Primary Sources on Copyright (1450-1900)

Identifier: uk_1842

Commentary on Copyright Amendment Act 1842

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Copyright Amendment Act 1842', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Thomas Noon Talfourd and the Copyright Amendment Act 1842

4. Controversy over the Copyright Term

5. The substance of the Copyright Amendment Act 1842

6. References

1. Full title

2. Abstract

The Act providing authors with the first post-mortem term of copyright protection. The term of copyright was to last either for the life of the author plus seven years after his or her death, or for forty-two years from the first publication of the same (whichever was longer). The commentary briefly discusses Thomas Noon Talfourd's repeated attempts to secure such legislation between 1837 and 1841, the opposition he experienced thereto (including Thomas Babington Macaulay's famous speech in the House of Commons on 5 February 1841 against extending the copyright term), and the success which Lord Mahon had in finally securing the Act in 1842.

3. Thomas Noon Talfourd and the Copyright Amendment Act 1842

The genesis of, and background to, the Copyright Amendment Act 1842 has been exhaustively discussed by Catherine Seville in her book on Literary Copyright Reform in Early Victorian England.[1] As such, this commentary will provide little more than a brief account as to the nature and extent of the controversy surrounding the attempts of Thomas Noon Talfourd (1795-1854) to secure copyright reform, as well as an equally brief introduction to the main innovations of the legislation itself.

When Talfourd brought the first of his copyright Bills before the Commons in June 1837, his intention had been to codify the various strands of existing copyright legislation within one statutory measure.[2] Moreover, he also proposed to put the issue of the rights of foreign authors (as well as works first published outside the British dominions) upon a legislative basis.[3] The draft Bill, however, proved to be overly ambitious. The government made it clear that the issue of international copyright relations was an inappropriate subject for a back-bench initiative; indeed, moves were afoot on a government measure that would address the same.[4] Talfourd capitulated, and in December 1837 sought leave to bring in a revised Bill; this Bill, presented to the Commons on 28 February 1838, confined itself to domestic copyright issues only, and only in relation to literary, dramatic and musical works.[5] Like its predecessor, it failed to progress beyond the Committee Stage in the Commons. In 1839, 1840 and 1841, three more Bills were introduced, each of which confined itself to the same basic parameters of Talfourd's 1838 Bill, and each of which failed to pass the Commons.[6] Thereafter, in the general election of 1841, Talfourd lost his seat in parliament. The following year, Lord Mahon (1805-1875) took on Talfourd's mantle and successfully steered the Copyright Amendment Act through parliament; it received the Royal Assent on 1 July 1842.

4. Controversy over the Copyright Term

The issue that was singularly responsible for the five year controversy surrounding Talfourd's proposals concerned his plans to extend the existing copyright term; as Seville writes: "[b]y the time that the 1842 Act was finally passed, it was widely regarded as a single-issue piece of legislation".[7] Under the 1814 legislation, the copyright in a literary work was to last for twenty-eight years from the point of publication, and, if the author was still alive at the end of that period, then for the remainder of his natural life. Talfourd wanted to extend the copyright term to the life of the author plus sixty years after his or her death. It was this aspect of his proposed bills that gave rise to more controversy than any other. Despite the extensive backlash which his proposed term engendered, Talfourd refused to compromise. Only when Lord Mahon took over from Talfourd in 1842 was the proposed term of protection reduced to the life of the author and twenty-five years. Even this proved controversial, and eventually, upon the suggestion of the Prime Minister, Sir Robert Peel (1788-1850), Mahon's proposal was modified again to a single forty-two year term, or the life of the author plus seven years post-mortem, whichever was longer.[8] For Talfourd, and his supporters, the compromise proved disappointing; where they could draw some satisfaction, however, was that a post-mortem term was added at all.[9]

