Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1862
Commentary on Fine Arts Copyright Act 1862
Ronan Deazley
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Fine Arts Copyright Act 1862', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
2. Abstract
3. Bilateral Treaties and Domestic Legislation
4. The Working Life of the Eighteenth-Century Artist
5. Paintings, Drawings, and the Engravers' Acts
6. The International Exhibition and the case for Legislation
7. The 1861 Bill, the Prevention of Fraud, and the Moral Rights of the Artist
8. Photography as a ‘Fine Art'
9. Publication and Registration: The Radical Nature of the 1862 Bill
10. Originality, Ownership, and protecting the Art Market
11. Domestic Legislation and the Work of Foreign Artists
12. Conclusion
13. References
1. Full title
Fine Arts Copyright Act, 1862, 25 & 26 Vict., c.68
2. Abstract
Legislation conferring copyright protection on paintings, drawings, and photographs for the life of the author plus a seven year post mortem term. The Act was also innovative in de-coupling the copyright term from the event of publication, in providing artists with a new form of ‘moral rights' protection, and in introducing the concept of "originality" as the standard threshold for copyright protection.
The commentary explores the background to the legislation, and in particular, the international copyright regime, the nature of the art market in eighteenth and early nineteenth centuries, the role of the Society of Artists in lobbying for legislative protection, and the impetus which the International Exhibition provided for securing the same. The commentary also considers how the 1862 Bill, in its earliest incarnation, incorporated elements that would have signalled a radical departure from established copyright norms. In particular, the Bill proposed: that copyright protection should not be contingent upon registration; and that protection should be offered on a universal basis, regardless of an artists' nationality, and regardless of where the work in question was created.
3. Bilateral Treaties and Domestic Legislation
Following the enactment of the International Copyright Act 1844,[1] the government enjoyed considerably more success in negotiating a series of bilateral treaties providing arrangements for reciprocal copyright protection than had been the case under the previous International Copyright Act of 1838.[2] Part of the reason for that success lay in the fact that, whereas the 1838 Act promised only protection for books published in foreign jurisdictions, the 1844 Act proffered copyright protection for "Books, Prints, Articles of Sculpture, and other Works of Art"[3] as well as a performance right for "Dramatic Pieces and Musical Compositions".[4] Moreover, rather than delineating the specific nature of the protection which foreign works would receive under the reciprocal arrangement, the 1844 Act instead linked that protection to the existing domestic copyright legislation. So for example, the protection for foreign books was to be governed by the Copyright Amendment Act 1842,[5] the protection for works of foreign sculpture by the Sculpture Acts,[6] the performance of dramatic works by the Dramatic Copyright Act 1833,[7] and so on. In drawing these explicit structural links between international protection and the domestic legislation, the Act ensured formal and substantive parity as regards the copyright protection enjoyed by both British and foreign works.[8]
The Act however did not readily map onto existing domestic copyright law at that time. In holding out the promise of reciprocal protection, not just for prints and articles of sculpture, but for "other Works of Art" as well, the legislation clearly misrepresented the state of the domestic copyright regime. Other than prints and certain works of sculpture,[9] no other works of art currently enjoyed copyright protection within the UK at that time. About this disjuncture between the international norm and the domestic reality, Sherman and Bently write as follows:
"[T]he image of copyright used in bilateral agreements played an important role in the development of domestic law. In particular, if we suspend our realist assumptions we see that the [international] model anticipated, possibly created, the legal reality. That is, the image of copyright law was a model for rather than a model of what it purported to represent. In effect, the laws presented during the bilateral agreements as accurate descriptions of domestic law (which they were clearly not) became real laws, real fictions."[10]
They continue that this gap between domestic and international law "played an important role ... in ensuring the enactment of the 1862 Fine Art Copyright Act".[11] That is, no doubt, true. However, it is equally true that this legislative gap was not successfully addressed for nearly twenty years. How then do we account for this hiatus, and what in particular proved to be the catalyst for the move towards securing the 1862 legislation? The 1862 Act introduced copyright protection for three types of artistic work - original drawings, paintings, and photographs. By the time the Act was passed, the English market for drawings and paintings had been well-established for over 100 years;[12] photography by contrast was a medium (and an art-form) still in its infancy, and its inclusion within the 1862 statute proved controversial, as we shall see. In relation to the former two categories however, we might equally well ask, why it was that engravings received copyright protection in 1735,[13] why certain works of sculpture received the same in 1798,[14] and yet drawings and paintings had to wait until the mid-nineteenth century for protection at all, whether in 1844 or in 1862?
