Primary Sources on Copyright (1450-1900)
Identifier: uk_1775
Commentary on Stationers' Company v. Carnan (1775)
Ronan Deazley
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Stationers' Company v. Carnan (1775)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
2. Abstract
3. Printing and the Royal Prerogative
4. Thomas Carnan and the Almanac Monopoly
5. The Stationers attempt to regain control of the market
6. Stamp Duty and the return of a de facto monopoly
7. Carnan and the Concept of Prerogative Copyright
8. Crown Copyright and Court Judgments in the twenty-first century
9. References
1. Full title
Stationers' Company v. Carnan (1775) 2 W. Bl. 1004
2. Abstract
Case in which the Court of Common Pleas decided that the Crown did not have the authority to grant exclusive prerogative rights over the printing of almanacs, a monopoly which the Stationers' Company had enjoyed, uncontested, since the formation of the ‘English Stock' in the early seventeenth century.
The commentary describes the background to the litigation, as well as the various strategies that the Stationers' Company employed in their efforts to regain control of the almanac market in the wake of the decision. It also explores how the decision provided the springboard for the emergence of a more contemporary concept of prerogative copyright. It was no longer thought that the Crown could grant printing patents over certain classes of work as of right. Rather, it was the monarch's unique constitutional position as head of both church and state that imposed an obligation to ensure the dissemination of authentic and authoritative versions of both legal and religious materials, and, from this obligation, the right to print the same arose.
3. Printing and the Royal Prerogative
When Henry VIII (1491-1547) began to grant privileges concerning the right to print and publish certain types of books,[1] he did so under the aegis of the royal prerogative, through which he also sought to regulate and administer national economic policy and trade. Magna Carta may have guaranteed freedom of trade to all merchants within the realm,[2] but it was nevertheless accepted that, so long as the Crown was acting in the general public good, then it had the power, as part of the prerogative, to grant privileges promoting economic and industrial development by restricting competition.[3] During Elizabeth's (1533-1603) reign the consistent use of these privileges took on the shape of strategic national policy, while the privileges themselves took on the character of monopolistic grants.[4] Towards the end of her reign, however, there was growing discontent about her use and abuse of these monopoly grants. In 1597 an address was presented to the Queen concerning the matter. In response, she conveyed her wish that "her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, and the principal and head pearl in her crown and diadem" in exchange for which she promised to examine all patents "to abide the trial and true touchstone of the law".[5] Despite Elizabeth subsequently agreeing to revoke a number of grants to which the Commons objected,[6] things did not improve. In 1598 she granted Edward Darcy a monopoly on the import, manufacture and sale of playing cards in England and its dominions for the period of twenty-one years, which grant gave rise to the seminal decision of Darcy v. Allen (1603),[7] otherwise referred to as the Case of Monopolies. In Darcy the court held that the grant to the plaintiff was void on the grounds of being a monopoly contrary to the common law (as well as several statutes).[8] The decision did not, however, render all monopolies void; rather, it simply set out various common law principles regulating such grants, principles that were further elaborated upon in the subsequent decision of the King's Bench in the Cloth Workers of Ipswich Case (1614).[9]
When James (1566-1625) acceded the throne, having received a number of petitions concerning Elizabethan monopolies on his journey south from Scotland to London,[10] he responded by issuing a proclamation acknowledging and apologizing for Elizabeth's behaviour in the "too large extending" of her prerogative in relation to the grant of monopolies, and suspending all grants and charters of monopoly until they could "be examined & allowed of by us, with the advise of our Counsell, to bee fit to be put in execution, without any prejudice to our loving Subjects".[11] As one commentator remarks, however, he did so only "to prepare a way for a series of really objectionable [monopolies] of his own creation".[12] The controversy over the use and abuse of monopolies continued throughout the Jacobean period, with a more politically robust House of Commons exhibiting an increasing willingness to raise grievances against and call into question the scope and use of the royal prerogative.[13] In 1606 a petition concerning several monopolies was presented by the Commons to the King,[14] followed by another in 1610.[15] The question received considerable attention in the House in 1614,[16] and again in the early 1620s,[17] which discussions eventually resulted in the passing of the Statute of Monopolies 1624.[18]
In substance, the 1624 Act declared all monopolies to be contrary to the laws of the realm subject to certain exceptions, and provided that what monopolies and privileges should be tolerated were to be "hereafter examined, heard, tried and determined by and according to the common laws of the realm, and not otherwise".[19] Exempt from the general prohibition on monopolies were "letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm",[20] in addition to which existing monopolies for new inventions were not to be prejudiced if granted for no longer than twenty-one years.[21] Significantly, the legislation also included a proviso preserving any existing or future grants "concerning printing"; in relation to such grants it was to be "as if this act had never been had nor made".[22] Just as patents "concerning the digging, making or compounding of saltpetre or gunpowder, or the casting or making of ordnance, or shot for ordnance"[23] were exempt from the provisions of the legislation so as not to interfere with the manner in which the Crown managed the defence of the realm, so too the security of the state was to be shored up against ideological attack in the guise of critical political speculation and commentary in print. In short, the king's authority over the press was to remain unaffected by the new legislation.