The opposition to Talfourd's proposals came in many and varied guises. In terms of the publishing lobby, as was the case when they gave evidence before the Select Committee on the copyright regime in 1813,[10] they remained generally indifferent to the prospect of an extended copyright term. More significantly, however, they were unhappy with Talfourd's initial proposals for managing the term extension in relation to existing copyright works. Where, for example, an author had previously assigned the copyright in a work to another party, the Bill provided that the copyright therein would remain the property of the assignee for twenty-eight years from first publication only; thereafter, the copyright in the extended term reverted to the author or, if the author had died, to his or her estate.[11] In response to the protests of the publishers these provisions were revised. A compromise was reached in the Copyright Amendment Act 1842 whereby, if an author had previously assigned a work to anyone "for other consideration than that of natural love and affection", then the copyright in the work would expire at the end of its existing term in accordance with the 1814 legislation; this, however, was subject to a proviso that enabled the owner (in general, the publisher) of the work to "accept the benefits" of the new Act upon securing the consent of the author (or his or her estate) to the same. In short, if a publisher who already owned a copyright work wanted to benefit from the extended term, they had to negotiate (and, in general, pay for) the necessary authorial consent. Although the new transitional provisions were not ideal, they were nevertheless sufficient to ensure the publishing lobby withdrew their objections to Talfourd's proposals.[12]

The protest from quarters other than the publishers was louder, stronger, and more sustained. Between 1838 and 1840 nearly 500 petitions were lodged in parliament objecting to the proposed legislation.[13] While the protests against the proposed legislation initially came from just within the book trade, the nature of the debate soon broadened out to encompass arguments that invoked and turned upon questions of free trade, a free press, and the significance of cheap literature to the encouragement and spread of popular education. The publishers may have been mollified by the amendments made to the transitional provisions, but the same could not be said for other factions within the book trade. The printers worried that the extended term of protection might threaten the emerging market for cheap books; fewer affordable books on the market, they reasoned, resulted in fewer books that required printing. The protests of the printers were joined, and indeed marshalled, by radical politicians such as Thomas Wakley (1795-1862) and Henry Warburton (1784-1858) for whom there was a clear and inevitable nexus between a free and accessible press and the political freedom of the individual.[14] Throughout the 1830s Wakley, Warburton, and others, had fought to liberate the press by reducing the tax that was levied upon paper in general and newspapers in particular,[15] as well as lobbying for the reform of the libel laws. When considering copyright reform they urged that the Commons "should not look to the interests of individuals, but to that of society at large".[16] For Warburton, the extended copyright term amounted to "a robbery upon the public"; copyright ought to be fixed, he suggested, "only on such a term of years as would prove a sufficient inducement for authors to write good books".[17]

The objections of both printers and radical politicians were similarly joined by those, such as Henry Brougham (1778-1868),[18] who were primarily concerned with the impact which the proposed legislation might have upon educational reform.[19] In the public debates surrounding the Copyright Act 1814, the requirements of library deposit were castigated as a tax upon authors. Now, the proposed extension to the copyright term was portrayed as a "tax upon knowledge"; indeed, term extension became synonymous with taxing the cause of popular education. No-one exploited this conceit more effectively than Thomas Babington Macaulay (1800-1859) when he first spoke to the issue of term extension on 5 February 1841.[20] "The principle of copyright is this" he declared: "It is a tax on readers for the purpose of giving a bounty to writers". Macaulay continued:

"At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouth of deserving men. Everybody is well pleased to see them restrained by the law and compelled to refund their ill-gotten gains. No tradesmen of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men of a character very different from that of the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot."[21]

Later that day William Gladstone (1809-1898), who had been supporting and advising Talfourd in his efforts,[22] noted in his diary: "Copyright bill thrown out by 45 to 38. Macaulay did it".[23]

5. The substance of the Copyright Amendment Act 1842

As noted already, the Act was eventually passed in 1842 largely because Lord Mahon had taken over from Talfourd, and largely because Mahon was willing to compromise on the duration of the copyright term. As Seville writes, for Talfourd the life plus sixty term was "a fundamental clause which expressed the concentrated weight of all the moral arguments for protecting authors' works";[24] for Mahon, however, the negotiated term was a pragmatic and necessary concession designed to ensure the passage of the 1842 Bill. Leaving the issue of the term of protection to one side, much of the new legislation covered familiar ground. The registration of copyright works was to be continued at Stationers' Hall,[25] and, as was the case under the Library Deposit Act 1836,[26] five copies of every published work were to be deposited for the benefit of the British Museum, the University libraries at Oxford, Cambridge and Trinity, and the Faculty of Advocates at Edinburgh.[27] Similarly, the provisions on infringement were, by and large, based upon the existing copyright and customs legislation.