4. The Working Life of an Artist
For the professional artist working in late eighteenth century Britain, there were a number of ways by which to earn a living.[15] For those painters who favoured a relatively secure (if often modest) living, commissions for portraits provided an obvious source of income.[16] For those, however, with a desire for the public notoriety and fame that sometimes came with the production of larger scale works, such as history paintings, biblical scenes, and religious allegories, securing commissions or individual patronage was often much more difficult.[17] Aside from commissions and sales, however, there were other ways for such artists to generate and develop income. For instance, the successful public exhibition of a work might bring considerable reward. John Singleton Copley (1738-1815) was a particularly adept exponent of this commercial strategy. In 1781, for example, his Death of Chatham was said to have made £5,000 in ticket sales alone; ten years later, when he exhibited Floating Batteries at Gibraltar in St James's Park he reportedly made a further £3000.[18]
In addition to the possibility of working on commission, sales and exhibition, there was also a market for reproductions of paintings and drawings that could often prove to be extremely lucrative. Reproductions of paintings generally came in one of two forms: painted replicas or engravings. As regards the former, the painter himself would often produce multiple versions of a painting (often in smaller scale) depending on the success of, and demand for, the same.[19] Wendorf, for example, relates a tale about Joshua Reynolds (1723-1792), the first president of the Royal Academy, reproducing a painting (Venus) for his patron the Duke of Rutland (1754-1787), a similar version of which he had previously sold to the Duke of Dorset (1745-1799).[20] Similarly, Benjamin West (1738-1820), the most commercially successful artist of his generation, often produced replicas. When he exhibited The Death of General Wolfe at the Royal Academy exhibition in 1771 the painting proved to be an instant sensation.[21] Lord Grosvenor (1731-1802) purchased the work for £400, after which West made at least five repetitions, one of which he sold to the German Prince of Waldeck for £250, while another was acquired by George III (1738-1820) for £350.[22]
The money that West received for replica paintings however was nothing by comparison with that which he received from the reproduction of his works as engravings. The engraved version of Wolfe, for example, was negotiated and managed by John Boydell (1720-1804) who, by the end of the eighteenth century, had established himself as one of the leading figures in both the British and the European print market.[23] Boydell commissioned William Woollett (1735-1785) to engrave the work and, when first published in 1777, "it broke all records in sales and was copied by the best engravers in Paris and Vienna".[24] Woollett earned £7,000 from the Wolfe engraving, whereas Boydell is said to have realised over £15,000,[25] which figure accounted for only a one-third share of the profits;[26] West himself received a sum in royalties the amount of which, as Alberts notes, "has never been revealed".[27] With this print, Alberts continues, "[t]he three men created a new popularity and demand for history paintings and a vastly broadened market for prints taken from those pictures. They gave the artist and the engraver a new source of income and in some measure freed them from the sole dependence on the private patron".[28]
Leaving to one side Alberts' claims as to the cultural and economic legacy of the Wolfe phenomenon,[29] it certainly seems to have been the case that an artist at this time could use his ‘engraving rights' to establish his reputation and develop a wider audience,[30] while at the same time earning considerable sums of money. When the British Institution paid the unprecedented figure of £3,150 for West's Christ Healing the Sick in 1811, they more than recouped their original investment, as well as a substantial engravers' fee, by the sale of engravings of the same.[31] Copley made an estimated £1,200 from the engravings of his Death of Nelson in 1806.[32] The price paid to engrave Edwin Landseer's (1802-1873) paintings in the mid-nineteenth century outstripped the price paid for the actual paintings themselves.[33] Moreover, some artists, such as J.M.W. Turner (1775-1851) and John Martin (1789-1854), rather than work in collaboration with established engravers, often took control of engraving their own works.[34] Indeed, between 1826 and 1840 Martin claimed to have made in excess of £21,000 either from royalties or in direct sales of prints of his paintings.[35]
5. Paintings, Drawings, and the Engravers' Acts
