Primary Sources on Copyright (1450-1900)
Identifier: uk_1798a
Commentary on Beckford v. Hood (1798)
Ronan Deazley
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Beckford v. Hood (1798)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
2. Abstract
3. Understanding Donaldson (1774)
4. Copyright at Common Law and the Statute of Anne 1710
5. Writing Copyright's History
6. References
1. Full title
Beckford v. Hood (1798) 7 D. & E. 620
2. Abstract
Case in which the King's Bench decided that a plaintiff could recover damages at common law for copyright infringement even though his work had not been registered with the Stationers' Company in accordance with the formalities set out in the Statute of Anne 1710 (uk_1710).
The case provides the first occasion on which the judiciary revisited and reconsidered the meaning of the House of Lords' decision in Donaldson v. Becket (uk_1774). The commentary explores the substance and significance of the decision and, in particular, the influence it had upon the manner in which the decision in Donaldson was subsequently understood throughout the early nineteenth century. The commentary also details the impact the decision had upon the extent to which publishers would adhere to the library deposit provision within the copyright legislation.
3. Understanding Donaldson (1774)
In the years following Donaldson v. Becket (1774),[1] throughout the rest of the eighteenth century, relatively few cases concerning copyright came before the courts.[2] Moreover, during that same period even fewer of those cases were reported in legal texts relatively contemporaneously with the judicial decisions themselves.[3] Of the few that were, the two recorded by Durnford and East are the most significant: Coleman v. Wathen (1793) [4] and Beckford v. Hood (1798).[5] In Coleman the plaintiff took an action against the defendant for staging a production of the play, The Agreeable Surprise, which the plaintiff had purchased from its author, the Irish dramatist John O'Keefe (1747-1833). Kenyon CJ (1732-1802), without even hearing cause on behalf of the defendant, dismissed the claim explaining that the 1709 Act "only extends to prohibit the publication of the book itself" and not its performance.[6] Of interest however is the account of the argument on the plaintiff's behalf:
"Erskine shewed cause, on the ground that this was sufficient evidence for the jury to conclude that the work had been pirated; for it could not be supposed that the performers could by any other means have exhibited so perfect a representation of the work. Besides, if this were held not to be a publication within the statute, all dramatic works might be pirated with impunity; as this was the most valuable mode of profiting by them. And in Millar v. Taylor, a majority of the Judges were of opinion, in the House of Lords, that an author had an exclusive property in his works independently of the stat. of Anne."[7]
While Erskine did not win the point, the conflation of Millar v. Taylor (1769)[8] and Donaldson in the printed report is remarkable indeed, foreshadowing the manner in which the reality of Donaldson would, throughout the course of the nineteenth century, become subsumed within the rhetoric of Millar. This process, nascent in Coleman, was continued in Beckford, which concerned the reproduction of a literary work that fell squarely within the protection of the Statute of Anne. Unfortunately for the plaintiff, he had not registered his work in accordance with the Act,[9] and so could not pursue for the remedies provided therein. Instead he sought the common law remedy of damages (by an action on the case) and the question for the King's Bench was whether such an action could be sustained. In Millar v. Taylor the King's Bench under Lord Mansfield (1705-1793) had decided that an author did have a perpetual right at common law in his literary productions; the decision however was not unanimous, with Yates J (1722-1770) dissenting on the point.[10] Now the King's Bench consisted of Lord Kenyon, Ashurst J (1725-1807), who had similarly held in favour of the common law right in Donaldson, Grose (1740-1814) and Lawrence JJ (1751-1814). In resolving Beckford, and recasting Donaldson, this court would act with unanimity.
