century,[56] and was extended and developed in the early nineteenth century into a more general doctrine of "fair user". In Cary v. Kearsley (1804), for example, Lord Ellenborough (1750-1818) observed that "a man may fairly adopt part of the work of another: he may so make use of another's labours for the promotion of science, and the benefit of the public: but having done so, the question will be, Was the matter so taken used fairly with that view, and without what I may term animus furandi?"[57] In Wilkins v. Aikin (1810) Lord Eldon (1751-1838) accepted the principle of "fair quotation" albeit subject to the caveat that "a man cannot under the pretence of quotation, publish either the whole or part of another's work".[58] Similarly in Whittingham v. Wooler (1817) the use of extracts to "serve as the foundation for" a critical review was not considered to be a transgression against the legislation.[59] Thirty years later, in Campbell v. Scott (1842), Shadwell VC (1779-1850) commented that "[i]f a critical note had been appended to [a series of poems in an edited collection] by way of illustration, or to show whence [the author] had borrowed an idea, or what idea he had communicated to others" such use of another's work would be "fair criticism".[60]

Vaver, in his commentary upon abridgements and abstracts of copyright works, recounts the evolution of the concept of ‘fair abridgement' throughout the nineteenth century when "attitudes changed as writing for money became a respectable calling and Parliament expanded notions of copyright. Economic harm to the publisher and the author, especially when the author depended upon royalties from sales, could not be dismissed as breezily as it had been in the 18^th century".[61] He continues that "[b]y the last quarter of the 19^th century ... the days of the free-roaming abridger were clearly numbered", such that with the passage of the Copyright Act 1911 the right to abridge a work was brought within the copyright owner's control,[62] and the various instances of ‘fair user',[63] which had developed throughout the nineteenth century, were recast as a much less flexible series of specific uses that might otherwise be considered to be ‘fair dealing'.[64] This narrative naturally tends to cast the judiciary, rather than the legislature, as "the best champion of user interests".[65] And yet, there is perhaps a more ambivalent reading of the history of judicial attitudes towards such copyright exceptions, as well as the specific decision of the Lord Chancellor in Gyles. Consider Burrell and Coleman's comments:

"Although ... Gyles v. Wilcox established that a ‘real and fair abridgement' would not infringe copyright, it should be noted that starting point for this conclusion was almost exactly the opposite of that which would be taken today. The Statute of Anne provided that ‘the author of any book or books ... shall have the sole liberty of printing and reprinting such book or books'. Read literally, the result of this wording would have been that unless it could be shown that the defendant had reprinted the plaintiff's book there would be no infringement. Yet almost from the outset the courts did not proceed in this way. By starting with the unobjectionable proposition that making a merely colourable alteration to an earlier work would not be sufficient to avoid the statute, the courts were able to expand copyright protection well beyond cases that could meaningfully be described as a case of reprinting."[66]

Re-read in this light, following on from Gyles, the various exceptions which the courts carved out for copyright users throughout the eighteenth and nineteenth century can be reinterpreted as no more than an attempt to further expand the rights of the copyright owner.[67] Whichever reading of Gyles one wishes to adopt, Lord Hardwicke's decision nevertheless stands out, within the history of the development of copyright in Britain, as one of considerable significance.

8. References

Governmental papers and legislation

Statute of Anne, 1710, 8 Anne c.19

Engravers' Act, 1735, 8 Geo.II, c.13

Cases

Burnet v. Chetwood (1721) 2 Mer. 441

Austen v. Cave (1739) NA, c.11 1552/3, c.33 371/493, 535, 586, 373/41, 224, 415, 535