All of this begs the question, of course, as to the legal status of the ‘engraving rights' which artists seemed to be able to capitalise upon in relation to their paintings and drawings. When painters purported to realise payment on the right to engrave their works, upon what basis did they do so? Did it turn upon negotiating physical access to a painting to ensure a faithful reproduction of the same? Was it simply a recognised and accepted commercial convention of the printsellers' market? Or did the status of an engraving right rest upon some other legally significant construct that predated (and perhaps rendered redundant) the need for statutory protection in 1862? The situation is not entirely clear. In Sayre v. Moore (1785), for example, Lord Mansfield (1705-1793) remarked that "in the case of prints, no doubt different men may take engravings from the same picture, but one cannot copy the engravings of another".[36] Sayre concerned an action alleging the unauthorised reproduction of sea charts, the resolution of which Lord Mansfield considered to be "a matter of great consequence to the country". Within the context of a sea-faring, mercantilist nation, the implications of the decision were obvious: "If an erroneous chart be made, God forbid it should not be corrected even in a small degree, if it thereby become more serviceable and useful for the purposes to which it is applied". In holding for the defendant, he continued: "This chart of the plaintiffs' is wrong in principle, inapplicable to navigation. The defendant therefore has been correcting errors, and not servilely copying".[37]
A case more directly concerned with the operation of the art market was that of De Berenger v. Wheble (1819).[38] In De Berenger the plaintiff had purchased "the privilege of engraving the prints" of two pictures by Philip Reinagle (1748-1833) from the artist himself. The engraver who executed the prints for De Berenger also made sketches of the works "for his own study", which sketches "were taken from the original pictures, and had not been in any part copied from the plaintiff's engravings".[39] From these sketches the engraver made two further prints for the defendant who published them in his Sporting Magazine, upon which basis the plaintiff alleged copyright infringement in the original engravings. Before Abbott CJ (1762-1832), Holt and Tindal for the defendant argued that the legislation protecting engravings "did not give any monopoly in the picture to the engraver, but left the use of it free and unrestrained to the painter who might make as many copies of it as he thought fit". Abbott CJ agreed: "It would destroy all competition in art to extend the monopoly to the painting itself ... [and] in this case the defendant's engraving was made from the original picture, and not from the plaintiff's print".[40] As with Lord Mansfield's obiter comment in Sayre, the decision in De Berenger seemed to suggest that anyone might produce copies of existing paintings and drawings without fear of reprisal from someone who had actually paid the artist for the privilege of making reproductions of the same.
And yet, painters did command substantial reproduction fees in relation to their works. One possible explanation underpinning the reality that artists regularly sold the right to engrave their paintings lay in the fact that the "invention" and "design" of a painting, as opposed to the painting itself, could be understood to fall within the protection of the Engravers' Act 1735.[41] The 1735 legislation provided that every one "who shall invent and design, engrave, etch or work in Mezzotinto or Chiaro Oscuro, or from his own works and invention, shall cause to be designed and engraved, etched or worked in Mezzotinto or Chiaro Oscuro, any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, to commence from the day of first publishing the same".[42] Although the 1735 Act had been secured by and on behalf of a group of engravers,[43] there was nothing in principle to prevent the substance of the legislation protecting the work of other artistic communities as well. When the Engravers' Act 1766 was passed, it essentially restated the protection set out within the earlier legislation,[44] but continued with the additional provision that:
"[A]ll and every person and persons who shall engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or cause to be engraved, etched, or worked, any print, taken from any picture, drawing, model, or sculpture, either ancient or modern, shall have, and are hereby declared to have, the benefit and protection of [the 1735 Act], and this act, for the term herein after-mentioned, in like manner, as if such print had been graved or drawn from the original design of such graver, etcher, or draftsman..." [45]
Strictly speaking, this new provision did not mean that an artist could prevent an engraver from reproducing his work without prior authorisation; it simply provided that engravings produced from existing works of art (drawings, paintings, and sculptures) were to be protected as if the design of those works originated with the engraver.[46] Nevertheless, the provision implicitly lent credence to the fact that the "invention" and "design" of an engraved work under the 1735 Act might take the form of a pre-existing painting, drawing or sketch. Blaine, writing about the "laws of artistic copyright" in 1853 certainly considered this to be the case. He wrote as follows:
"The Engraving Acts were passed with the express object of encouraging the art of designing for the purposes of engraving, and if the original design be not made public before the engraving from it be published, in accordance with the conditions imposed by the Engraving Acts, it would seem to have been the intention of the Legislature to protect the invention of the design, as well as the authorized engraving from that design."[47]
He continued: "The copyright in a picture, as such, is not protected. It is merely the design of the picture when coupled with engraving, which is entitled to copyright".[48]