In presenting his client's case, Reader, counsel for Beckford, adopted two beguiling rhetorical strategies. In the first instance, he continuously stressed that the decision in Donaldson concerned the nature of the common law right post-publication only; in the second, he pressed two of the earlier dissenting voices as to the existence of the common law right, Yates J and Eyre B (bap.1734, d.1799),[11] into service in support of his client's position. As to the first Reader observed:
"Mr Justice Yates, who in the case of Millar v. Taylor in this Court was alone of opinion that an author had not a right of property at common law in his works when published, was yet decidedly of opinion that by the first clause of the statute of Anne, an exclusive right was vested in the author during the terms therein limited; and that notwithstanding the penalties and confiscation given by the same act the author has all the common law remedies for the enjoyment of that right."[12]
As to the second he argued that, while Eyre B might have given his opinion against the common law right after publication, he "was yet of [the] opinion that there might be a remedy in equity, upon the foundation of the statute independently of the terms and conditions thereby prescribed in respect of the penalties given".[13] Marryat, counsel for the defendant, countered that when a statute was "merely confirmatory of a pre-existing right" then any penalties contained therein might indeed be considered to be simply accumulative to those already existing at common law; this however was not the case for works protected by copyright. In support he drew a parallel between engravers and authors and suggested that, as was evident from the legislative provisions preventing the reproduction and sale of protected engravings,[14] "the Legislature thought that no such remedy as this now attempted lay by virtue of the statutes".[15]
Kenyon CJ's opening statement made clear his opinion on the common law right:
"All arguments in support of the rights of learned men in their works, must ever be heard with great favour by men of liberal minds to whom they are addressed. It was probably on that account that when the great question of literary property was discussed some judges of enlightened understanding went the length of maintaining that the right of publication rested exclusively in the authors and those who claimed under them for all time."[16]
And while he was sure that the Lords in Donaldson were right to confine the right to the period of time set out within the 1710 Act, he was equally certain that "the common law gives the remedy by action on the case for the violation of it" within those times.[17] Ashurst J not surprisingly was of the same mind. Of the four King's Bench judges however it was Grose J who specifically addressed Donaldson and its relationship with the issue before the court:
"I was at first struck with the consideration, that six to five of the judges who delivered their opinions in the House of Lords ... were of opinion that the common law right of action was taken away by the statute of Anne; but upon further view, it appears that the amount of their opinions went only to establish that the common law right of action, could not be exercised beyond the time limited by that statute."[18]
To complete the recasting of Donaldson, Lawrence J, who was in complete agreement with the three previous opinions, provided Lord Mansfield with the last word, relying upon his decision in Tonson v. Collins (1761) as an authority in point.[19]
4. Copyright at Common Law and the Statute of Anne 1710
Four years later, when the first treatise exclusively devoted to the law of copyright was published by Joshua Montefiore, he commented that "in the opinions of no less than eight of the twelve judges" in Donaldson, the common law right "was allowed and perpetuated by the common law of England; but six held it abridged by the statute of Anne".[20] The process in Beckford whereby the (misreported) commentaries of the eleven judges who provided opinions for the House of Lords in Donaldson would come to stand for the collective opinion of the House itself had begun in the legal literature also. As for Beckford itself, Montefiore continued: "The right of property in a new work is vested in the author for a certain period by 8 Ann c.19 and the author has a remedy by action at common law, for violation of such property".[21] Regardless of the decision in Donaldson, the concept of copyright at common law had once again taken root. It was clearly evident twenty years later when the issue from Coleman was replayed before the courts in Murray v. Elliston (1822).[22] In Murray the defendant had staged a production at the Theatre Royal, Drury Lane, based upon Byron's (1788-1824) book Marino Faliero, Doge of Venice, the copyright in which Byron had assigned to the plaintiff. James Scarlett, later Lord Abinger (1769-1844), argued the case for the plaintiff upon the "right of property" which his client had in the work, "whether that right of property arise from the common law, or from the statutes relative to it" being immaterial; that is, the plaintiff had a property in his work which may well be damaged as a result of the unauthorised adaptation. Adolphus, for Elliston, grounded the response squarely within Grose J's reading of Donaldson, that the majority of common law judges had decided that the action at common law was taken away by the Statute of Anne and that "the author was precluded from every remedy, except on the statute"; "the claim by the plaintiff" he continued "is at variance with this decision".[23] Abbott CJ (1762-1832) and the rest of the court held for the defendant: an action could not be maintained for adapting and performing Byron's work.