The other step that James took to address complaints about Elizabeth's abuse of the monopoly system, as regards the print trade in particular, was to grant two exclusive privileges (in October 1603), not to an individual printer but to the Stationers' Company itself, for printing primers, psalters and psalms, in verse or in prose (and with or without music), as well as for the ABC and the Catechism, almanacs and prognostications.[24] The grants were deemed to last in perpetuity, and formed the basis of what became known as the ‘English Stock'; with it the Stationers' Company, as an institution, became a publisher in its own right.[25] The English Stock was soon expanded to include certain legal texts (for example, Sir Edward Coke's (1552-1634) Reports, and the Yearbooks from the reign of Edward IV (1442-1483) through to Henry VIII), various schoolbooks (for example, Æsop's Fables and John Hawkins' (c.1587-c.1641) Spelling Book), as well as individual works such as John Speed's (1551/52-1629) Genealogies and Thomas Tusser's (c.1524-1580) Five Hundred Points of Good Husbandry. Members of the Company were entitled to buy shares in the English Stock from which they drew a quarterly (and later, an annual) dividends. That the Stock was under the control of the Company mean that, in theory, the Company could ameliorate tensions within the printing trade by making sure that there was always work available for its poorer and less successful members;[26] moreover, the Company could also use the Stock to keep unruly members in line by withholding their dividends as and when they considered it necessary to do so.[27] The grant of the English Stock was reaffirmed in March 1616 (upon surrender of the 1603 grants) and it was this later patent that lay at the heart of the controversy over the printing of almanacs in the late eighteenth century.
4. Thomas Carnan and the Almanac Monopoly
On 4 February 1774, the same day on which the twelve common law judges were ordered to attend the House of Lords to advise upon the case of Donaldson v. Becket (1774),[28] Thomas Carnan (1737-1788) filed an answer in Chancery to a complaint made by the Stationers' Company concerning his alleged infringement of their monopoly over the printing of primers and almanacs.[29] Less than three weeks later, on 22 February, the House handed down its decision in Donaldson, overturning the perpetual injunction previously granted by Lord Chancellor Apsley (1714-1794) to Becket in November 1772 (in accordance with the decision in Millar v. Taylor (1769)). In so doing, the Lords dispensed with the spectre of copyright at common law enduring in perpetuity. The timing, for Carnan, could not have been more fortuitous. Here now, the Stationers were seeking to assert a perpetual right to print almanacs, based upon a monopoly grant handed to them by James I in 1616; moreover, this was coming before a Lord Chancellor who had proved himself antithetical towards the claims of the London booksellers in Donaldson.[30] On 1 March 1774 Apsley LC referred the Stationers' case to the courts of common law with two questions: (i) whether the grant made to the plaintiffs was of a general nature, or limited to just those almanacs as were licensed by the Archbishop of Canterbury and the Bishop of London; (ii) and, whether the Crown had a prerogative power to grant the same to the plaintiffs to the exclusion of all others.