In reading the legislation in this manner, Blaine was careful to stress that a work, whether a painting or otherwise, should be first engraved, and the engravings published, in accordance with the legislation, before the work itself was publicly exhibited; otherwise, he suggested, what protection was available in accordance with the engravers' statutes would be lost. It was dangerous, he asserted, to exhibit pictures "before they are engraved":
"[I]f ... as is usually the case at the present day, the picture or design be privately or publicly exhibited or otherwise published before it has been engraved, and the prints from the engraving are published, then it would seem that the design is public property; and that the work of the engraver, exclusive of the design, is alone entitled to copyright; in other words, that any one may engrave the subject provided they do not copy it from the engraving."[49]
Whether exhibition of a work might compromise the protection of the design of the same in accordance with the engravers' legislation was an issue that was never brought before the courts; however, that artists considered it important to adhere to this sequence of events is borne out in some degree by the account of Bailey v. Harrison (1849) in The Times in which the plaintiff complained that his painting "after being engraved was duly published" was reproduced, without authorisation, upon pocket handkerchiefs sold by the defendants.[50]
This state of affairs may explain why, before the mid-nineteenth century, painters such as West felt no real need for bespoke legal protection for their craft. That is, regardless of Sayre and De Berenger, and in accordance with the established practice of the trade, painters were able to ‘licence' or sell the ‘right' to reproduce their work by relying upon their control over the physical access to the painting (or drawing) in conjunction with the indirect protections offered by the existing engravers' legislation.
And yet, whatever protection the engraver's acts provided paintings and drawings in this regard, whether de jure or de facto,[51] the problem remained that this protection was conceptually tied to a particular form of reproduction of the work (that is, the engraving), rather than to the original work itself. As Blaine observed in 1858, the engravers' acts "give artists no copyright in their pictures, as such, but only for the purposes of engraving".[52] It was clear that certain types of ‘unauthorized' use were not prohibited by the existing copyright regime. In 1833, for example, John Martin sought to prevent the public exhibition of an unauthorized large scale diorama of his picture and print, Belshazzar's Feast.[53] Before Shadwell VC (1779-1850), counsel for Martin argued that "there was no difference between selling a copy of a print, and exhibiting it for money; as, in both cases, profit was made of that which was appropriated to another".[54] Before even hearing the counsel for the defendant, Shadwell VC intervened: "Exhibiting for profit is in no way analogous to selling a copy of the Plaintiff's print, but is dealing with it in a very different manner". The engravers' legislation, he continued, "never was intended to apply to a case where there was no intention to print, sell or publish, but to exhibit in a certain manner"; as a consequence, he concluded, "I ought not to grant the injunction until the right has been established at law".[55]
6. The Society of Arts, the International Exhibition, and the case for Legislation
The initiative which ultimately resulted in the passing of the Fine Arts Copyright Act 1862 was taken by the Society for the Encouragement of the Arts, Manufactures and Commerce (the Society of Arts), when on 2 December 1857 they appointed an artistic copyright committee to look into "the subject of Copyright in Works of the Fine Arts".[56] Sir Charles Eastlake (1793-1865), the President of the Royal Academy, was appointed Chair; John Frederick Lewis (1804-1876), the President of the Society of Painters in Water Colours was appointed Deputy Chair; and Blaine, who four years previously had published his treatise On the Laws of Artistic Copyright and their Defects, was appointed Reporter of the Committee.[57] The committee reported early in 1858 recommending that the current laws concerning copyright in artistic works should be revised and expanded. In particular the Committee suggested that the original works of painters, designers, sculptors, engravers and architects should be protected for "the author's life, and 30 years after", and that "works of Art of a more imitative character, and not necessarily embodying original design", such as those produced by engravers, photographers and cast makers, should also be protected for "a like period".[58] This copyright term was, according to Blaine, chosen "in accordance with the law of Prussia and all the States included in the Germanic Confederation".[59]
On 4 June the official Journal of the Society of Arts reported that two petitions were about to be placed in the hands of Lord Lyndhurst (1772-1863), John Singleton Copley's eldest son. The first was from the Society itself, while the second was signed by the members of the artistic copyright committee as well as "a large number of gentlemen interested in the production of works of Fine Art"; both asked that the House of Lords might "consider the grievances in question, and ... afford such relief as ... shall seem just and advisable".[60] Lyndhurst, presented the petitions to the House on 26 July, and a select committee was appointed "to consider the subject", but to no immediate effect.