Hitch v. Langley (1739) NA, c.33 371/493

Read v. Hodges (1740) NA, c.11 538/36

Pope v. Curl (1741) 2 Atk. 342

Cogan v. Cave (1743) NA, c.33 379/485, 521, 547, c.33 383/69

Tonson v. Walker (1752) 3 Swans 672

Dodsley v. Kinnersley (1761) Amb. 403

Millar v. Taylor (1769) 4 Burr. 2303

Hawkesworth v. Newbery (1774) Lofft 775

The Cases of the Appellants and Respondents in the Cause of Literary Property, before the House of Lords, wherein the Decree of Lord Chancellor Apsley was reversed (London: Bew, 1774), 46 (Donaldson v. Becket (1774))

Bell v. Walker (1785) 1 Bro.C.C. 451

Cary v. Kearsley (1804) 4 Esp. 168

Wilkins v. Aikin (1810) 17 Ves. Jun. 422

Whittingham v. Wooler (1817) 2 Swanst. 428

Southey v. Sherwood (1817) 2 Mer. 435

Murray v. Benbow (1822) The Times 2 Feb. 1822

Lawrence v. Smith (1822) Jacob 471

Vesey v. Sweet (1823) The Times, 22 July 1823

Murray v. Dugdale (1823) The Times 22 July 1823

Mawman v. Tegg (1826) 2 Russ. 385

Stockdale v. Onwhyn (1826) 5 B&C 174

Cobbett v. Strange (1835) The Times, 28 July 1835

Norton v. Churton (1835) The Times 16 July 1835

Saunders v. Smith (1838) 3 MY&CR 711

Sweet v. Shaw (1839) The Times, 23 March 1839

Sweet v. Carter (1841) 11 Sim. 572

Campbell v. Scott (1842) 6 Jur. 186

Martin v. Wright (1833) 6 Simons' 296

Glynn v. Weston Feature Films [1916] 1 Ch 261

AG v. Guardian (No. 2) [1990] 1 AC 109

Hyde Park v. Yelland [2001] Ch 143

Books and Articles

Burnet, G., The History of the Reformation of the Church of England (London: Chiswell, 1679)

Burrell, R., "Reigning in Copyright law: Is Fair Use the Answer?" Intellectual Property Quarterly, (2001): 361-88

Burrell, R., and Coleman, A., Copyright Exceptions: The Digital Impact (Cambridge: Cambridge University Press, 2005)

Campbell, J., Lives of the Lord Chancellors, 8 vols. (London: John Murray, 1846-1869)

Carlson, C.L., The First Magazine: A History of the Gentleman's Magazine (Providence: Brown University, 1938)

Defoe, D., An Essay on the Regulation of the Press, reprinted by the Luttrell Society (Oxford: Blackwell, 1958)

Hyde, E., The History of the Rebellion and Civil Wars in England (Oxford: n.p., 1702-04)

Italia, I., The Rise of Literary Journalism in the Eighteenth Century: Anxious Employment (London & New York: Routledge, 2005)

Mayo, R.D., The English Novel in the Magazines, 1740-1815 (London: Oxford University Press, 1962)

Sullivan, A., ed., British Literary Magazines: The Augustan Age and the Age of Johnson, 1698-1788 (Westport, Connecticut, and London, England: Greenwood Press, 1983)

Vaver, D., "Abridgments and Abstracts: Copyright Implications", European Intellectual Property Review, 17 (1995): 225-235

Other

Johnson, S., "Considerations on the Case of Dr.Trapp's Sermons, abridged by Mr. Cave, 1739", reprinted in The Gentleman's Magazine, 57 (July 1787): 555-57

[1] D. Defoe, An Essay on the Regulation of the Press, reprinted by the Luttrell Society (Oxford: Blackwell, 1958), 25-7.

[2] In contrast, the drafters of the Engravers' Act 1735, 8 Geo.II, c.13, who specifically provided that copyright prohibition extended to the engraved work prohibited the copying of the work "in the whole or in part, by varying, adding to or diminishing from the main Design"; see: uk_1735.

[3] Burnet v. Chetwood (1721) 2 Mer. 441; see: uk_1721.

