Primary Sources on Copyright (1450-1900)
Commentary on An Enquiry into the Nature and Origin of Literary Property 1762
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on An Enquiry into the Nature and Origin of Literary Property (1762)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. Literary Property and the Pamphleteers
1. Full title
Anon., An Enquiry into the Nature and Origin of Literary Property (1762)
One of a number of published commentaries contributing to the mid-eighteenth century debate concerning the nature of literary property. The author of An Enquiry sought to repudiate the concept of a natural authorial property right existing at common law. In so doing, he specifically engaged with various aspects of William Warburton's earlier commentary (see: uk_1747), as well as presenting arguments that drew upon the nature of property in general, the differences between the right claimed by proponents of the common law right and other acknowledged incorporeal properties, the similarities between patents and copyright, the history of literary property, the experience of other jurisdictions (drawing upon Venice in particular), and the consequences that would follow from conceding the existence of a perpetual right both for authors in particular and society in general. This commentary, in turn, drew its own response in the guise of A Vindication of the Exclusive Rights of Authors, to their own work (1762).
3. Literary Property and the Pamphleteers
In 1762, while Tonson v. Collins was being debated before the courts, two pamphlets were published. The first, An Enquiry into the Nature and Origin of Literary Property, was very much a belated reaction to William Warburton's (1698-1779) earlier commentary ("A Letter from an Author, to a Member of Parliament, concerning Literary Property"). The second, A Vindication of the Exclusive Right of Authors, to their own works, was a response in kind to the publication of An Enquiry. These pamphlets, as well as others that would follow, contributed to the various rhetorical strands that had emerged through Midwinter v. Hamilton (1748), Millar v. Kincaid (1751), Tonson v. Walker (1752), and Tonson v. Collins itself. Much was made of the law, both written and unwritten, that had gone before: the pre-history of the Statute of Anne was addressed; comparisons were drawn with continental systems of protection; the wording of the Act itself received various interpretations; the Chancery case law was subject to contrasting readings; common law precedents were sought. The very nature of property was similarly contested, as well as the manner in which literary property sat within that broader analysis. In addition, what consequences might flow from recognizing a perpetual common law right were held up to scrutiny. The impact that such a decision would have upon both the reading public in general and the book trade in particular was considered at some length, as were constitutional arguments as to the role of the judiciary, their relationship with the legislature, and their place in resolving the issue at hand.
These various legal, historical and conceptual threads of argumentation were revisited in a number of pamphlets that appeared upon the subject at the time of the House of Lords decision in Donaldson v. Becket (1774). Francis Hargrave (1740/41-1821), third counsel for the London booksellers in Donaldson, not given the opportunity to voice his arguments before the House of Lords, published them instead as An Argument in Defence of Literary Property. His work was accompanied by William Enfield's (1741-1797) Observations on Literary Property, and Catherine Macaulay's (1731-1791) A Modest Plea for the Property of Copyright. With the decision in Donaldson, of course, the anti-monopolists would eventually emerge victorious in the "battle of the booksellers", however it is the nature and substance of the debate that was generated that remains of particular significance. As Sherman and Bently observe: "[O]ne of the reasons why the battle of the booksellers is so interesting and why it has received so much attention in intellectual property scholarship is that it was not only the first but perhaps the only time in which so many issues were discussed at such length and in such detail". Through the process of contesting the meaning of the Statute of Anne, the concept of copyright itself would come to be defined. The authors of these various pamphlets ensured that this highly significant debate was played out, not just in the courtroom, but in the public eye as well.
Government papers and legislation
Statute of Anne, 1710, 8 Anne, c.19
Midwinter v. Hamilton (1748)
Millar v. Kincaid (1751) BL, 18th century reel, 4065/03, 04
Tonson v. Walker (1752) 3 Swans 672
Tonson v. Collins (1762) 1 Black W. 321
Donaldson v. Becket (1774) 4 Burr. 2408
Books and Articles
Anon. [Stella], Modest Exceptions from the Court of Parnassus, to Mr Macauley's Modest Plea (London: n.p., 1774)
Anon., A Vindication of the Exclusive Rights of Authors, to their own works (London: Griffiths, 1762)
Enfield, W., Observations on Literary Property (London: n.p., 1774)
Hargrave, F., An Argument in Defence of Literary Property (London: Ottridge, 1774)
Macaulay, C., A Modest Plea for the Property of Copyright (Bath: n.p., 1774)
Nichol, D.W., Pope's Literary Legacy: The Book-Trade Correspondence of William Warbuton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992)
Parks, S., ed., Horace Walpole's Political Tracts 1747-1748 with Two by William Warburton on Literary Property, 1747 and 1762 (New York & London: Garland, 1974)
Sherman, B., and Bently, L., The Making of Modern Intellectual Property Law, The British Experience, 1760-1911 (Cambridge: Cambridge University Press, 1999)
 Tonson v. Collins (1762) 1 Black W. 321 (see: uk_1762).
 An Enquiry into the Nature and Origin of Literary Property, (1762), reprinted in S. Parks, ed., Horace Walpole's Political Tracts 1747-1748 with Two by William Warburton on Literary Property, 1747 and 1762 (New York & London: Garland, 1974). This pamphlet has often been misattributed to William Warburton. That he should adopt a position contrary to the one he set out in his earlier Letter from an Author (see: uk_1747) is unlikely. In 1759, for instance, fifteen years after Alexander Pope's death, Warburton supervised the sale of John Knapton's share in Pope's works to Andrew Millar and Somerset Draper. In the same year, and just three years before the publication of An Enquiry, Warburton wrote to Mercy Doddridge sharing his thoughts on copyright with her in the following terms: "If the work was written within fourteen years, the property is secured by Act of Parliament; when that time is elapsed, it is then claimed by Common Law". See D.W. Nichol, Pope's Literary Legacy: The Book-Trade Correspondence of William Warbuton and John Knapton with other letters and documents, 1744-1780 (Oxford: The Oxford Bibliographical Society, 1992), lix, 129.
 See: uk_1747.
 There exist a number of documents relating to this action available in the Bodleian Library, the British Library, and the Advocate's Library, Edinburgh. See for example: Petition of the Booksellers of London against the Booksellers of Edinburgh and Glasgow, 15 July 1746; Answers for the Booksellers of Edinburgh and Glasgow to the petition of Andrew Millar and other Booksellers in London, July 29 1746; and, Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, 21 December 1746. See also S. Parks, ed., The Literary Property Debate: Seven Tracts, 1747-1773 (London: Garland Publishing, 1974).
 Millar v. Kincaid (1751) BL, 18th century reel, 4065/03, 04.
 Tonson v. Walker (1752) 3 Swans 672.
 See: uk_1762.
 See: uk_1774.
 B. Sherman and L. Bently, The Making of Modern Intellectual Property Law, The British Experience, 1760-1911 (Cambridge, Cambridge University Press, 1999), 15.