Undeterred by the lack of success in the Lords, the Council of the Society of Arts reported in October 1859 that it would once again direct its attention to the question of artistic copyright,[61] and in May 1860, the Society's Journal informed its readers that the Artistic Copyright Committee, acting under the advice and guidance of Spencer Walpole (1806-1898), had had a meeting on 28 April with the Prime Minister, Lord Palmerston (1784-1865), to discuss the state of the law as regards artistic copyright.[62] No further progress was made however until 17 January 1861, when the Committee met with Sir Richard Bethell (1800-1873), the Attorney-General, as a result of which Bethell "expressed his willingness to assist the Committee in settling the Bill and to take charge of it in the House of Commons, and promised to urge upon Lord Palmerston the propriety of its being introduced into Parliament as a Government measure".[63] Three months later, on 15 April, leave was given in the House of Commons to prepare and bring in a Copyright (Works of Art) Bill.[64] When Bethell introduced the Bill to the Commons, he made clear that, while the need for legislation of this kind had long been acknowledged, the plans for the forthcoming International Exhibition provided the compelling reason for Parliament to act upon the matter sooner rather than later:
"[S]ome legislation of this kind is absolutely necessary. That necessity has, I believe, for a long time been admitted by this House, and by the other House of Parliament ... Perhaps however the House will think it necessary that even now I should state a few facts, showing the necessity that exists at present for some legislative enactment for the protection of Copyright in works of fine art. We are about to invite, within a few months, the artists of all nations to send their works of art to our approaching Exhibition; but although many nations have made great exertions to secure an International Copyright, we have not as yet, in this country, any law which would give protection to their works, which above all others are entitled to it."[65]
When a deputation from the Society met, once again, with the Prime Minister on 14 June, to impress upon him the "justice" of the Bill, and the "special importance of its being speedily passed", they too drew attention to both the interests of British artists as well as to those of the "Foreign Exhibitors of Works of Fine Arts" who would be invited to the International Exhibition.[66] There is little doubt that legislation protecting the interests of artists would have been introduced by the British legislature at some point throughout the late nineteenth century, if for no other reason than compliance with the Berne Convention would have required the same.[67] It is equally true to say, however, that the plans for the International Exhibition provided the imperative catalyst for its introduction in 1862.[68]
7. The 1861 Bill, the Prevention of Fraud, and the Moral Rights of the Artist
Given that the Society's Artistic Copyright Committee had produced a draft version of a Bill in May 1860, in accordance with their earlier recommendations,[69] there is every reason to accept that the Bill presented by Bethell to the Commons in April 1861 was, by and large, the work of the Copyright Committee.[70] Certainly the Bill that Bethell presented addressed the various substantive recommendations which the Committee had set out in March 1858.[71] It proposed to repeal all existing legislation pertaining to works of "fine art", and instead provide protection for new and original works of art (drawings, paintings, photographs, sculptures, engravings, and works of architecture) for the life of the author with a thirty year post mortem term;[72] in addition, anyone producing a lawful copy of any such work (for example, an authorised engraving of a work of sculpture) would also enjoy copyright in their reproduction for the same term of protection.[73] The protection provided by the Bill extended to both new and existing work,[74] and no copyright would be enjoyed in any work unless the name or monogram of the author had been in some fashion appended thereto.[75]
In addition to the various provisions dealing with copyright, however, the Bill also included a number of clauses concerning the fraudulent production and sale of works of art, designed in part to redress the decision of the court in R v. Closs (1857) which had been handed down on 30 November 1857,[76] just two days before the Society of Arts established the Artistic Copyright Committee. Thomas Closs, a dealer in paintings, had sold a copy of a painting by John Linnell (1792-1882) as an original "by means of having the name ‘J Linnell' painted in the corner of the picture", for which, upon indictment, he had been convicted of forgery.[77] Quashing the conviction, however, Cockburn LJ (1802-1880) explained that "[a] forgery must be of some document or writing", and continued that this case "was merely in the nature of a mark put upon the painting with a view of identifying it, and was no more than if the painter put any other arbitrary mark as a recognition of the picture being his".[78] In effect, Cockburn CJ decided that the offence of forgery at common law did not extend to painting an artist's name on a picture so as to pass it off as one by the original artist. Blaine, in his report to the Copyright Committee, simply remarked that "[t]he consequences of this decision, as respects the interests of artists, of the purchasers of works of Art, and the public morality, are too apparent to need any comment".[79] The Committee recommended that various measures be adopted to protect the public against such frauds,[80] all of which were addressed by the draft Bill, and a number of which were included in the final version of the 1862 Act.[81]