De Grey CJ. (1719-1781), Gould, Blackstone (1723-1780) and Nares (1716-1786) JJ., all of whom were involved in the Donaldson litigation, presided over the case in the Court of Common Pleas. In the argumentation before the Lords in Donaldson, much had been made of the prerogative grants concerning printing both as evidence for and against the existence of copyright at common law. Edward Thurlow (1731-1806), for example (for Donaldson) "was very diffusive upon grants, charters, licences, and patents from the crown, both to corporate bodies and individuals, tracing them far back, and asserting that they all specifically proved, that if there had been any inherent right of exclusively multiplying copies, such instances of exerting the royal prerogative would have been unnecessary".[31] In contrast, on Becket's behalf, it was argued that the concept of prerogative copies was evidence "that an interest or property similar to that claimed by authors, may subsist at common law".[32] In Donaldson the four Common Pleas judges said little about the matter, apart from Blackstone J., who considered that some support for the existence of the common law right might be drawn from "the adjudged cases at common law, wherein the crown hath been considered as invested with certain prerogative copy rights". For, he continued: "if the crown is capable of an exclusive right, in any one book, the subject seems also capable of having the same right in another!"[33] Lord Camden (1714-1794), speaking to the House after the judges had given their opinions, had plenty to say.[34] He dismissed all the arguments concerning the legal foundation of "the prerogative copies" as based upon any authorial or proprietary construct with his usual tact: "Away with such trifling!"[35] The "true footing" of the Crown's prerogative, he continued, was as follows:
"Ought not the promulgation of your venerable codes of religion and of law to be intrusted to the executive power, that they may bear the highest mark of authenticity, and neither be impaired, or altered, or mutilated? These printed acts are records themselves, are evidence in a court of law, without recurring to the original parliamentary roll. Will you then give this honourable right to your sovereign as such? or will you degrade him into a bookseller?"[36]
That is, the exclusive authority to print such works as the statutes of the realm flowed, not from any inherent authority the crown retained over the regulation of the press, but from the responsibility of the sovereign to ensure the accurate and authentic publication of materials that touched upon the government, state and the Church.[37] When Carnan's counsel argued his client's case before the court he appeared to rely upon the veracity of Camden's pronouncement, almost word for word:
"[N]one of the true grounds, on which a prerogative copyright can be founded, appear in the present case. Codes of religion and of law ought to be under the inspection of the executive power, to stamp an authenticity upon them. Therefore, Bibles, Common Prayer Books, and Statutes are proper Objects of exclusive Patents. But almanacks are not of this kind."[38]
On 29 May, in answering the Lord Chancellor's questions, the court decided that the grant by James I to the Stationers extended only to such almanacs as had received official sanction and that "the Crown had not a Prerogative or Power to make such Grant to the Plaintiffs exclusive of any other or others".[39] In short, the profitable monopoly which the Stationers had enjoyed in printing almanacs, since the establishment of the English Stock in 1603, was brought to an end. Carnan, in celebration, was reported to have driven "repeatedly, in triumph, round St. Paul's church yard and through Paternoster row, in his lofty phæton and pair".[40]
5. The Stationers attempt to regain control of the market
The Stationers responded to the decision in a number of ways. First, as with the long-standing arrangement which the Stationers had with the Universities of Oxford and Cambridge,[41] they tried to buy Carnan's complicity, reputedly offering him £10,000 if he would stop printing any almanacs that might compete with their own.[42] Carnan refused and, with the market for almanacs no longer protected, the Stationers instead stopped making their annual payments to the Universities.[43] This resulted in a second strategy, which the Stationers pursued in conjunction with the Universities - that of lobbying for a renewed statutory protection. On 16 April 1779, Lord North (1732-1792), then Prime Minister and Chancellor of the University of Oxford, raised the issue in the Commons of the loss of the Stationers' monopoly, in which he described the consequent loss of revenue to the Universities as "extremely inconvenient" and "prejudicial to the cause of learning".[44] As a result he moved that leave be given to bring in a Bill to vest the sole Right of printing Almanacks, in that part of Great Britain called England, in the Two Universities of Oxford and Cambridge, and the Company of Stationers of the City of London, respectively. Although North's proposal attracted some adverse comment,[45] leave was granted by the House,[46] and on 28 April he presented the Bill for its first reading.[47] Carnan presented a petition against the Bill the following day in which he argued that, in breaking the monopoly, he had been "greatly instrumental in rendering almanacks in general more useful, by being more correct than they were heretofore", as well as in exposing "not only many absurd, erroneous, but even many useless, immoral and very indecent passages" which had featured in the almanacs published by the Company. Carnan had presented the same arguments concerning the benefits of a competitive market before the Court of Common Pleas: "Their whole authority depends on their correctness. The way to make them correct, is to permit an emulation and rivalship".[48]
When the Bill came on for its second reading on 10 May Carnan's counsel, Davenport spoke to the issue, condemning that proposed legislation as "an attempt to restrict the free trade of the subject, as a great oppression, and a monopoly which ought not to be sanctioned by law".[49] In this he was followed by Thomas Erskine (1750-1823), the future Lord Chancellor, then a young and ambitious barrister keen to impress in this parliamentary hearing. Erskine was nothing less than brilliant. Although he stood before Parliament to represent his client's interests, Erskine's speech against the Bill was firmly grounded in considerations of public policy and the "universal good".[50] Passing the Bill, he argued, would represent an interference with the principles of free trade such that "no man would venture hereafter in any commercial enterprise, since he never could be sure that, although the tide of his fortunes was running in a free and legal channel, its course might not be turned by parliament into the bosom of a monopolist".[51] Not just the freedom of the market, but the "liberty of the press" required that the Bill be rejected. Reintroduce the monopoly on almanacs and surely "the various departments of science may, on much stronger principles, be parcelled out among the different officers of the state":