[4] Ibid. Since this time the courts, within the UK at least, have ever assumed the ability to adjudicate upon the dissemination and protection of copyright material in a manner which functions outside the bounds of the statute, but falls within their inherent jurisdiction at common law. In Burnet this took the unusual form of granting an injunction to prevent the publication of a work that did not in fact infringe the copyright in any other work. More typically, the courts have tended to exercise this inherent jurisdiction by refusing a claimant relief on the grounds that the content of the claimant's work is obscene or sexually immoral, defamatory, blasphemous or irreligious. See for example: Southey v. Sherwood (1817) 2 Mer. 435; Murray v. Benbow (1822) The Times 2 Feb. 1822; Lawrence v. Smith (1822) Jacob 471; Murray v. Dugdale (1823) The Times 22 July 1823; Stockdale v. Onwhyn (1826) 5 B&C 174; Norton v. Churton (1835) The Times 16 July 1835; Glynn v. Weston Feature Films [1916] 1 Ch 261; AG v. Guardian (No. 2) [1990] 1 AC 109; Hyde Park v. Yelland [2001] Ch 143. The somewhat counterintuitive result of this judicial refusal to protect what would be otherwise copyright protected, is that anyone is free to make use of such materials without permission, safe in the knowledge that the courts will not grant relief to author of those materials. Indeed Lord Chancellor Eldon recognised as much in Southey v. Sherwood: "It is very true that, in some cases, [the decision] may operate so as to multiply copies of mischievous publications by the refusal of the Court to interfere by restraining them; but to this my answer is, that, sitting here as a Judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties except as it relates to their civil interests; and if the publication be mischievous, either on the part of the author, or of the bookseller, it is not my business to interfere with it"; ibid., 439-40.

[5] Gyles v. Wilcox (1741), National Archives (NA), c.33 375/274; see also: 2 Atk. 141; Barn C. 368; 3 Atk. 269.

[6] In practice a number of similarly styled periodicals anticipated the emergence of Cave's Gentleman's Magazine, such as Delights for the Ingenious (1711), the Post Angel (1701-1704), and Motteaux's Gentleman's Journal (1692-1694); see: A. Sullivan, ed., British Literary Magazines: The Augustan Age and the Age of Johnson, 1698-1788 (Westport, Connecticut, and London, England: Greenwood Press, 1983), xx-xxi; R.D. Mayo, The English Novel in the Magazines, 1740-1815 (London: Oxford University Press, 1962), 207-08.

[7] I. Italia, The Rise of Literary Journalism in the Eighteenth Century: Anxious Employment (London & New York: Routledge, 2005), 20. In general see C.L. Carlson, The First Magazine: A History of the Gentleman's Magazine (Providence: Brown University, 1938).

[8] Italia, 111.

[9] Quoted in Italia, 116.

[10] Indeed, in time, the practice of borrowing works from other magazines, and reproducing pieces at second hand, became widely accepted within the industry; see Mayo, 226, 248-250, and Italia, 118-19.

[11] Italia writes in the following terms: "Journalistic plagiarism in itself was no novelty in 1731. Newspaper editors made a merit of having gathered their information from as wide a variety of printed sources as possible. The first daily paper, the Daily Courant, promises that ‘at the beginning of each Article he will quote the Foreign Paper from whence ‘tis taken', without adding any ‘Comments of Conjectures of his own' (11 March 1702). Miscellanies such as the Monthly Chronicle printed summaries of the foreign and domestic news, drawn from the month's press, whilst the Grub-Street Journal reprinted passages from the daily newspapers, together with caustic commentary on their accuracy and prose style"; ibid., 111.

[12] Mayo, 226.

[13] Austen v. Cave (1739), NA, c.11 1552/3, c.33 371/493, 535, 586, 373/41, 224, 415, 535. This case is often reported as having been decided on 17 May 1739.

