Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1835

 

Commentary on Publication of Lectures Act 1835

Ronan Deazley

School of Law, University of Birmingham, UK

 

Please cite as:
Deazley, R. (2008) ‘Commentary on Publication of Lectures Act 1835', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. John Abernethy, Medical Journalism in the early nineteenth century, and The Lancet

4. Understanding Abernethy v. Hutchinson (1825)

5. Thomas Wakley and the dissolution of the Abernethy injunction

6. Henry Brougham and the Publication of Lectures Bill

7. Thomas Wakley Again, and Objections in the House of Commons

8. A Redundant Act

9. References

 

1. Full title

Publication of Lectures Act, 1835, 5 & 6 Will.IV, c.65

 

2. Abstract

Legislation conferring the exclusive right of printing and publishing certain lectures for the same term of protection provided by the existing copyright legislation (see: Statute of Anne, uk_1710; Copyright Act, uk_1814). This was the first occasion on which the legislature extended copyright protection to works in the oral form. The legislation is of interest in terms of the distinction it draws between lectures delivered within the 'public' and the 'private' spheres (lectures delivered at a University, for example, are not protected), in terms of articulating the nature of the relationship between a speaker and his audience, and in specifically clarifying that newspapers are similarly prohibited from reporting protected lectures. The commentary explores the background to the passing of the Act, and in particular the role which Henry Brougham played in proposing and securing the same.

 

3. John Abernethy, Medical Journalism in the early nineteenth century, and The Lancet

The first time the issue of what rights, if any, someone delivering an oral lecture (as opposed to a dramatic or musical performance) might enjoy arose in Abernethy v. Hutchinson (1825).[1] John Abernethy (1764-1831) was a surgeon and lecturer at St Bartholomew's Hospital. Hutchinson was a student who, attending a series of Abernethy's lectures on the principle and practice of surgery, transcribed and published the first of those lectures in The Lancet, with the promise of publishing in the future each lecture as and when it was delivered. When the case first came before Lord Chancellor Eldon (1751-1838), on 18 December 1824, counsel for Hutchinson stressed that the oral nature of the work in question was fatal to the plaintiff's case. "Here there was an author, but no work - nothing to found a claim of property upon - nothing to which the statute of Anne and the rules of common law were at all applicable. Who ever heard of a piracy, or trial of a piracy, in publishing, without producing both the original and the piratical copy?"[2] When Charles Wetherell (1770-1846), the Solicitor-General, responded, he attempted to dismiss any meaningful distinction between lectures committed to writing, and those delivered ex tempore:

"The whole case as bounded by the argument of his learned friends, was confined to the simple question of whether the lecture was delivered orally without reference to a written paper, or if it was simply read from a written paper. In the latter case they gave up the point, and admitted that there could be no right of publication in the defendant. He should be glad to hear any gentleman attempt to establish this distinction of right by principles of common sense and justice. One gentleman like Mr Abernethy, enriched with stores of knowledge, the acquisition of twenty-five years of research and diligence, was enabled, let it be supposed, to speak his lecture ex tempore. Another, failing in that power, was obliged to set down his discourse in writing. The latter was to have a right and property in this lecture; the former was not to have any such right! From whence could this distinction arise? Was it in nature - was it law - was it equity? No, every man's sense warred against it."[3]

His client's case however was not only based upon "property", but upon the "understanding and usage subsisting for a long space of time between the lecturer and the persons attending the same, [that] no publication of lectures had ever been made by the persons attending them".[4]

 

Lord Eldon, after the first hearing, observed that "the case could be viewed in two ways - either as a question of property, or a question of trust".[5] As to the first, The Times reports that, although he "did not undertake to deny the right of property in an oral lecture" he did consider that "the want of a case in point must enhance the difficulty of determining". He continued:

"[H]e could go no farther than this, that a court of equity ought not to grant an injunction in any case were the right could not be sustained at law ... Could any court determine that there was a piracy without any proof of the work itself, or of the piracy of the work? ... As a question of copyright ... the court would require more information from Mr Abernethy respecting the written copy, supposing that no case could be found of a lecture merely oral."[6]

As to the argument based upon a breach of trust, similarly, Eldon considered the court would require further information: "The Court must endeavour to get at the terms on which the students were admitted to hear lectures, and to know if any and what prohibition arose, either as a direct condition or upon usage, raising a contract not to publish the lectures".[7] Following this, Eldon ordered the hearing to stand over until the 20 December, inviting Abernethy in the meantime to produce "any written copy or notes of his discourses which he might possess", and asking the defendants to let him know "by what means they got possession of the lectures" with a view to determining the argument based upon breach of trust.[8]

 