"There is no telling to what such precedents may lead;- the public welfare was the burden to the preamble to the licensing acts;- the most tyrannical laws in the most absolute governments speak a kind, parental language to the abject wretches, who groan under their crushing and humiliating weight ... who can look into the future?- this precedent (trifling as it may seem) may hereafter afford a plausible inlet to much mischief,- the protection of the law may be a pretence for a monopoly on legal subjects;- the safety of the state may require the suppression of histories and political writings;- even philosophy herself may become once more the slave of the schoolmen, and religion fall again under the iron fetters of the church."[52]
In speaking against the Bill, he continued, "I lose sight of my client, and feel that I am speaking for myself,- for every man in England".[53] Finally, as with Camden in Donaldson, Erskine explained the nature of the prerogative copies as reflecting sound constitutional principles determined in the interests of the common good. The expiration of the Licensing Act 1662,[54] at the end of the seventeenth century, he observed:
"[F]ormed the great era of the liberty of the press in this country, and stripped the crown of every prerogative over it, except that, which upon just and rational principles of government, must ever belong to the executive magistrate in all countries, namely, the exclusive right to publish religious or civil constitutions:- in a word, to promulgate every ordinance, which contains the rules of action by which the subject is to live, and to be governed."[55]
When Lord North first introduced the Bill a motion was made that its second reading be delayed "for three months", a suggestion that would in effect have brought it to an end; the motion was defeated by a vote of 129 to 42.[56] When, after Erskine spoke, it was motioned that the Bill be committed, the House rejected the proposal by a vote of 60 to 40, and the life of the Bill came to an end.[57]
6. Stamp Duty and the return of a de facto monopoly
The third tactic the Stationers' Company adopted, which ultimately proved successful, may have been suggested to them by Carnan himself. When he lodged his petition against North's Bill in April 1779, Carnan argued that to reintroduce the monopoly "would tend, as formerly, to discourage science, be a disgrace to literature, and will moreover essentially injure and lessen the revenue, by reducing the number of stamps, which will otherwise be required in a free sale".[58] Since 1711 all almanacs had to be printed on stamped paper,[59] which duty currently stood at 2d for a single sheet almanac and 4d for all others.[60] The revenues generated for the government were not insubstantial. As Blagden notes, as a result of this tax, the Company "had to find £6,000 each summer for the stamps on the half million Almanacks which it published in November".[61] Carnan's argument turned on the assertion that, with an unregulated market, the publication of almanacs would increase and as a result so too would the government's coffers. The Stationers however turned Carnan's premise on its head, co-opted the fiscal argument, and themselves encouraged an increase in the stamp duty on single sheet almanacs. On 6 April 1781, on the order of the day that the House resolve itself into a committee to discuss the supply granted to the Crown, Lord North proposed that the committee consider a means of providing an allowance to the two Universities "in lieu of a sum formerly paid to them by the Stationers' Company for the privilege of printing almanacks".[62] This allowance, North suggested, could be paid for by doubling the current stamp duty upon single sheet almanacs (from 2d to 4d), which increase he continued would generate an additional income of approximately £2600 a year.[63] Despite some protest,[64] it was agreed that the committee would consider the matter when they next met; moreover, when they did meet, Joshua Baldwyn, the Clerk of the Stationers' Company, was ordered to be in attendance.[65] Not surprisingly perhaps, the committee approved the suggestion, the Bill was introduced on 26 April, and it passed to the Lords on 4 May; the upper chamber approved it without amendment whereupon it received the Royal Assent on 5 July. Carnan did petition against the Bill however this time to no avail.
The legislation had an immediate impact in putting the cost of producing almanacs beyond the means of most small publishers.[66] Few had sufficient capital reserves to pay the increased duties, or if they had, they were not prepared to risk the sizeable investment that would be required to compete in a market that had been dominated for so long by the Stationers. The exception was Carnan who, since his victory before the courts, had managed to build up sales of around a hundred thousand copies every year.[67] He continued to publish in competition with the Company until his death in 1788. After he died, however, the Stationers bought out his interests and their almanac business, once again uncontested, began to thrive. That Carnan represented the single most significant threat to the Stationers control of the market is borne out by the Company's own publishing figures from this period. In the five years prior to the court's decision in 1775 the Company published, on average, just over half a million almanacs each year. Between 1775 and 1788 that figure dropped to around 385,000. In the ten years that followed Carnan's death the Company's annual sales rose again to in excess of 520,000 copies, peaking in 1798 with 559,500.[68] Buoyed by their de facto monopoly of the trade, the Stationers, for the next 40 years, enjoyed "an Indian summer of prosperity".[69] Only when the stamp duty on almanacs was abolished in 1834 did the Stationers' grasp upon the market finally slip, its repeal in this regard proving much more significant than the abolition of their legal monopoly sixty years before.