The 1842 Act did, however, introduce new aspects to the copyright regime. For one thing, the concept of copyright itself first received statutory definition. In this regard, the Act provided that "all copyright shall be deemed personal property, and shall be transmissible by bequest, or, in the case of intestacy, shall be subject to the same law of distribution as other personal property, and in Scotland shall be deemed to be personal and moveable estate".[28] In addition, the performance right which the Dramatic Literary Property Act 1833 provided for dramatic works was extended to musical compositions.[29] Third, in clarifying the position of the ownership of the copyright in periodical works, the legislation also introduced the first statutory provisions concerning employer-employee copyright relations. The Act set out that where a publisher had employed an author to contribute an essay or an article for publication in an encyclopædia, periodical, review or magazine, then the copyright in the work belonged to the publisher "as if he were the actual author thereof". There were, however, two important qualifications to this basic position. First, the author could reserve the right of publishing his own work "in a separate form", either expressly or impliedly, when contracting with the publisher. Second, should the publisher wish to republish the work within twenty-eight years of first publication, he could only do so with the consent of the author (or his assigns); thereafter, the right of publication reverted to the author for the remainder of the copyright term.[30]

The final major innovation of the new legislation was the introduction of a system of compulsory licensing to guard against "the suppression of books of importance to the public". When Macaulay spoke to the Commons in February 1841 he had made much of the fact that an extended post mortem term might lead to "many valuable works [being] either totally suppressed or grievously mutilated". Samuel Richardson's grandson, for example, "was a most upright and excellent man; but he conceived a strong prejudice against works of fiction"; James Boswell's eldest son considered his father's Life of Johnson to be "a blot in the escutcheon of the family". Should the control of the copyright in such works have passed to these individuals "the finest prose work of fiction in the language, the finest biographical work in the language, would very probably have been suppressed". And these examples, he added, concerned works that were "singularly inoffensive"; imagine, he continued, the opportunities which an extended term might present for suppressing "books of a very different kind, - books which are the rallying points of great political and religious parties".[31]

Macaulay may have been over-egging the pudding somewhat, however the fear that works might fall out of print while still within an extended copyright term was genuine enough; it was certainly one that had been brought to the attention of the House a number of times before Macaulay spoke to the same.[32] That the ownership of the copyright in a work might lead to the suppression of that work, prompted Talfourd to include some mechanism for addressing this issue in each of the Bills he introduced. The nature of these provisions altered considerably throughout the five years of debates upon reform. In his Bill of June 1838, for example, Talfourd provided that when a copyright protected work had been out of print for five years or more, then anyone could give notice to the owners thereof, of their intention to publish that work. If, after twelve months no new edition had appeared, then the individual giving notice was not only free to republish the work, but upon republication the copyright in the work would belong to new publisher for the residue of the copyright term.[33] This was not so much a compulsory licensing system, as a form of literary adverse possession.[34] Macaulay had no objection in principle to such a provision; in practice, however, he considered Talfourd's scheme ill-conceived.[35] When Mahon presented his version of the Bill, Talfourd's basic model was reshaped. In the final version of the Act, after an author's death, should the owner of the author's copyright refuse to publish his or her work, then the Judicial Committee of the Privy Council were authorized to grant a licence, "in such manner and subject to such conditions as they may think fit", to ensure the publication of the same.[36]

In terms of assessing the form and substance of the Act, Seville is relatively generous. Despite her regret that the legislation, and the discussions surrounding it, failed to establish a comprehensive and credible "rationale for the law of copyright",[37] she nevertheless concludes that "the 1842 Act produced a clear improvement in copyright law" and that, in any event, it "seems to have worked well enough for the remainder of the century".[38] The assessment of the Royal Commission on Copyright in 1878 was somewhat less charitable. When commenting upon the various statutes making up the copyright regime, the Commission's Report concluded that: "[S]ome are drawn so as to be hardly intelligible. Obscurity of style, however, is only one of the defects of these Acts. Their arrangement is often worse than their style. Of this the Copyright Act of 1842 is a conspicuous instance".[39] The Royal Commission Report of course resulted in an unsuccessful attempt to codify the law of copyright, much as Talfourd had proposed to do in 1837. Before that, there had been one other abortive attempt at codification when, in 1857, a government Bill was drawn up to consolidate all of the existing domestic and international copyright legislation.[40] In the end, these various attempts to revise and codify the entirety of the copyright regime proved unsuccessful, and copyright law, as it related to literary, dramatic, and musical works, remained grounded in the 1842 Act, until the passing of the Copyright Act 1911.[41]