Abernethy failed to produce any written notes for the Lord Chancellor, but entered an additional affidavit arguing that over the course of many years he had assembled a "great mass of writing" which, while not identical to his lectures, were nevertheless "in substance, arrangement, and statement of the facts, substantially the same". These writings he was prepared to submit for the inspection "of any respectable and competent person" in support of his original claim.[9] When, on 20 December, the case was argued again, Lord Eldon reiterated that there had been no decision in point upon whether a person might have "a property in [his] sentiments and language, though not deposited on paper". He continued: "[A]s it is a pure question of law, I think it would be going farther than a Judge in equity should go, to say, upon that, that he can grant an injunction upon it, before the point is tried". That said, he suggested an injunction might nevertheless be granted "[i]f there is either an implied contract on the part of the student or a trust, and if you can make out that the student has published, I should not hesitate to grant the injunction". As a result, Eldon refused the injunction but granted leave for the plaintiff to restate his argument, not upon the ground of property, but upon the principles of breach of contract or trust.[10] The plaintiff's bill was amended accordingly.

 

4. Understanding Abernethy v. Hutchinson (1825)

When the case was reheard in June 1825 the Lord Chancellor finally granted Abernethy his injunction. His reasons for so doing however are muddied somewhat by the manner in which Frederick Hall and Philip Twells reported Eldon's decision in Abernethy twenty-five years after the fact:

"[T]hat, where the lecture was orally delivered, it was difficult to say that an injunction could be granted upon the same principle upon which literary property was protected; because the Court must be satisfied that the publication complained of was an invasion of the written work; and this could only be done by comparing the composition with the piracy. But it did not follow, that, because the information communicated by the lecturer was not committed to writing, but orally delivered, it was, therefore, within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion, that whatever else might be done with it, the lecture could not be published for profit. He had the satisfaction now of knowing, and he did not possess that knowledge when this question was last considered, that this doctrine was not a novel one; and that this opinion was confirmed by that of some of the Judges of the land. He was, therefore, clearly of opinion, that, when persons were admitted as pupils or otherwise to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling. There was no evidence before the Court of the manner in which the defendants had got possession of the lectures; but as they must have been taken from a pupil, or otherwise in such a way as the Court would not permit, the injunction ought to go upon the ground of property; and although there was not sufficient to establish an implied contract as between the plaintiff and the defendants, yet it must be decided, that, as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the court to say, the defendants shall not publish. He had no doubt whatever that an action would lie against a pupil who published these lectures. How the gentlemen who had published them came by them, he did not know; but whether an action could be maintained against them or not, on the footing of an implied contract, an injunction undoubtedly might be granted; because, if there had been a breach of contract on the part of the pupil who heard these lectures, and if the pupil could not publish for profit, to do so would certainly be what this court would call a fraud in a third party. If these lectures had not been taken from a pupil, at least the defendants had obtained the means of publishing them, and had become acquainted with the matter of the lectures, in such a manner that this court would not allow of a publication."[11]

The report is less than clear. That the injunction ought to go "upon the ground of property" seems incongruous both with the fact that Eldon had earlier specifically invited arguments upon breach of contract and trust, as well as with the tenor and substance of the rest of the reported opinion. And yet, subsequent commentators upon the decision have made much of the reference to "property" in this report of Eldon's judgment. Kay J (1822-1897), for example, in Nicols v. Pitman (1884) considered that the decision in Abernethy supported the premise that: "every person who delivers a lecture which is not committed to writing, but which is orally delivered from memory, has such a property in the lecture that he may prevent anybody who hears it from publishing it for profit".[12] Today, Laddie, Prescott and Vitoria, writing about the concept of common law copyright, remark as follows:

"Common law copyright derived from a custom of the seventeenth century London book cartel, but its true origins were lost sight of and in all English-speaking countries it became an instrument for the protection of authors with respect to any sort of unpublished works. The subjects of common law copyright were held to include not only books, but lectures,[13] engravings, pictures, photographs, plays, letters, ticker tape and a company report, and there can be no doubt that any works of literature, art or science were susceptible of protection. No formalities were required for the acquisition of the right, and it appears that the author did not even have to fixate his work, in writing or otherwise, provided the subject-matter was sufficiently defined for a court to give judgment in relation to it."[14]

This 'property' rationale is not how the decision in Abernethy was necessarily understood at the time. On 19 June 1841, for example, The Jurist published an article on whether "if a Clergyman deliver a sermon from his pulpit, in the execution of his duty, it is open to any person who may have been present in the Church to obtain, by taking notes or otherwise, a copy of such sermon, and to publish it".[15] The commentator, doubting that sermons fell within the protection of the legislation, observed that the decision in Abernethy "was expressly put on the ground of a contract between the lecturer and pupils".[16] This reading is borne out by the report of Eldon's decision published in The Lancet itself on 25 June 1825:

"The Lord Chancellor entered court at an unusually early hour this morning, to deliver his judgment in this important case, He began by observing upon the settled, undisputed law, admitted by every lawyer, that were lectures were written, previous to delivery, an injunction might be well supported to restrain publication, for there a distinct piracy could be proved at law. He then adverted to the situation in which Mr Abernethy stood, as Lecturer of St Bartholomew's Hospital ... The case was therefore reduced to this simple question, whether, where lectures were orally delivered, an injunction could be allowed to restrain publication?