This orthodoxy of the interplay between the common law and the statute had not, however, yet been fully entrenched. Ten years after Montefiore's text was published Beckford and the Statute of Anne were subsequently considered in University of Cambridge v. Bryer (1812), in which the university sought compensation from the defendant for non-delivery of his published work as required under s.5 of the 1710 Act.[24] Henry Peter Brougham (1778-1868), counsel for the defendant, argued that only such works as were registered in accordance with the legislation (s.2) fell within the library deposit provision (s.5). "It has been said" Lord Ellenborough (1750-1818) observed:
"[T]hat the statute has three objects; but I cannot subdivide the two first; I think it has only two. The counsel for the plaintiffs contended that there was no right at common law; and perhaps there might not be; but with that we have not particularly anything to do. He has considered the three objects to be, first, the protection of authors, by vesting the right in them; then the fortifying their right by penalties; and, thirdly, the encouragement of literature. But I think it has properly but two, viz. the object of promoting the copyright, and that of the advancement of learning..."[25]
Even if the court were not properly concerned with adjudicating upon the existence of the common law right, how did Ellenborough CJ rationalise Beckford? He did so in the following terms:
"It was very properly observed in Beckford v. Hood, that unless the proprietor of the book had a right of action independent of that given for the penalties, his remedy might be anticipated, or rather precluded by a common informer;[26] who might by some species of collusion difficult to detect, have stopped the course of his remedy entirely; and therefore the action was upheld in that case."[27]
In Ellenborough CJ's opinion, it was on this basis that an action was maintainable independently of the penalties provided - upon the authority of the "substantial provision" which vested the copyright in an author (that is, s.1 of the Statute of Anne) rather than one of a pre-existing common law right.[28] This approach was consistent with his previous decision in Roworth v. Wilkes (1807) which concerned the reproduction of the plaintiff's treatise, The Art of Defence on Foot, including various engravings contained therein.[29] As to the prints in particular the relevant legislation required that the owner engrave his name upon them,[30] which the plaintiff had failed to do; as a result the defendant argued that Roworth was not entitled to any remedy under the Act. Lord Ellenborough observed: "Although the plaintiff's name is not engraved upon them, if there has been a piracy, I think the plaintiff is entitled to a verdict ... The interest being vested, the common law gives the remedy".[31] In the instant case, that the work had not been registered did not then mean that the plaintiff had no protection in accordance with the legislation, as a result of which he was liable for delivery of his published work, given that the library deposit provision "relates to the persons whose property is protected for the period for which it is protected".[32]
5. Writing Copyright's History
When Isaac Espinasse (1758-1834) published his Treatise in 1824, Lord Kenyon's court in Beckford,[33] and Lord Ellenborough's court in University of Cambridge, had presented two contrasting readings on the existence of an authorial property right independent of the statute. In his chapter on copyright, entitled Actions for the Infringement of the Copyright of Authors,[34] Espinasse opted for the former. The second section within that chapter addressed the question as to "How far the Common Law Copyright is confined or regulated by the Statute of Anne and subsequent Statutes, and how it stands at present". In his opinion the author had "the sole right of printing and publishing his own work ... by common law ... but the exercise of that right was by the operation of [the 1710 Act] limited and restrained to fourteen years, with an extension of a further fourteen years if the author was living at the expiration of the first". The result of the enactment of the Statute of Anne, he continued, was to give the author "an additional remedy by penalty, which he had not before" while leaving him "his common law right, limited to the term of twenty-eight years at the utmost".