6. References

Government papers and legislation

Bill to consolidate and amend the Laws relating to Copyright in Printed Books, Musical Compositions, Acted Dramas and Engravings, to provide Remedies for the Violation thereof, and to extend the Term of its Duration, 6 June 1837, Paper No.380, I: 573

Bill to amend the Law of Copyright, 27 Feb. 1838, Paper No.164, I: 489

Bill to amend the Law of Copyright, 6 June 1838, Paper No.461, I: 505

Bill to amend Law of Copyright, 12 Feb. 1839, Paper No.19, I: 505

Bill to amend Law of Copyright, 11 Feb. 1840, Paper No.61, I: 415

Bill to amend the Law of Copyright, 29 Jan. 1841, Paper No.6, I: 429

Bill for Consolidating Laws relating to Copyright in Works of Literature and Art, 20 July 1857, Paper No.142, I: 409

Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15

Library Deposit Act, 1836, 6 & 7 Will.IV, c.110

Report of the Royal Copyright Commissioners, Sessional Papers, 1878, xxiv, C.2036

Books and articles

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

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

M.R.D. Foot & H.C.G. Matthew, eds, The Gladstone Diaries, vol.III (1840-47) (Oxford: Clarendon Press, 1974)

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

[2] Bill to consolidate and amend the Laws relating to Copyright in Printed Books, Musical Compositions, Acted Dramas and Engravings, to provide Remedies for the Violation thereof, and to extend the Term of its Duration, 6 June 1837, Paper No.380, I: 573 (see: uk_1837a). This Bill did not, however, attempt a complete codification of the copyright regime, in that it didn't incorporate the existing copyright legislation relating to works of sculpture (see: uk_1798).

[3] During the 1820s and 1830s, the question of what rights a foreign author had under the British copyright regime increasingly came before the courts; see: uk_1854. To address this, Talfourd proposed that, should an author register their work within one year of publication outside the British dominions, and thereafter publish the work within the British dominions, then they were to "have and enjoy the Copyright thereof within the dominions of His Majesty for the like term, commencing from its first publication"; 1837 Bill, clause 11.

[4] See: uk_1838.

[5] Bill to amend the Law of Copyright, 27 Feb. 1838, Paper No.164, I: 489; see also Bill to amend the Law of Copyright, 6 June 1838, Paper No.461, I: 505.

[6] See: Bill to amend Law of Copyright, 12 Feb. 1839, Paper No.19, I: 505; Bill to amend Law of Copyright, 11 Feb. 1840, Paper No.61, I: 415; Bill to amend the Law of Copyright, 29 Jan. 1841, Paper No.6, I: 429.

[7] Seville, 18.

[8] In general see: Seville, 60-67, 171-75.

[9] Amongst those who objected to the proposed term extension was Thomas Babington Macaulay (1800-1859). Macaulay delivered a famous speech in the Commons against Talfourd's Bill of 1841 which resulted in its being thrown out. When, in 1842, Mahon steered the Act through the Commons, Macaulay raised objections to any post-mortem term being included within the legislation at all, instead preferring a lifeterm term, which term would last for a minimum of forty-two years from the time of first publication. Macauley's objection to Mahon's 25 year post-mortem term was carried by a vote of 68 to 56. When Peel then suggested that a seven year post mortem term be included to ensure that an author was in a position to "provide for his family afte death", Macauley objected again on the basis that, with a forty-two year term, "a prudent man ought to be able to make some provison for his children, and to give a term after death was rather offering an encouragement to expenditure". Upon another division of the House, Peel's proposal was comprehensively carried by a vote of 91 to 33. See in general: Hansard, 3^rd ser., 61 (1842): 1393-94 (uk_1842g); Journal of the House of Commons, 97: 165.