 

Now, where the lecture was orally delivered, it was very difficult indeed to say, that an injunction could be granted upon the same principle upon which it would be allowed to protect literary composition, because every Court must be satisfied that the publication complained of was an invasion of the written work, and this could only be done by comparing the composition with the piracy. But it did not follow, that, because the information communicated by the Lecturer was not committed to writing, but orally delivered, it was therefore within the power of the person who heard it to publish it. On the contrary, without going fully into the grounds upon which he had formed his judgment, he was clearly of opinion, that whatever else might be done with it, the lecture could not be published for profit. He had the satisfaction now of knowing, and he did not possess that knowledge when this question was last considered, that this doctrine was not a novel one, and he was happy in being able to say, that this opinion was confirmed by that of some of the Judges of the land. He was, therefore, clearly of opinion, that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short-hand, yet they could only do that for the purposes of their own information, and could not publish for profit that which they had obtained the right of selling. The consequence, therefore, was, that with respect to any future lectures, Mr. Abernethy might deliver, there could be no doubt that the injunction ought to be allowed. ...

 

Upon the whole, his Lordship added, he was extremely glad that this case had been brought again before the Court, because he knew the difficulties which were supposed to surround these cases, and the uneasiness consequently excited in the minds of literary men. He was very glad of having an opportunity of removing that kind of uneasiness, and removing it too certainly upon better authority than his own. He should also mention in this case, that, in the first place, he had no doubt whatever an action would lie against a party, who published these lectures, provided, he meant, they were published by a pupil. The gentlemen who had published them, were publishers of a work called The Lancet. In what manner the men came by them he did not know, but whether an action could be maintained against them or not, on the footing of implied contract (it might certainly be maintained against a pupil who published for profit); and injunction undoubtedly might be granted, because if there had been a breach of contract on the part of the pupil who heard these lectures read, and if the pupil could not publish for profit, it would certainly be what this Court would call a fraud in a third party. If these lectures had not been taken from a pupil, at least the defendants had obtained the means of publishing them, and had become acquainted with the matter of the lectures in such a manner that this Court would not allow of a publication. He should, therefore, for these reasons, allow the injunction to the extent which he had stated."[17]

There is, of course, no reference to the injunction being granted upon Abernethy's 'property' in the lecture. Rather, an action would lie against a pupil who sought to publish for profit on the footing of a "breach of contract", and, while a contract may not exist as between the publishers and Abernethy, his Lordship felt the injunction could be granted because to allow them to publish what the pupil could not, would amount to a "fraud in a third party", or as the reporter for The Times put it, it would amount to "a fraudulent use of what must have been improperly obtained".[18]

 

5. Thomas Wakley and the dissolution of the Abernethy injunction

The Abernethy litigation did not finish in June 1825; instead, Thomas Wakley (1795-1862), M.P. for Finsbury, and founder of The Lancet, vowed to fight against the injunction. In the same issue of The Lancet wherein he had reported the decision, he continued:

"To the House of Lords we are resolved to appeal ... and we have evidence of such a nature to adduce, that we are positive it must have the effect of inducing their Lordships to reverse the decision of the Court of Chancery - a decision, as we conceive it, opposed to the best interests of the Profession - to the best interests of the Public, and directly hostile to every known principle of policy and justice."[19]

Again, in October 1825, he wrote that The Lancet did "not claim the right of publishing the Lectures of any individuals, except those who, by an infamous bye-law, have procured for themselves a monopoly of lecturing to Students in Surgery, and who have thereby excluded the Profession and the Public from all the benefits of competition". He continued: "The question has not yet been fairly argued on this ground, except in our pages, and we are so convinced of the justice of our claim, that we are resolved not only to bring it again before the Court of Chancery, but, if we should be again defeated, to appeal to the highest tribunal in the land".[20] On 29 November 1825 The Times carried the following short pronouncement: "Abernethy v. The Lancet. Mr Horne moved that the injunction granted in this case be dissolved. As no counsel appeared for the plaintiff, and regular notice had been served upon him of the motion, the injunction was dissolved accordingly".[21] On 3 December, Wakley updated The Lancet readers in his own inimitable fashion: "Injunction Dissolved: Triumph of the Medical Press".[22] "We feel confident" he wrote "that this result will be hailed with satisfaction by thousands of our readers, as the triumph of principle in a legal struggle, which has been declared by the highest authority in the realm to be one of no ordinary importance".[23] He continued:

"It is a maxim, we believe, in equity, that a plaintiff must come into court with clean hands; he must do equity, in order to entitle himself to it. How is this condition fulfilled by a Hospital Surgeon who first, by his own act, constitutes himself a public functionary for a public purpose, and then seeks, under the colour of claiming the protection due to private Lecturers, to deprive the public of the means of judging whether his duties, as a Hospital Surgeon are properly discharged? ...