[35] In this Epsinasse was followed by Robert Maugham (1788-1862) who produced the first substantial text entirely devoted to the law relating to copyright, A Treatise on the Laws of Literary Property (1828).[36] Maugham, whose work incorporated a lengthy "Historical View of the Law",[37] was much more strident in impressing upon his reader that "an author was entitled to the exclusive enjoyment of his copyright in perpetuity".[38] In introducing his Treatise he acknowledged that "every person may ... be permitted to indulge his own opinion upon the propriety of the [present] law",[39] and one need read no further than his ‘Introductory Dissertation' to appreciate the full weight of his partiality as regards the common law right. Drawing a comparison with the earlier ages of "semi-barbarism" in which "the books of a scholar were ... respected as sacred property" and "every inducement [was] presented to the ingenious student for the improvement of his faculties, and the cultivation of letters", Maugham, with no little vitriol, lambasted the present era of "boasted enlightenment" which bore witness to hardly anything more than "the curtailment of rights, and the imposition of burthens".[40] He criticised the decision in Donaldson as one in which "some one, with more technical ingenuity than love of literature, enjoyed ‘the bad eminence' of overthrowing the evident spirit and intention of the act, by the supposed ambiguity of its language".[41] Maugham pressed the familiar figures of Mansfield, William Blackstone (1723-1780) and Kenyon into service in support of his argument, seeking to remind each member of the public of their positive duty in promoting the adoption of just and fair principles, "since the mischief that is done to his neighbour to-day, may be perpetrated on himself tomorrow".[42] Moreover, just as Maugham followed Espinasse, so too would Maugham himself be followed by writers such as Lowndes,[43] Curtis,[44] Copinger,[45] and Drone.[46]
6. References
Government papers and legislation
Statute of Anne, 1710, 8 Anne, c.19
Copyright Act, 1814, 54 Geo.III, c.156
Engravers' Act, 1735, 8 Geo.2, c.13
Engravers' Act, 1766, 7 Geo.3, c.38
Engravers' Act, 1777, 17 Geo.3, c.57
Cases
Millar v. Taylor (1769) 4 Burr. 2303
Donaldson v. Becket (1774) 4 Burr. 2408
Hawkesworth v. Newbery (1774) Lofft 775
Thompson v. Stanhope (1774) Amb. 737
Bach v. Longman (1777) 2 Cowp. 623
Eyre v. Carnan (1781) 6 Bac Abr, 7thedn, 509
Bell v. Walker and Debrett (1785) 1 Bro.C.C. 451
Sayre v. Moore (1785) 1 East's 361
Carnan v. Bowles (1786) 1 Cox 283
Storace v. Longman (1788) 11 East's 244
De Trusler v. Murray (1789) 1 East's 363
Brooke v. Milliken (1789) 3 TR 509
Coleman v. Wathen (1793) 5 D. & E. 245
Brook v. Wenworth (1796) 3 Anst. 881
Beckford v. Hood (1798) 7 D. & E. 620
Roworth v. Wilkes (1807) M. & R. 94
Cadell and Davies v. Robertson (1812), The Times, 7 March 1812
University of Cambridge v. Bryer (1812) 16 East's 317
White v. Geroch (1819) 2 B. & Ald. 298
Murray v. Elliston (1822) 5 B.& Ald. 657
Jeffreys v. Boosey (1854) 4 HLC 815
Books and articles
Copinger, W.A., The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870)
Curtis, G.T., A Treatise on the Law of Copyright (London, UK and Boston, US: Maxwell & Son and Little and Brown, 1847)
Drone, E.S., A Treatise on the Law of Property in Intellectual Productions (Boston: Little Brown and Company, 1879)
Lowndes, J.J., An Historical Sketch of the Law of Copyright (London: 1840)
Maugham, R., A Treatise on the Laws of Literary Property (London: 1828)
Montefiore, J., The Law of Copyright (London: n.p., 1802)
Oldham, J., The Mansfield Manuscripts and the growth of English law in the eighteenth century (Chapel Hill, US and London, UK: University of North Carolina Press, 1992)
Roworth, C., The Art of Defence on Foot, with the broad sword and sabre, uniting the Scotch and Austrian methods into one regular system (London: Egerton, 1798)
Veeder, V.V., "The English Reports, 1537 - 1865", in Select Essays in Anglo-American Legal History, 3 vols. (London: Wildy & Sons, 1968)
[1] See: uk_1774.