[10] See: uk_1814.

[11] 1837 Bill, clause 5. Similarly, if under the previous assignment the author had retained any partial interest in the work, then he or she was to enjoy the full extension of the copyright term; ibid., clause 4.

[12] Indeed, some publishers, like Thomas Longman and John Murray, began to actively lobby in favour of the new legislation; see Seville, 116-19.

[13] Seville, 33.

[14] Seville, 40-48; see also: uk_1835.

[15] See: uk_1835.

[16] Thomas Wakley, Hansard, 3^rd ser., 42 (1838): 1057 (uk_1838d). This was a matter, he continued, in which "[a]ll classes, and all parties were equally concerned; the rights of the public were deeply interested, and he trusted they would not be neglected to grant an undue privilege to authors"; ibid., 1060. See also Hansard, 3^rd ser., 52 (1840): 417 (uk_1840b) when Wakley observed that in considering new legislation the Commons should "look to the national, and not to the individual interests involved".

[17] Henry Warburton, Hansard, 3^rd ser., 47 (1839): 711 (uk_1839b).

[18] Once described by one of his contemporaries as "the foremost advocate of popular education", Brougham was involved in the operation of Mechanic's Institutes (which sought to encourage working men to educate themselves upon matters of philosophy and the natural sciences), and played a central role in the establishing of the Society for the Diffusion of Useful Knowledge in 1826, as well as the founding of the University of London. Later in 1856, in his seventy-ninth year, he was 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.

[19] Seville, 51-59, 105-109.

[20] Seville, 60-67.

[21] Hansard, 3^rd ser., 56 (1841): 350, 356-57 (uk_1841c).

[22] Seville, 159-175.

[23] M.R.D. Foot & H.C.G. Matthew, eds, The Gladstone Diaries, vol.III (1840-47) (Oxford: Clarendon Press, 1974), 82.

[24] Seville, 19.

[25] There was however an attempt to clarify and regularize the registration process; see ss.11-14.

[26] Library Deposit Act, 1836, 6 & 7 Will.IV, c.110.

[27] Under the 1842 Act however the deposit of works for the British Museum was made compulsory (ss.6, 7) whereas copies for the use of the other four libraries were only to be provided "on demand thereof in writing, left at the place of abode of the publisher thereof at any time within twelve months next after the publication thereof" (s.8).

[28] 1842 Act, s.25.

[29] Ibid., s.20.

[30] 1842 Act, s.18.

[31] Hansard, 3^rd ser., 56 (1841): 353-56 (uk_1841c).

[32] See for example the comments of Sir John Russell on 6 June 1838 (uk_1838e), and of Henry Warburton on the 29 Jan. 1841 (uk_1841b).

[33] 1838 Bill, clause 7.

[34] The proposal that the copyright in the work would transfer to the person reprinting the work in this way was dropped by Talfourd in both the 1840 and the 1841 Bills. Instead, the clause provided that the individual concerned could "republish such Book for his own benefit, any thing herein contained to the contrary notwithstanding"; 1840 Bill, clause 5.

[35] Talfourd observed: "[W]hat protection is this to the public? What is a new edition? Does the law define the number of copies to make an edition? Does it limit the price of a copy? Are twelve copies on large paper, charged at thirty guineas each, an edition? It has been usual, when monopolies are granted, to prescribe numbers and to limit prices. But I do not find that my hon. And learned Friend proposes to do so in the present case. And, without some such provision, the security which he offers is illusory"; Hansard, 3^rd ser., 56 (1841): 354-55 (uk_1841c).

[36] 1842 Act, s.5; see in general: Seville, 230-232.

[37] Seville, 217; this she concludes was largely due to the manner in which the arguments concerning the copyright term dominated the parliamentary debates, and so precluding the possibility of any meaningful discussion about the basis or purpose of copyright itself.

[38] Seville, 256-57.

[39] Report of the Royal Copyright Commissioners, Sessional Papers, 1878, xxiv, C.2036 (uk_1878).

[40] Bill for Consolidating Laws relating to Copyright in Works of Literature and Art, 20 July 1857, Paper No.142, I: 409.