 

We cannot conclude without expressing our hope, that Mr Abernethy has not only seen that any attempt to maintain the Injunction, when the real merits of the case came to be established, would be unavailing, but that he has retired from the contest with a due sense of his errors, and a desire to retrieve any reputation he may have lost in the eyes of the Profession and the Public, by a return to more liberal and enlightened principles."[24]

As Wakley would later recall: "[I]t was proved in the Court of Chancery that it was a public lecture delivered on a public occasion and the plaintiff in the suit thus finding he could not sustain his cause abandoned it altogether".[25] That Wakley succeeded in having the injunction dissolved however was recorded neither in the Law Journal Reports for 1825 nor in Hall & Twells' Reports of 1850.[26]

 

6. Henry Brougham and the Publication of Lectures Bill

In Caird v. Sime (1887) Lord Fitzgerald (1816-1889), expressing his dissatisfaction with the nature of the decision in Abernethy, observed that it was "not improbable that the difficulties supposed to exist in consequence of Lord Eldon's reasons led to" the passing of the Publication of Lectures Act 1835.[27] Fitzgerald would have done better to direct his observations towards the interventions of Henry Peter Brougham (1778-1868), Lord Chancellor between 1830 and 1834, and one of the counsel for the defendants in Abernethy in June 1825.[28] Brougham put it to Eldon that the arguments based upon grounds of trust and contract could not and should not be separated from that of "legal property" - he maintained that "there was no property; [and] that was the very ground of the defence". The account of Brougham's speech before the court reported in The Times continues as follows:

"The subject of the suit was an airy, evanescent shadow; there was no property. Science was great and important; but there were other subordinate literary matters. What was wit? - what were jokes and epigrammatic touches? If a man uttered a good joke in the street, could the person who heard it be restrained from telling it to another? Then a look, or peculiar glance, which often constituted the true humour of a story, should it be taught by a Quin,[29] or other stage hero, must be protected by Chancery. So that bills must be filed not only to protect jokes, but the very looks which recommended them ...

 

[He] terminated his speech by expressing his regret, should science be injured by the decision in the present case; but there was another science, that of law and equity, which should be defended. He thought it desirable that public lectures should be more accessible than they were; and he continued in opinion with Mr Justice Yates, upon whose character he passed a high eulogium, concluding with the learned Judge's words - "I wish, as sincerely as any man, that learned persons may have all the advantage they are entitled to; but if the monopoly claimed be contrary to the great laws of property, to law, and to equity, and if it contradict the principles of justice, and embroil society by contention, disgust liberal minds, and strip the public of their rights, I will assist in establishing no such proposition.""[30]

Brougham, in summing up, was of course quoting from Yates J's (1722-1770) dissenting opinion in Millar v. Taylor (1769).[31] That Brougham would reject the notion of a common law property right in an oral lecture, publicly delivered, was entirely consistent with the opinions he would express upon the subject of literary property in the House of Lords in Jeffreys v. Boosey (1854);[32] that he would stress the importance of making public lectures "more accessible than they were", was equally consistent with his views on educational reform, and in particular in providing working men with more and better opportunities to educate themselves on matters of philosophy and the natural sciences. As an educational reformer, Brougham, of course, was involved in the operation of the Mechanic's Institute, and had played a central role in establishing the Society for the Diffusion of Useful Knowledge (the SDUK) in 1826, the year after Abernethy was decided. [33] Strange then that it should be Brougham who would introduce the Publication of Lectures Act 1835 onto the statute book, yet introduce it he did.[34]

 

Of the twelve bills introduced in the House of Lords during the first session of Lord Melbourne's (1779-1848) second administration, Brougham was responsible for four of them, which variously concerned the promotion of education and charity reform,[35] the law of marriage,[36] the law of patents,[37] and the publication of lectures. He introduced the Lectures Bill on 10 August and it passed through the House in little over a week.[38] The Bill, received into the Commons on 20 August, was a relatively brief affair, but notable in a number of respects. It provided the author of any lecture with the "sole right and liberty of printing and publishing" the work, and subjected anyone who, without authorisation, "shall print or lithograph or otherwise copy and publish the same", "or any part thereof",[39] to the same financial penalties as had been set out within the Statute of Anne 1710.[40] The duration of this right was perpetual in nature, subject to the fact that, should an authorised version of the lecture be published, then anyone might reproduce the same once the term of protection in the published work had expired in accordance with the existing copyright legislation.[41] In this respect, what the Lectures Bill was providing was a guaranteed right to first publish the work, akin to the continental concept of droit de divulgation, but addressing lectures delivered ex tempore, as well as those existing in manuscript form. That protection, however, was subject to the requirement that notice of the lecture be given to two justices, living within five miles of the place of the lecture, and at least two days before delivery of the same.[42] Finally, the Bill made clear that anyone paying a "certain fee and reward" to attend a lecture was not at the same time buying the right to print and publish that lecture,[43] and, more significantly, it provided that any newspaper reproducing a lecture, or any part thereof, would, like anyone else, be held to have acted in contravention of the legislation.[44]