7. Carnan and the Concept of Prerogative Copyright
Although the decision in Stationers' Company v. Carnan did not herald the end of the Stationers' monopoly of the almanac market, the case did have a lasting impact upon the manner in which the crown's prerogative right in relation to printing was understood. In the mid-seventeenth century, following the abolition of the Star Chamber, the prerogative grants began to be called into question.[70] The common law courts upheld their validity, although their reasons for doing so were not always consistent or clear. In the Company of Stationers v. Seymour (1677), for example, the courts upheld the prerogative right to print almanacs upon the basis that "[t]here is no particular author of an almanack", as a consequence of which, "by the rule of our law, the King has the property in the Copy".[71] In Roper v. Streater (1672) the House of Lords upheld the validity of a patent for printing law books based upon the fact that the publication of the same "concerned the State, and was a matter of publick care".[72] The nature and extent of the royal prerogative of course was severely curtailed following the establishment of the constitutional monarchy in 1689, in the wake of the Glorious Revolution of 1688. The question as to legality of these printing patents was not reconsidered in the courts however until Basket v. University of Cambridge (1758).[73] In Basket, the King's Bench, led by Lord Mansfield (1705-1793), upheld both the validity of a patent granted by Queen Anne in 1713 to print all Acts of Parliament which patent now lay with the plaintiffs, as well as a grant from Henry VIII to the University of Cambridge in 1534 for printing "omnes et omnimodos libros".[74] Yates J (1722-1770), dissenting in Millar v. Taylor (1769), argued that, while the sovereign was "said to have a property" in prerogative copies, these were in no way analogous to the "private rights of authors".[75] This right of "prerogative property" he continued was "founded on a distinction that can not exist in common property, [or] in the case of a subject". Rather, it was the unique constitutional position of the monarch as head of both church and state that mandated his right to print certain types of material:
"The Books are Bibles, Common-Prayer-Books, and all Extracts from them, (such as Primers, Psalters, Psalms,) and Almanacs. Those have Relation to the National Religion, or Government, or the political Constitution. Other Compositions to which the King's Right of Publication extends, are the Statutes, Acts of Parliament, and State-Papers. The King's Right to all these is, as Head of the Church, and of the political Constitution."[76]
With Carnan, however, there begins to emerge a more subtle version of Yates J's account of prerogative copies. It was not that the sovereign had an undisputed constitutional right to print such works, but rather that the crown bore an obligation to ensure the dissemination of authentic and authoritative versions of the same, from which obligation flowed the right to print prerogative works.[77] In the early nineteenth century this latter theory of prerogative copyright took root. In Manners v. Blair (1828), for example, the Lord Chancellor Lyndhurst (1772-1863) in the Scottish Court of Session explained the concept of prerogative copyright as a consequence of:
"[T]he duty imposed upon the chief executive officer of the government, to superintend the publication of the Acts of the Legislature, and Acts of State of that description, and also of those works upon which the established doctrines of our religion are founded,- that it is a duty imposed upon the first executive magistrate, carrying with it a corresponding prerogative."[78]
In this he considered himself to be in accord with Lord Camden in Donaldson, as well as with Lord Eldon (1751-1838) in the decision of the Universities of Oxford and Cambridge v. Richardson (1803).[79] When Joseph Chitty (1796-1833) published his Treatise on the Law of the Prerogatives of the Crown, in 1820, he relied specifically upon Carnan, and in particular Erskine's speech before the Commons, as authority for the fact that prerogative copyright existed "on grounds of political and public convenience" as a consequence of which "its applicability must be restrained to the reasons for its existence".[80] As "executive magistrate", Chitty wrote, the Crown had "the right of promulgating to the people all the acts of state and government", and as "supreme head of the church, he hath a right to the publication of all liturgies, and books of divine service".[81] More recently, in Attorney-General (NSW) v. Butterworth & Co (Australia) Ltd (1937), Long Innes CJ continued in this tradition when he observed that the duty of the sovereign was "to superintend the publication of acts of the legislature and acts of state of that description, carrying with it a corresponding prerogative".[82]
9. References
Government papers and legislation
Magna Carta, 1297, 25 Edw.I, c.9
Statute of Monopolies, 1624, 21 Jac.I, c.3
Licensing Act, 1662, 13 & 14 Car.II, c.33
An Act for licensing and regulating hackney coaches and chairs ..., 1710, 9 Anne c.23
Cases
Darcy v. Allen (1603) 11 Co. Rep. 84b
Cloth Workers of Ipswich (1614) Godb. R 252
The Stationers v. The Patentees about the printing of Rolle's Abridgment (1666) Cart. 89
Roper v. Streater (1672) Bac. Abr. 6th ed., Vol.IV, 209
Company of Stationers v. Seymour (1677) 1 Mod. 256
Basket v. University of Cambridge (1758) 1 Black W. 105
Donaldson v. Becket (1774) 4 Burr. 2408
Stationers' Company v. Carnan (1775) 2 W. Bl. 1004
Millar v. Taylor (1769) 4 Burr. 2303
Universities of Oxford and Cambridge v. Richardson (1803) 6 Ves. 689
Manners v. Blair (1828) 3 Bligh N.S. 391, 402-03
Attorney-General (NSW) v. Butterworth & Co (Australia) Ltd (1937) 38 SR (NSW) 195
Stationers Company v. Parker 1 Jac. 2. (Kings Bench); Skinn. 233.