The Bill, for example, provided that no one was to fraudulently sign or affix any "name, initials, or monogram" upon a work, nor sell, publish, or dispose of the same; moreover, no one was to "utter, dispose of, or put off" any copy of a work (whether copyright protected or not) as having been executed by the original artist.[82] Finally, a provision was included which prevented anyone (other than the original artist) who altered an existing work in their possession from selling or publishing the same (or copies thereof) during the artist's lifetime without his or her consent.[83] The inclusion of this offence, a mid-nineteenth century forerunner to the contemporary moral right concerning the derogatory treatment of an author's work, was designed with the explicit purpose of safeguarding the reputation of an artist while he was still alive. As Bethell explained, in his capacity as Lord Chancellor Westbury, in the Lords on 22 May 1862, it was often the case that paintings by "artists of celebrity" were dealt with in such a way that "without being actuated by petty feelings, [those artists] might naturally manifest some sensitiveness on the score of their reputation at being so treated". He provided one such example:
"One remarkable instance was stated by Mr. Charles Landseer, the painter of a picture in which he had introduced two dogs, which had been touched up by Sir Edwin Landseer, and, as the artist himself admitted, greatly improved. This picture was sold to a dealer, who cut out the figures of the dogs, and sold them as the work of Sir Edwin Landseer; and then he filled up the hole in the original picture with two dogs painted by an inferior artist, and sold the whole picture as the work of Mr. Charles Landseer..."[84]
8. Photography as a ‘Fine Art'
The 1861 Bill received a second reading in the Commons however the committee stage was constantly deferred such that it failed to carry in that parliamentary session.[85] In the next session, on 27 February 1862, at the request of "a committee of artists ... to place copyright in works of art on the same footing as that in literary works, sculptures, and engravings",[86] Roundell Palmer (1812-1895), the Solicitor General, rose in the Commons and, suggesting that the law was at present "in a very imperfect and anomalous condition", moved for leave to bring in a Bill to amend the Law relating to Copyright in Works of Fine Art.[87] This Bill differed from its predecessor in a number of respects. The most basic alteration was that the legislation was no longer drafted to extend to all works of fine art. Rather, the existing legislation concerning engravings and works of sculpture was to be left on the statute book, and works of architecture were not to be included at all; the new Bill only proposed to provide protection for "the author of every painting, drawing and photograph".[88]
This Bill would of course eventually result in the 1862 Act, however that photography was to be included within the remit of the legislation gave rise to considerable parliamentary debate. In the Commons, a Mr. Lewis raised the issue as to whether "it would be dangerous at present to include photographs" in an Act of this kind given that "[p]hotography was not a fine art, but a mechanical process".[89] Palmer responded that while "strictly and technically, a photograph was not in one sense to be treated as a work of fine art", nevertheless, "very considerable expense was frequently incurred in obtaining good photographs". He continued:
"Persons had gone to foreign countries - to the Crimea, Syria and Egypt - for the purpose of obtaining a valuable series of photographs, and had thus entailed upon themselves a large expenditure of time, labour and money. Was it just that the moment they returned home other persons should be allowed, by obtaining negatives from their positives, to enrich themselves at their expense?"[90]
Behind these comments lay the interests of photographers like Francis Frith (1822-1898), John Thomson (1837-1921), Samuel Bourne (1834-1912) and others who had contributed, throughout the nineteenth century, to the "establishment of a major tradition of travel photography".[91] Frith, one of the founding members of the Liverpool Photographic Society, was noted for his studies of the Middle East as well as for establishing the largest photographic publishing firm in nineteenth-century Britain. During 1856 and 1860 he embarked upon three extensive expeditions, taking in Egypt and the Nile, as well as Palestine, Jerusalem and Damascus, culminating in the publication of his influential 1860 work Egypt and Palestine Photographed and Described by Francis Frith.[92] Having posed his rhetorical question, Palmer continued that he would not consent to exclude photographs from the Bill.[93]
That was not the only objection to the inclusion of photography within the remit of the proposed legislation. When the Bill was read for the second time before the Lords, Earl Stanhope (previously Lord Mahon) (1805-1875), who had been instrumental in securing the passage of the Copyright Act 1842,[94] voiced further misgivings. While he supported the current Bill upon the principle that "a man should be protected in the enjoyment of his intellectual productions" whether literary or artistic, nevertheless, Stanhope considered, it exhibited "one or two points of difficulty" especially in relation to photographs. In particular he observed that:
"It was quite possible for two or more persons to take photographs of the same scene, building, or work of art from the same spot, and under the same circumstances, and of course producing similar results; and to give a copyright in such cases [was] very likely to occasion dispute and litigation. A person, for instance, might make a photograph copy of a photograph - say of the Colisæum - originally taken by another; who could say that the copy was not the original photograph?"