 

The question begs itself to be asked, of course, is why would Brougham introduce such a measure? Seville, in her work on the Copyright Amendment Act 1842,[45] suggests that the reason for Brougham's intervention, although a matter for conjecture, perhaps turned upon the fact that he "presumably baulked at the thought of their being published at a profit by a publisher with less laudable aims than those of the SDUK".[46] Thomas Wakley writing once again in The Lancet provides an alternative explanation:

"Why then is this Bill brought forward? There are no demands for it, so far as we can learn, on the part either of private or of public teachers,- by teachers in Universities, in hospitals, or in any other institutions. To solve the mystery we may as well state at once, that a noble and learned lord has resolved on delivering a series of political lectures in the North of England, and fearing that he should not continue to attract audiences, as he himself has stated, he has brought in this bill to protect himself from annoyances in the newspapers. Hence in the second clause of the bill [the newspaper clause] the sting of the measure is discoverable. The noble lord entertains a peculiar whim, and a peculiar Act of Parliament is to be the result. Verily we live in strange times."[47]

If this seems like a strange accusation to level against someone who, at the height of his political career enjoyed seemingly unparalleled popularity throughout the length and breadth of the country,[48] as well as someone who was passionate about educational reform, then it must be remembered that during the early 1830s Brougham's reputation and standing in the country was experiencing something of a tailspin. Contributing to this decline was the fact that, in 1834, Brougham's once fruitful relationship with Thomas Barnes (1785-1841), then editor of The Times, had broken down, and Barnes began what would prove to be a seven year campaign of criticizing and denigrating Brougham on an almost daily basis in his newspaper. Moreover, where The Times led, others followed; as Huch notes, "many smaller newspapers began to change their favourable attitude toward the Chancellor".[49] The barrage of newspaper abuse that ensued caused Brougham considerable consternation. In short, "he was frightened that Barnes could do what he said he could do", that is, "destroy [Brougham's] popularity with the people".[50] By the time that Brougham brought in the Bill he had already endured a year of "annoyances in the newspapers", and was seriously contemplating bringing an end to his parliamentary career.[51] That he wished to insulate himself from adverse criticism in the press seems, in the circumstances, entirely plausible. Especially so when one considers that, in the same month that the Act was passed, James Stuart, the editor of The Courier, accused Brougham of plagiarizing a paper written by John Ramsay McCulloch (1789-1864), the economist, in a speech that he had given in Glasgow. In his defence, Brougham did not deny the accusation, but simply responded that when he did give lectures first written by others he was always careful to announce the same in advance of the lecture itself.[52]

 

7. Thomas Wakley Again, and Objections in the House of Commons

It was the newspaper clause in Brougham's Bill that provoked considerable discussion in the House of Commons, and it was naturally Thomas Wakley who led the same. Noting that the Bill had passed through the Lords without any real deliberation,[53] he continued that "unless proper amendments were introduced he should divide the House against the Motion, for it seemed to him that it was intended not only to prevent the publication of lectures but of criticisms on lectures":

"[I]f it were intended to apply only to private lectures it would be a proper protection, but if it were meant to shield public [lectures] as well as private from public inspection he should consider that it ought not to receive the sanction of the House ... for every public lecturer ought to allow the means of exhibiting the instruction which he dispensed, whenever the interests of the public required it ... It was preposterous to see such a Bill as this passing the Lords without a word of discussion, and unless the Lord Advocate assured him that public lecturers were not to be shielded from public notice he should divide the House against the Bill..." [54]

The Lord Advocate responded that "every man had as much right to claim security for his lectures, as for his books, or for any other fruit of his labours"; in short, lectures, like books, were a "lecturer's own property".[55] Henry Warburton (1784-1858), a radical like Wakley, as well as a fellow campaigner on matters of medical reform, provided a rebuttal, knowing "of no abstract right of property in those cases"; surely, he continued, those attending lectures in the sciences "ought not to be precluded from holding the lecturer up to public censure".[56]

 