[14] Hitch v. Langley (1739), NA, c.33 371/493, 541, 591, was also brought before Lord Hardwicke on the same day as Austen v. Cave. In Hitch the complainants, who had purchased "the Copy Right or sole privilege of printing" James Gibbs' two books on architecture, alleged that Langley had "printed coppyed published and sold great parts of the said books" without their consent. They too prayed that an injunction be awarded to prevent the defendant from printing either of the books "or any part or parts thereof" and were granted the same.

[15] NA, c.33 371/493.

[16] NA, c.11 1552/3.

[17] The extract from Trapp's work appears in the Gentleman's Magazine, 9 (June 1739): 288-292.

[18] NA, c.11 1552/3.

[19] NA, c.33 373/41, 224, 415, 535. The only printed report of the case records that Lord Hardwicke rejected Cave's suggestion that the 1710 Act did not extend to the use of extracts from a work, commenting that "[i]t is not material what Title you give a book, nor whether you print all at once or not"; Austen v. Cave (1740) 2 Eq Ca Abr. Presumably the Lord Chancellor remained unconvinced as to the evidence of Cave's motives and actions; the implication is that he considered that Cave, as the plaintiffs had alleged, was indeed intending to print the entire work, but in stages.

[20] S. Johnson, "Considerations on the Case of Dr.Trapp's Sermons, abridged by Mr. Cave, 1739", reprinted in The Gentleman's Magazine, 57 (July 1787): 555-57.

[21] Ibid., 556.

[22] Ibid.

[23] G. Burnet, The History of the Reformation of the Church of England (London: Chiswell, 1679).

[24] E. Hyde, The History of the Rebellion and Civil Wars in England (Oxford: 1702-04).

[25] In fact Burnet produced an abridged version of his own work in 1682.

[26] Johnson, 556.

[27] Ibid., 557.

[28] Extracts from Hayward's book appeared in the Gentleman's Magazine, 13 (Feb. 1743): 93-94, 13 (April 1743): 204-05, and in 13 (June 1743): 305-06.

[29] Cogan v. Cave (1743), NA, c.33 379/485, 521, 547, c.33 383/69.

[30] Dodsley v. Kinnersley (1761) Amb. 403. Following the appearance of the abridged version of Rasselas in Kinnersley's magazine, other versions subsequently appeared in the same year in both the London Magazine and the Universal; see Mayo, 240.

[31] Dodsley v. Kinnersley, 405.

[32] Ibid.

[33] Ibid.

[34] Mayo, 241-53. See also Willes J. in Millar v. Taylor (1769) 4 Burr. 2303, when he comments that "bona fide imitations, translations, and abridgements are different; and, in respect of the property, may be considered as new works: but colourable and fraudulent variations will not do"; ibid., 2310. Smythe CB in Donaldson v. Becket (1774) noted that while "[a]bridgements of books ... translations, [and] notes ... effectviely deprive the original author of the fruits of his labours ... yet they are allowable"; see: The Cases of the Appellants and Respondents in the Cause of Literary Property, before the House of Lords, wherein the Decree of Lord Chancellor Apsley was reversed (London: Bew, 1774), 46.

[35] Dodsley v. Kinnersley, 404.

[36] Read v. Hodges (1740), NA, c.11 538/36; c.33 374/153, 250, 255, 275, 299.

[37] NA, c.11 538/36.

[38] Ibid.

[39] NA, c.33 374/255.

[40] Na, c.33 374/275, 299.

[41] Tonson v. Walker (1752) 3 Swans 672, 679.

[42] (1741) 2 Atk. 142. In an alternative report of Gyles (Barn.C. 368) Lord Hardwicke is reported as commenting that, in Read, "the second Book that was published no otherwise varied from the first, than by leaving out certain parts of the former, and only by that Means shortening it, and the Court was of Opinion, that an Injunction ought to have been granted to restrain the printing of that second Book"; ibid.