Under such circumstances, he continued, he could not envisage how it was practicable "to enforce such a copyright".[95] Bethell, now the Lord Chancellor, sought to assuage Stanhope's concerns commenting that "the copy of a photograph might be sufficiently detected, as it would hardly be possible for two persons to produce representations of the same object under exactly the same conditions of light, position and other circumstances".[96] As with the earlier objections of Lewis, the point was ultimately conceded. When the Bill received the Royal Assent, on 29 July 1862, paintings, drawings, and photographs all enjoyed equal status under the new legislation.[97]
9. Publication and Registration: The Radical Nature of the 1862 Bill
Aside from the labelling of photography as a ‘fine art', there were a number of other aspects to the 1862 Bill that proved to be controversial. Indeed, the Bill, as it was first introduced into the Commons, represented quite a radical challenge to existing copyright doctrine and theory. On 8 March, the Athenæum summed up the elements of that challenge as follows:
"[T]he most remarkable feature is that it disregards those three great principles upon which Parliament has legislated with respect to copyright:-
1. That it shall commence from the time a work is first published.
2. And, during the last twenty years, that no copyright shall be acquired by the author of a work except upon condition of its being registered.
3. Also that the work to be so registered shall be new and original."[98]
The question of when copyright protection was to commence was, in the Bill, bound up with the duration of the copyright term. Copyright was to last for the life of the author and seven years after his or her death, a period that was clearly modelled on the statutory term provided by the 1842 Act (and not that originally set out within the 1861 Bill).[99] The 1862 Bill differed from the 1842 Act, however, in that the earlier legislation also provided for a forty-two year protection from the point of first publication if that term proved longer than the seven year post-mortem period; by contrast, the 1862 Bill included no such default term.[100] In this manner, the Bill represented a significant conceptual departure from the existing copyright regime. Whereas all of the existing legislation, in one way or another, specifically linked the duration of the copyright term to the moment of publication,[101] the 1862 Bill abandoned this formula; the copyright term was now to be calculated only by reference to the life and death of the author. Moreover, this aspect of the Bill would be retained in the final version of the 1862 Act.[102]
The other two points raised by the Athenæum would however be addressed as the Bill passed through Parliament. The issue of whether works should be registered under the new legislation was one that had commanded much attention amongst the Society's Artistic Copyright Committee. When they first issued their Report on the state of the law in early 1858, it noted that "[v]ery considerable discussion took place upon the point whether the registration of works of Art ought or ought not to be made a condition precedent to the acquisition of any Copyright therein". The Committee decided, in the end, to recommend that "no such registration ought to be required", which decision was reflected in both the 1861 Bill and the first draft of the 1862 Act. The former provided that "[n]o Copyright shall be acquired in any Work of Fine Art, or in the Design thereof, until the Name or Monogram of the Author or Maker thereof shall have been legibly signed, painted, engraved, printed, stamped, or otherwise marked upon the Face or some conspicuous Part of such Work".[103] Under the latter, even this requirement was abandoned, the Bill simply allowing for copyright protection from the point of the author's creation of the work.[104]
There were, however, a number of Committee members that considered registration to be an essential aspect of the statutory regime, and, when the Committee issued its Report in early 1858, an objection to the principle of non-registration was attached thereto, prepared by Roberton Blaine. Registration, he maintained, was an established principle and practice within the existing copyright regime, both domestic and international. It provided certainty not only for the artist, but also for the purchaser of his work as well as for the public, in terms of ascertaining who owned the copyright in a work (regardless of who owned the work itself). In addition, he argued, the "publicity of registration" assisted in providing a check on the fraudulent production and sale of works of misattributed art.[105]