When the Bill was in Committee, Wakley, once again, drew attention to the newspaper clause, and moved that it be omitted. Upon this motion Lord John Russell (1792-1878), future Prime Minister, and one of the main protagonists behind the Reform Act 1832, commented that while lecturers "should have the same protection as authors had", yet "it should be fully competent to newspapers and other publications to make extracts from such lectures, and pass comments upon them, with a view of affording the public an opportunity of judging as to their merits".[57] Without such opportunity for public critique, he continued, he could not support the Bill. Wakley agreed with Russell, and followed by drawing what was by now a well-worn distinction between "private lecturers" who should be protected, and "such lecturers such as those at St. Bartholomew's Hospital (who in the aggregate derived an income of 8,000l. a year from this source) were in any respect entitled to a similar protection".[58] John Abernethy was clearly not far from Wakley's thoughts. The motion to omit the second clause was defeated;[59] however, the Bill was nevertheless to be shaped by Wakley's interventions. In committee it was agreed to omit references to the publication of "any part" of a lecture, thus allowing for the free reproduction of "extracts" of the same.[60] Moreover, lectures delivered "in any University or public school or college, or on any public foundation, or by any individual in virtue of or according to any gift, endowment or foundation" were not to fall within the parameters of the legislation.[61] In short, Abernethy, and those who held similar positions, were not to benefit from the protections of the Act, and Wakley would be free to continue to hold the medical profession up to scrutiny by publishing their lectures in The Lancet.[62]

 

In this regard, however, we should not be too quick to read Wakley's intervention as one motivated solely by self-interest. Indeed, after Abernethy, the leaders of the London medical profession were in general quite happy for Wakley to publish their lectures, often sending the original manuscripts of the same to The Lancet offices before the lectures were actually delivered.[63] Rather, Wakley's protest about the Lectures Publication Bill was entirely consistent with his general position on and attitude to the freedom of the press and the importance of facilitating public discourse and debate at all levels of society. One of the first times Wakley addressed the House was in relation to the four pence duty then levied on newspapers.[64] In the wake of the Reform Act the issue of the stamp duty was debated twice before the Commons on the basis that the abolition of the duty was necessary to ensure a properly free press. Although Wakley was unsuccessful in securing the repeal of the duty in its entirety, his actions did nevertheless result in Thomas Spring Rice (1790-1866), then Chancellor of the Exchequer, agreeing to reduce the duty from four pence to one penny on every newspaper.[65] Similarly, during the parliamentary debates that ultimately resulted in the passing of the Copyright Amendment Act 1842, Wakley consistently opposed any extension of the copyright term the case for which he considered remained unproven as well as contrary to the interests of the general public.[66] Wakley, in objecting to the strictures which Brougham sought to place upon the press in the guise of the Lectures Act, remained true to his radical politics, and his belief in the power and value of a free and unencumbered press.

 

8. A Redundant Act

The Publication of Lectures Act represents a curious landmark in the history of British copyright. For the first and only time it provided a statutory protection for works of an 'oral' nature, absent any requirement that the work be reduced to a material form. It was, however, by and large, a redundant piece of legislation. The proviso concerning universities and other public institutions,[67] as well as the cumbersome statutory notification requirement, ensured that the Act was rarely, if ever, relied upon.[68] The first time after the Act that anyone sought legal recompense for the unauthorised reproduction of their lecture came nearly fifty years later, in Nicols v. Pitman (1884), a case in which the plaintiff was not claiming under the legislation, but in accordance with the law "as laid down by Lord Eldon".[69] Similarly, in the House of Lords, in Caird v. Sime (1887), the lectures under consideration were those delivered by John Caird (1820-1898), Principal and Vice Chancellor of the University of Glasgow, and so exempt from statutory protection. Indeed, throughout the life of the Act until its repeal in 1911, there does not appear to be one single case that proceeded upon the basis of the Act. That said, this did not prevent the Copyright Commissioners recommending in 1878 that the statutory protection afforded to lectures should not only be continued, but indeed, extended:

"Lectures are peculiar in their character, and differ from books, inasmuch as though they are made public by delivery, they have not necessarily a visible form capable of being copied. Nevertheless it has been thought right by the legislature in recent years to afford them the protection of copyright, and, considering the valuable character of many lectures, it is our opinion that such protection should not only be continued, subject to certain changes in the law, but extended."[70]

"It is obvious", they continued, "that for their entire protection lectures require copyright of two kinds, the one to protect them from printed publication by unauthorised persons, the other to protect them from re-delivery".[71] In addition, the Commission's Report recommended that the statutory notification requirement be abandoned, that the copyright term in lectures should be the same as for that in books, and that newspapers should continue to be free to report upon and reproduce lectures unless the author "gives notice that he prohibits" the same. As for the exception extending to lectures delivered in universities and so on, the Commissioners recommended that it remain unchanged.[72]

 

9. References

Government papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

Copyright Act, 1814, 54 Geo.III, c.156

Patents Act, 1835, 5 & 6 Will.IV, c.83

Publication of Lectures Act, 1835, 5 & 6 Will.IV, c.65

Copyright Amendment Act, 1842, 5 & 6 Vict., c.45

Report of the Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyrights, C. 2036 (1878)