[2] See for example: Hawkesworth v. Newbery (1774) Lofft 775; Thompson v. Stanhope (1774) Amb. 737; Bach v. Longman (1777) 2 Cowp. 623; Eyre v. Carnan (1781) 6 Bac Abr, 7thedn, 509; Bell v. Walker and Debrett (1785) 1 Bro.C.C. 451; Carnan v. Bowles (1786) 1 Cox 283; Storace v. Longman (1788) 11 East's 244; Sayre v. Moore (1785) 1 East's 361; De Trusler v. Murray (1789) 1 East's 363; Brooke v. Milliken (1789) 3 TR 509; Coleman v. Wathen (1793) 5 D&E 245; Brook v. Wenworth (1796) 3 Anst. 881; Beckford v. Hood (1798) 7 D&E 620.
[3] Sayre v. Moore and De Trusler v. Murray were first recorded in the first volume of East's Reports in 1801. On Sayre v. Moore see also J. Oldham, The Mansfield Manuscripts and the growth of English law in the eighteenth century (Chapel Hill, US and London, UK: University of North Carolina Press, 1992), 770. On the law reports from this era in general, see V.V. Veeder, "The English Reports, 1537 - 1865", in Select Essays in Anglo-American Legal History, 3 vols. (London: Wildy & Sons, 1968), 2: 123-154.
[4] Coleman v. Wathen (1793) 5 D&E 245.
[5] Beckford v. Hood (1798) 7 D&E 620.
[6] Coleman v. Wathen, 245; see: uk_1833.
[7] Coleman v. Wathen, 245.
[8] Millar v. Taylor (1769) 4 Burr. 2303; see: uk_1769.
[9] Statute of Anne, 1710, 8 Anne, c.19, s.2; see: uk_1710.
[10] See: uk_1769.
[11] See: uk_1769; uk_1774.
[12] Beckford v. Hood, 623-24.
[13] Ibid., 624.
[14] For the Engravers' Acts see: 1735, 8 Geo.2, c.13; 1766, 7 Geo.3, c.38; 1777, 17 Geo.3, c.57.
[15] Beckford v. Hood, 625.
[16] Ibid., 627.
[17] Ibid. A number of subsequent writers and judges have taken Kenyon CJ's observations to indicate that he was "against the common law right" in the sense that he did not consider a copyright to exist at common law; see for example the comments of Parke B. and Lord Brougham in Jeffreys v. Boosey (1854) 4 HLC 815, and W.A. Copinger, The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870), 17. However, that Kenyon considered the decision in Donaldson was the correct one does not necessarily mean that he considered no common law copyright to exist. Rather given the overall tenor of his commentary, as well as those of the judges sitting with him, it is suggested that he did consider the common law right to exist, but also thought the House of Lords correct to consider it circumscribed by the Statute of Anne.
[18] Beckford v. Hood, 629.
[19] Tonson v. Collins (1761) 1 Black W 301. Lawrence J commented as follows: "I entirely concur with the opinions delivered by my Brethren, upon the principal point, and the case of Tonson v. Collins, 1 Blac. Rep. 330. is an additional authority in support of it; for there Lord Mansfield said that it had always been holden that the entry in Stationers' Hall was only necessary to enable the party to bring his action for the penalty, but that the property was given absolutely to the author, at least during the term"; Beckford v. Hood, 629.
The decision in Beckford v. Hood had another significant impact upon the development of copyright law within Great Britain which is dealt with elsewhere in this archive. In short, as the decision of the King's Bench ensured that copyright owners need not register their work with the Stationers' Company in order to receive the protection of the courts, the registration of books naturally went into decline. The corollary to this drop in the registration of books was that fewer and fewer copies of the same were being deposited with the Company for the benefit of the various libraries identified within the Statute of Anne's library deposit clause (s.6). This led to a very public debate about the library deposit provision in the early part of the nineteenth century, which in itself led to the passing of the Copyright Act, 1814, 54 Geo.III, c.156. For further discussion see: uk_1814.