Stationers' Company v. Partridge M. 11 Ann. (King's Bench); 10 Mod. 105
Stationers' Company v. Marlow 32 Car. 2. Lilly's Entr. 63; 2 Snow. 233.
Stationers' Company v. Leigh and another (King's Bench) 34 & 35 Car. 2 Snow. 258; 2 Ch. Cas. 66
Books and articles
Anon., The Pleadings of the Counsel before the House of Lords in the great cause concerning Literary Property (London: Wilkin et al, 1774)
Blagden, C.,The Stationers' Company: A History, 1403-1959 (London: George Allen & Unwin, 1960)
Blagden, C., "Thomas Carnan and the Almanack Monopoly", Studies in Bibliography, 14 (1961): 26-43
Burrow, J., The Question Concerning Literary Property (London: Strahan and Woodfall, 1773)
Capp, B., Astrology and the Popular Press. English Almanacks 1500-1800 (London: Faber, 1979)
Chitty, J., A Treatise on the Law of the Prerogatives of the Crown (London: Butterworth, 1820)
Clegg, C.S., Press Censorship in Jacobean England (Cambridge: Cambridge University Press, 2001)
Corré, J.I., "The Argument, Decision, and Reports of Darcy v. Allen", Emory Law Journal, 45 (1996): 1261-1328
Deazley, R., On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (Oxford: Hart Publishing, 2004)
Fox, H.G., A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947)
Knafla, L.A., Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellsemere (Cambridge: Cambridge University Press, 1977)
Larkin. J.F., and Hughes, P.L., eds, Stuart Royal Proclamations, Volume I, Royal Proclamations of King James I, 1603-1625 (Oxford: Clarendon Press, 1973)
Loewenstein, J., The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002)
Monotti, A., "Nature and Basis of Crown Copyright in Official Publications", European Intellectual Property Review, 14 (1992): 305-16
Patterson, L.R., Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968)
Scott, W.R., The Constitution and Finance of English, Scottish, and Irish Joint-Stock Companies to 1720, 3 vols. (Cambridge: Cambridge University Press, 1910-1912)
Siebert, F.S., Freedom of the Press in England, 1476-1776: The Rise and Decline of Government Controls (Urbana: University of Illinois Press, 1952)
West, W., Fifty years' recollections of an old bookseller (Cork: printed for the author, 1835)
[1] See: uk_1518.
[2] Magna Carta, 1297, 25 Edw.I, c.9: "All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too". See also: 9 Edw.III, st.1, c.1; 25 Edw.III, c.2; 27 Edw.III, c.10.
[3] Fox writes as follows: "[T]he development of English industry owed much to the importation of foreign skill, particularly in regard to the manufacture of textiles and hardware, and methods of mining, drainage, and refining of materials, and ... in this development, the use of the monopoly patent played a substantial and significant role"; H.G. Fox, A Study of the History and Future of the Patent Monopoly (Toronto: University of Toronto Press, 1947), 54.
[4] Patterson writes: "Under the Tudors ... the patent system underwent a change by reason of the inclusion of monopoly clauses in the grants which perverted the medieval policy of encouraging industry. It is the monopoly clauses which distinguish the Elizabethan grants from the earlier ones"; L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968), 83.
[5] Hansard, 1st ser., 1 (1066-1625): 905.
[6] The question of monopolies was extensively debated in the Commons in 1601; Hansard, 1st ser., 1 (1066-1625): 923-42.
[7] Darcy v. Allen (1603) 11 Co. Rep. 84b.
[8] For a full exposition of the arguments and decision in Darcy see Corré, J.I., "The Argument, Decision, and Reports of Darcy v. Allen", Emory Law Journal, 45 (1996): 1261-1328.
[9] Cloth Workers of Ipswich (1614) Godb. R 252.