Cases

Millar v. Taylor (1769) 4 Burr. 2303

Abernethy v. Hutchinson (1825) 1 H. & TW. 28

Jeffreys v. Boosey (1854) 4 HLC 815

Nicols v. Pitman (1884) 26 Ch.D. 374

Caird v. Sime (1887) L.R. 12 A.C. 326

Books and articles

Eardley-Wilmot, J.E., Lord Brougham's Acts and Bills, From 1811 to the present time (London: Longman, 1857)

Copinger, W.A., The Law of Copyright in Works of Literature and Art, 1st ed. (London: Stevens & Haynes, 1870)

Laddie, H., Prescott, P., and Vitoria, M., The Modern Law of Copyright and Designs, 3rd ed., 3 vols. (London: Butterworths, 2000)

Seville, C., Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999)

Siebert, F.S., Freedom of the Press in England, 1476-1776: The Rise and Decline of Government Controls (Urbana: University of Illinois Press, 1952)

Stewart, R., Henry Brougham, His Public Career 1778-1868 (London: The Bodley Head, 1986)


[1] Abernethy v. Hutchinson (1825) 1 H. & TW. 28.

[2] per Horne. Shadwell continued in the same vein: "A work must be embodied in writing before the author could claim the benefit of the protection of the common law, or that which was intended to strengthen the common law by the statute of Anne"; Abernethy v. Hutchinson (1825) The Times, 20 December 1824.

[3] Ibid.

[4] Abernethy v. Hutchinson, 29-30.

[5] Ibid., 33.

[6] Abernethy v. Hutchinson, The Times.

[7] Ibid.

[8] Abernethy v. Hutchinson, The Times; see also Abernethy v. Hutchinson, 34.

[9] Ibid.

[10] Ibid., 36-38.

[11] Abernethy v. Hutchinson, 39-40, emphasis added.

[12] Nicols v. Pitman (1884) 26 Ch.D. 374, 380.

[13] At this point Laddie et al insert a footnote which reads as follows: "Caird v. Sime; Abernethy v. Hutchinson; Nicols v. Pitman. There was additional statutory protection for lectures under the Lectures Copyright Act 1835 ... but this required notice to local justices and since the common law right was adequate it was hardly ever used".

[14] At this point Laddie et al insert a footnote which reads as follows: "Nicols v Pitman (1884) 26 Ch D 374 explaining Abernethy v Hutchinson (1825) 1 H & Tw 28"; H. Laddie, P. Prescott and M. Vitoria, The Modern Law of Copyright and Designs, 3rd ed., 3 vols. (London: Butterworths, 2000), 1: 318.

[15] The Jurist, 5 (1841): 497.

[16] Ibid., 498. See also Lord Watson in Caird v. Sime (1887), for example, observed that in Abernethy "a perpetual injunction was granted, on the ground that all persons who attended these lectures were under an implied contract not to publish what they heard, although they might take it down for their own instruction and use"; Caird v. Sime (1887) L.R. 12 A.C. 326, 347.

[17] The Lancet, 25 June 1825, 379-80; see also the report in The Times, 18 June 1825.

[18] The Times, 18 June 1825.

[19] The Lancet, 25 June 1825, 380-81.

[20] The Lancet, 1 October 1825, 2.

[21] The Times, 29 November 1825. The Chancery Court's Book of Orders from this period simply records that Horne, counsel for the defendants, "moved and offered divers reasons" for dissolving the injunction; The National Archives, c.33 738/40.

[22] The Lancet, 3 December 1825, 358-63.

[23] Ibid., 358.

[24] Ibid., 361-62.

[25] Hansard, 3rd Ser., 30 (1835): 953. Ten years later Wakley would write about the final hearing before Lord Eldon in the following terms: "[O]n the third reading of the cause, the Lord Chancellor was enabled, through receiving additional evidence, to perceive the real merits of the case. It was proved that Mr. Abernethy was the public officer of a public institution,- that he lectured on a public foundation,- and that he was placed in his office by the trustees of public property,- and thus the widest possible distinction was discovered between the case of Mr. Abernethy, and that of an individual who lectured at his own house, or in his own private theatre. Unable to sustain his ground, even with the aid of all the conspirators attached to the other hospitals, who had, by their cajolery, and their promises to defray the expense of the law proceedings, induced him to sacrifice his reputation by appearing in the Court of Chancery,- then it was that the injunction was dissolved, and the important distinction between private and public teachers was drawn (a distinction for which we had always vehemently contended),- by one of the most distinguished lawyers that ever presided in the English Court of Chancery"; The Lancet, 29 August 1835, 711.

[26] That the injunction was dissolved was however drawn to the attention of the court in Caird v. Sime by Mr. MacClymont, counsel for the respondent; ibid., 347. About this Lord Watson nevertheless observed: "We were told that no trace has been found of the affidavit on which the motion was made, so that the recall of the injunction may have been the result of an arrangement between the parties, and at all events it cannot detract from the weight of Lord Eldon's deliberate judgment causâ cognitâ"; ibid.