[20] J. Montefiore, The Law of Copyright (London: n.p., 1802), 2.
[21] Ibid., 28.
[22] Murray v. Elliston (1822) 5 B.&Ald. 657.
[23] Ibid., 659.
[24] University of Cambridge v. Bryer (1812) 16 East's 317.
[25] Ibid., 320-21, emphasis added.
[26] This was as a result of s.1 of the legislation which set out that should anyone infringe against the copyright subsisting in any work "then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste paper of them; and further, that every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this Act; the one moiety thereof to the Queen's most Excellent majesty, Her Heirs and Successors, and the other Moiety thereof to any person or persons that shall sue for the same"; emphasis added. That is, the right of complaint against infringement was not restricted to the author or his assign, but to anyone who might sue for the same upon authority of the Act.
[27] University of Cambridge v. Bryer, 322.
[28] The decision in University of Cambridge v. Bryer was highly controversial in that it established that even books which were not registered at Stationers' Hall in accordance with the legislation were nevertheless required to be delivered to the copyright libraries in accordance with s.6 of the Statute of Anne; for further discussion see: uk_1814.
[29] Roworth v. Wilkes (1807) M.&R. 94; C. Roworth, The Art of Defence on Foot, with the broad sword and sabre, uniting the Scotch and Austrian methods into one regular system (London: Egerton, 1798).
[30] Engravers' Copyright Act, 1735, 8 Geo.II, c.13, s.1.
[31] Roworth v. Wilkes, 98, emphasis added. This decision however is at odds with the earlier ruling in Sayer v. Dicey (1770) 3 Wils.K.B. 60, in which it was held by Wilmot LJ that as the plaintiff had not inscribed upon the engraving the day of the month on which a particular print was first published, in accordance with the requirements of the legislation, he could not recover; judgment was for the defendants, and the plaintiff was non-suited. Sayer does not seem to have been referred to in Roworth, and certainly does not feature in Lord Ellenborough's judgment.
[32] University of Cambridge v. Bryer, 322-23; on the opinion that the remedy at common law would lie for so long as the statutory protection lasted see also the decision of the Scottish Court of Session in Cadell and Davies v. Robertson (1812), The Times, 7 March 1812.
[33] See also the observations of Abbot CJ in White v. Geroch (1819) 2 B. & Ald. 298, 300-01, that "[t]he object of the Legislature was, to confer upon authors, by the Act in question, a more durable interest in their compositions, than they had before ... The 8 Anne, c.19, gave to authors a copyright in works not only composed and printed, but composed and not printed; and I think that it was not the intention of the Legislature ... to abridge authors of any of their former rights".
[34] Espinasse, 72-148.
[35] Ibid., 89.
[36] R. Maugham, A Treatise on the Laws of Literary Property (London: n.p., 1828); see: uk_1828.
[37] Ibid., 1-62.
[38] Ibid., 6-7.
[39] Ibid., viii.
[40] Ibid.
[41] Ibid., xii. The "evident spirit and intent of the act" Maugham described as follows: "[T]hough the language of the statute limited the administration of justice to fourteen years, (as modern ingenuity construed it) its spirit was understood to apply only to the penal enactments against piracy, --- leaving untouched the ancient remedy for the recovery of actual damages"; ibid., xi.
[42] Ibid., xviii.
[43] J.J. Lowndes, An Historical Sketch of the Law of Copyright (London: n.p., 1840).
[44] G.T. Curtis, A Treatise on the Law of Copyright (London, UK and Boston, US: Maxwell & Son and Little and Brown, 1847).
[45] Copinger (1870).
[46] E.S. Drone, A Treatise on the Law of Property in Intellectual Productions (Boston: Little Brown and Company, 1879).