[10] J.F. Larkin and P.L. Hughes, eds, Stuart Royal Proclamations, Volume I, Royal Proclamations of King James I, 1603-1625 (Oxford: Clarendon Press, 1973), 12, n.2.
[11] A Proclamation inhibiting the use and execution of any Charter or Graunt by the late Queene Elizabeth, of any kind of Monopolies, &c (7 May 1603), ibid., 11-14.
[12] W.R. Scott, The Constitution and Finance of English, Scottish, and Irish Joint-Stock Companies to 1720, 3 vols. (Cambridge: Cambridge University Press, 1910-1912), 1: 119. Similarly, Loewenstein comments that James' commitment to reforming the use of monopolies "was notoriously shallow and short-lived"; J. Loewenstein, The Author's Due: Printing and the Prehistory of Copyright (Chicago and London: University of Chicago Press, 2002), 139.
[13] In general see L.A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellsemere (Cambridge: Cambridge University Press, 1977), 77-92.
[14] St. P. Dom. Jac.I, xxiii, 66; the List of Grievances presented by the Commons is reproduced in Fox, 329.
[15] Cal. St. P. Dom. Jac.I, 1603-1610, 622.
[16] Fox, 98-100.
[17] Hansard, 1st ser., 1 (1066-1625): 1192-94, 1204-08, 1218-28.
[18] Statute of Monopolies, 1624, 21 Jac.I, c.3; see: uk_1624.
[19] Statute of Monopolies, 1624, s.2.
[20] Ibid., s.6; the introduction of this fourteen year limit does represent one of the ways in which the statute brought something new to the existing common law principles regulating these monopoly grants.
[21] Ibid., s.5.
[22] Ibid., s.10.
[23] Ibid.
[24] In general see: C. Blagden, The Stationers' Company: A History, 1403-1959 (London: George Allen & Unwin, 1960), 92-109; C.S. Clegg, Press Censorship in Jacobean England (Cambridge: Cambridge University Press, 2001), 39-41.
[25] About the grant of this patent, Clegg writes: "This patent laid the groundwork for perhaps the most significant change in the Stationers' Company in the seventeenth century - the emergence of the Company as a capitalist venture"; Clegg, 39.
[26] In addition the Stationers' Company agreed to pay £200 a year out of the profits of the Stock to the poor of the Company; Blagden, 93.
[27] Clegg, 40.
[28] Journal of the House of Lords (LJ), 34: 19; see: uk_1774.
[29] Cal. St. P. Dom. Jac.I, 1611-1618, 353.
[30] For more on Lord Chancellor Apsley's decision in Donaldson see R. Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (Oxford: Hart Publishing, 2004), 191-210, 217-220; see also: uk_1774.
[31] Anon., The Pleadings of the Counsel before the House of Lords in the great cause concerning Literary Property (London: Wilkin et al, 1774), 3.
[32] Anon., The Cases of the Appellants and Respondents in the Cause of Literary Property (London: Bew, 1774), 17. The argument continued: "[T]hough the reasons, on which authors claim an interest in their own private copies, are not precisely the same as those from which the interest of the crown in public copies is derived, yet they are not less forcible; but give to authors a title of property, as well founded in justice as the title of the crown is founded in policy, and one equally consistent with public utility"; ibid., 17-18.
[33] Anon., The Cases of the Appellants, 38.
[34] For Camden's role in the Donaldson decision, see: uk_1774.
[35] Anon., The Cases of the Appellants, 50.
[36] Ibid.
[37] See A. Monotti, "Nature and Basis of Crown Copyright in Official Publications", European Intellectual Property Review, 14 (1992): 305-16 (305-07).
[38] Stationers' Company v. Carnan, 1007.
[39] Ibid., 1009.
[40] W. West, Fifty years' recollections of an old bookseller (Cork: printed for the author, 1835), 21.
[41] In general see C. Blagden, "Thomas Carnan and the Almanack Monopoly", Studies in Bibliography, 14 (1961): 26-43.
[42] Blagden, "Thomas Carnan", 28.
[43] As Blagden notes: "On 26 Oct. 1775 [the Company] made the last payment to Messers Wright & Gill, the farmers of the Oxford privilege, and on 28 June 1776 the last to the Vice Chancellor at Cambridge"; ibid., 30, n.15.
[44] Hansard, 1st ser., 20 (1778-1780): 602.
[45] See for example the comments of Mr. Turner and Mr. Dempster; Hansard, 1st ser., 20 (1778-1780): 603-604.
[46] Journal of the House of Commons (CJ), 37 :329.
[47] CJ, 37: 352.