[43] It is quite remarkable how many cases concerning abridged texts throughout the eighteenth and nineteenth century revolved around legal treatises. See for example: Vesey v. Sweet (1823) The Times, 22 July 1823; Saunders v. Smith (1838) 3 MY&CR 711; Sweet v. Shaw (1839) The Times, 23 March 1839; and Sweet v. Carter (1841) 11 Sim. 572.

[44] NA, c.33 375/274.

[45] A Mr Cay and Mr Stephens.

[46] (1741) 3 Atk 269.

[47] (1741) 2 Atk 141, 143, emphasis added. Campbell's record of the Lord Chancellor's opinion accords most closely with Atkyns. He relates Lord Hardwicke's address in the following terms: "When books are only colourably shortened, the statute is evaded, and the law will give redress. But this must not be carried so far as to restrain persons from making a real and fair abridgment. An abridgment may, with great propriety, be called a new book. Not only are the paper and printing the abridger's, but in his task he may show invention, learning, and judgment. In many cases, abridgments are extremely useful, though sometimes they are prejudicial, by curtailing and mistaking the sense of the author"; J. Campbell, Lives of the Lord Chancellors, 8 vols. (London: John Murray, 1846-1869) 6: 202-03.

[48] See: uk_1741a.

[49] Campbell, 197.

[50] Ibid., 196.

[51] Ibid.

[52] The preamble to the Act specifically sets out one of the goals of the legislation being to encourage "learned men to compose and write useful books"; Statute of Anne, 1710, 8 Anne c.19, Preamble; see: uk_1710.

[53] An example is that of Tonson v. Walker in which Lord Hardwicke considered the defendant's work "a mere evasion" rather than "a fair abridgment"; ibid., 681. See also Bell v. Walker (1785) 1 Bro.C.C. 451, and Cobbett v. Strange (1835) The Times, 28 July 1835.

[54] R. Burrell and A.Coleman, Copyright Exceptions: The Digital Impact (Cambridge: Cambridge University Press, 2005), 254.

[56] See for example: Tonson v. Walker; Dodsley v. Kinnersley; Hawkesworth v. Newbery (1774) Lofft 775.

[57] Cary v. Kearsley (1804) 4 Esp. 168, 170.

[58] Wilkins v. Aikin (1810) 17 Ves. Jun. 422, 424.

[59] Whittingham v. Wooler (1817) 2 Swanst. 428, 430; see also Mawman v. Tegg (1826) 2 Russ. 385 in which Lord Eldon observed: "Quotation, for instance, is necessary for the purpose of reviewing; and quotation for such a purpose is not to have the appellation of piracy affixed to it; but quotation may be carried to the extent of manifesting piratical intention"; ibid., 393.

[60] Campbell v. Scott (1842) 6 Jur. 186. See also Martin v. Wright (1833) 6 Simons' 296, in which the Vice Chancellor commented that "[a]ny person may copy and publish the whole of a Literary Composition, provided he writes Notes upon it, so as to present it to the Public, connected with matter of his own"; ibid., 298.

[61] D. Vaver, "Abridgments and Abstracts: Copyright Implications", European Intellectual Property Review, 17 (1995): 225-235 (226).

[62] Copyright Act, 1911, 1 & 2 Geo.V, c.46, s.1(2) set out that copyright "means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, or the case of a lecture, to deliver, the work or any substantial part thereof in public".

[63] On the concept of fair use in nineteenth century Britain see R. Burrell, "Reigning in Copyright law: Is Fair Use the Answer?", Intellectual Property Quarterly, (2001): 361-88.

[64] These included "fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary"; Copyright Act, 1911, s.2(1)(i).

[65] Burrell and Coleman, 255. They continue: "Thus, to summarise, the dominant history of the evolution of the copyright exceptions in the United Kingdom is a tale of judicial activism in which the judiciary is rpesented as creating a series of exceptions almost out of thin air in order to rein in an overly broad right created by Parliament"; ibid.

[66] Ibid., 255-56.

[67] Ibid., 256.