[27] Caird v. Sime, 355.

[28] Indeed, that Brougham had become involved in the litigation caused something of a stir; Wakley reported on 6 June that "Mr Brougham's anticipated appearance in the Court of Chancery has created a very great sensation, and, in all probability, the Court will be crowded at an early hour"; The Lancet, 6 June 1835, 280.

[29] Probably James Quin (1693-1766), a much celebrated actor who, before the arrival of David Garrick, dominated the English stage.

[30] The Times, 11 June 1825.

[31] Millar v. Taylor (1769) 4 Burr. 2303; see: uk_1769.

[32] Jeffreys v. Boosey (1854) 4 HLC 815; see: uk_1854.

[33] In 1856, he was also instrumental in establishing the National Association for the Promotion of Social Science; in general, see R. Stewart, Henry Brougham, His Public Career 1778-1868 (London: The Bodley Head, 1986), 183-204.

[34] For The various Acts and Bills that Brougham introduced throughout his parliamentary career see: J.E. Eardley-Wilmot, Lord Brougham's Acts and Bills, From 1811 to the present time (London: Longman, 1857); curiously, Eardley-Wilmot lists the Publication of Lectures Act as no more than a Bill.

[35] A Bill for promoting education and regulating charities, introduced on 3 July 1835.

[36] A Bill for amending and declaring the law of marriage, introduced on 3 September 1835.

[37] A Bill to amend the law touching letters patents for inventions, introduced on 3 June 1835; this Bill resulted in the Patents Act, 1835, 5 & 6 Will.IV, c.83.

[38] Journal of the House of Lords (LJ), 67: 542, 556, 559, 574-75, 576.

[39] Draft Bill, 20 August, clause 1.

[40] Statute of Anne, 1710, 8 Anne, c.19, s.1.

[41] That is the Statute of Anne, 1710, and the Copyright Act, 1814, 54 Geo.III, c.156; see Draft Bill, 20 August, clause 4.

[42] Draft Bill, 20 August, clause 5.

[43] Draft Bill, 20 August, clause 3.

[44] Draft Bill, 20 August, clause 2.

[45] C. Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999).

[46] Ibid., 56.

[47] The Lancet, 29 August 1835, 712.

[48] See in general: Stewart, 99-182.

[49] Huch, 123.

[50] Ibid., 124.

[51] Indeed, throughout the whole of the next session, Brougham stayed away from the Lords; Stewart, 326.

[52] Huch, 143.

[53] Hansard, 3rd Ser., 30 (1835): 953; Wakley wrote in The Lancet that: "The ‘readings' in the Lords all passed sub silentio, and it appears to have been a committee of mutes who presided over the destinies of the measure"; The Lancet, 29 August 1835, 709.

[54] Hansard, 3rd Ser., 30 (1835): 953-54.

[55] Ibid., 954.

[56] Ibid.

[57] Hansard, 3rd Ser., 30 (1835): 977.

[58] Ibid; this, of course, was a distinction that he had previously elaborated in his representations to the court in Abernethy as well as in the pages of The Lancet.

[59] Journal of the House of Commons (CJ) 90: 589.

[60] About this amendment Wakley would later write: "[B]y causing the words ‘or any part thereof' to be expunged from clauses 1 and 3, the tendency even of clause 2 [the newspaper clause] was altered, to [my] entire satisfaction"; The Lancet, 12 September 1835, 785.

[61] CJ, 90: 604; Publication of Lectures Act, 1835, 5 & 6 Will.IV, c.65, s.5.

[62] For Wakley's account of his involvement in the amendments made to Brougham's Bill see, in general, The Lancet, 12 September 1835, 783-86.

[63] Sprigge, 306-07.

[64] 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.

[65] In general see Sprigge, 291-301.

[66] See for example: Hansard, 3rd ser., 42 (1838): 1056-63; Hansard, 3rd ser., 61 (1842): 1374-86.

[67] Publication of Lectures Act, 1835, s.5.

[68] That is, that notice of the lecture be given to two justices, living within five miles of the place of the lecture, and at least two days before delivery of the same; s.5. See, for example, the comments of Copinger, in 1870: "In consequence of these exceptions, few lectures are protected by this Act, for seldom is the requisite notice given. And, under this latter clause [the proviso concerning universities and schools], it would appear that sermons delivered by clergymen of the Established Church, in endowed places of public worship, are deemed public property"; W.A. Copinger, The Law of Copyright in Works of Literature and Art, 1st ed. (London: Stevens & Haynes, 1870), 35.

[69] Nicols v. Pitman, 382.

[70] Report of the Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyrights, C. 2036 (1878), xvi.

[71] Ibid. They continued: "We think that the author's copyright should extend to prevent re-delivery of a lecture without leave as well as publication by printing, though this prohibition, as to re-delivery, should not extend to lectures which have been printed and published"; ibid.

[72] Ibid.