[48] Stationers' Company v. Carnan, 1008. In this regard, there was certainly some validity in his assertions. As Blagden notes, in response to the decision, "more was done [by the Company] to improve the contents of the Almanacks. On 5 October 1775 the Company made an agreement with Charles Hutton, Professor of Mathematics at the Royal Military Academy, Woolwich, for checking the much criticized astronomical and meteorological data in the old Almanacks and for rewriting some of them"; Blagden, "Thomas Carnan", 33.
[49] Hansard, 1st ser., 20 (1778-1780): 608-609. See also Davenport's observations concerning the merits of protecting such works wherein "there was no genius, no invention, no pretence to original ideas"; ibid.
[50] Hansard, 1st ser., 20 (1778-1780): 610-11.
[51] Ibid., 614.
[52] Ibid., 616.
[53] Ibid.
[54] See: uk_1662.
[55] Hansard, 1st ser., 20 (1778-1780): 612.
[56] CJ, 37: 352 (28 April).
[57] CJ, 37: 388 (10 May).
[58] Hansard, 1st ser., 20 (1778-1780): 608 (29 April 1779).
[59] An Act for licensing and regulating hackney coaches and chairs ..., 1710, 9 Anne c.23, s.23.
[60] On the taxation of the press in general see F.S. Siebert, Freedom of the Press in England, 1476-1776: The Rise and Decline of Government Controls (Urbana: University of Illinois Press, 1952), 305-22.
[61] Blagden, "Thomas Carnan", 30-31.
[62] CJ, 38: 379.
[63] Hansard, 1st ser., 22 (1781-1782): 102.
[64] See for example the comments of Mr. Turner who considered the proposed Bill to be "an instrument of oppression ... brought in with a design to run down and harass an individual [Carnan], who had broken through an illegal monopoly, and deserved public thanks, and public support, instead of public persecution"; Hansard, 1st ser., 22 (1781-1782): 106.
[65] CJ, 38: 379.
[66] See B. Capp, Astrology and the Popular Press. English Almanacks 1500-1800 (London: Faber, 1979), 263.
[67] Ibid.
[68] See Table I: Almanacks printed and profits made, 1768-1802, in Blagden, "Thomas Carnan", 40.
[69] Ibid.
[70] The Stationers v. The Patentees about the printing of Rolle's Abridgment (1666) Cart. 89.
[71] Stationers Company v. Seymour (1677) 1 Mod. 256, 258.
[72] Roper v. Streater (1672) Bac. Abr. 6th ed., Vol.IV, 209.
[73] Basket v. University of Cambridge (1758) 1 Black W. 105.
[74] Ibid.
[75] J. Burrow, The Question Concerning Literary Property (London: Strahan and Woodfall, 1773), 95-96.
[76] Ibid., 96. Yates J. continued: "Upon the whole of this prerogative claim of the Crown, it appears to me, that the Right of the Crown to the sole and exclusive printing of what is called Prerogative Copies, is founded on reasons of Religion or of State. The only consequences to which they tend are of a national and public concern, respecting the established Religion or Government of the Kingdom; and have no analogy to the Case of private Authors"; ibid., 97.
[77] Monotti writes that: "From the late 18th century ... a consistent theme emerged, namely that the sovereign has a duty, based upon grounds of public utility and necessity, to superintend and ensure authentic and accurate publication of matters of national and public concern relating to the government, state and the Church of England"; Monotti, 306.
[78] Manners v. Blair (1828) 3 Bligh N.S. 391, 402-03.
[79] Universities of Oxford and Cambridge v. Richardson (1803) 6 Ves. 689.
[80] J. Chitty, A Treatise on the Law of the Prerogatives of the Crown (London: Butterworth, 1820), 239 (emphasis added).
[81] Ibid. Chitty continued: "[H]e is also said to have a right, by purchase, to the copies of such law books, grammars, and other compositions, as were compiled or translated at the expense of the Crown"; ibid.
[82] Attorney-General (NSW) v. Butterworth & Co (Australia) Ltd (1937) 38 SR (NSW) 195, 229. In the English case of Universities of Oxford and Cambridge v. Eyre & Spottiswoode Ltd [1964] Ch 736, 752, Plowman J refused to be drawn upon the nature of the prerogative right, commenting as follows: "The inquiry in this case ranged over a large number of matters of history, such as the control of the Press, the translation of the Bible, the patents of the Royal Typographers and their activities, and the nature and extent of the royal prerogative in relation to printing. Moreover, I was referred to a great many authorities to which I have not referred in this judgment. To traverse this ground again would, I think, only be to proliferate obiter dicta and to obscure what I regard as the crux of the matter, namely, that the Crown has never claimed, and no one can now claim in right of the Crown, that the royal prerogative extends to the licensing of a breach of copyright".