Blaine reiterated and developed his thoughts on the need for registration in a pamphlet that he published after the 1861 Bill was brought before the Commons. Part of the reason for the artists' reluctance to incorporate a system of registration within the statutory regime, he suggested, lay in the fact that registration would prevent the artists "making repetitions" of their own work after they had sold the same to another. To this end, he maintained, the legislation should not only protect the authors of original works, but it should also prevent the "wrongs committed by authors of original works".[106] This theme was also taken up by the Athenæum. One of "[t]he prominent mischiefs which render legislative redress essential", it suggested, was "the misconduct as a few eminent artists, who have brought disgrace upon a noble profession";[107] it was artists of this kind, the Athenæum continued, who were going to "great efforts" to "obtain the proposed copyright without any condition for registration".[108] On the issue of registration, it considered, the interests of the purchaser should come to the fore:
"Surely the purchasers of such valuable property are entitled to have it protected from piracy by the artist, or any other person, and especially when notorious instances have occurred where eminent English artists have sold numerous "repetitions" of their finest works without deeming it requisite to obtain any consent whatever for that purpose from the owners of the original pictures, whose property therein must necessarily have been lessened in value each time they were thus repeated."[109]
Any legislation, it argued, must make sure to protect "all parties interested under it ... the artists, the purchaser of their works either when commissioned or otherwise, and the public".[110]
When the Bill was discussed in Committee in the Commons provision was made for the registration of "every Agreement for the Acquisition or Reservation of Copyright made upon or before the Sale of any Work of Art under this Act, and also of every subsequent Assignment of any such Copyright". These transactions, unless registered at Stationers' Hall within twelve months of execution, were to be rendered null and void.[111] This arrangement, Palmer explained had been introduced primarily "to afford absolute protection to every purchaser of a work of art after it had left the artist's hand".[112]
When the Bill reached the House of Lords, however, this proposal was not deemed sufficient. Lord Overstone (1796-1883) objected on the basis that, as a result of the twelve-month hiatus between the sale of the copyright in a work and the registration of the same, "there would exist a copyright unknown to the public for the whole period of one year".[113] An arrangement "more inexpedient, more impolitic, and more inconsistent with justice", he considered, "could not well have been devised".[114] Better, he continued that registration should "accompany, if not precede, the first production of the work; otherwise copies made previous to registration, and purchased in good faith by parties ignorant of the suppressed copyright, would be liable at any moment to be seized".[115] When the Bill came back from the Lords, the registration provision had been amended to provide that a memorandum "of every Copyright to which any Person shall be entitled under this Act" was to be registered at Stationers' Hall, without which no action was sustainable, nor any penalty recoverable, "in respect of anything done before Registration".[116] On 24 July, when Palmer presented the amended Bill to the Commons, he accepted that, should the amendment be objected to, "the passing of the Bill that Session would be endangered, and therefore he was prepared to ask the House to agree to them".[117] The Commons agreed, and, five days later, the Act received the Royal Assent.[118]
10. Originality, Ownership, and protecting the Art Market
The third of the "great principles" upon which previous copyright legislation was based, in the opinion of the Athenæum, was that any registered work should also be "new and original".[119] The Sculpture Act 1814 had previously established the requirement that protected works be "new and original",[120] as had the Copyright of Designs Act 1842,[121] which formula had also been adopted in the 1861 Bill.[122] When the first draft of the 1862 Bill came before the House, however, there was no similar requirement. As with the question of registration, this omission, for the Athenæum would only operate to disadvantage those purchasing works of art, while at the same time benefiting the unscrupulous artist: "From the fact of the words "new and original" picture bring omitted, the artist may, after having sold an original picture ... instantly set up a claim to copyright in a copy of a "repetition" of the same picture and the design thereof". It continued:
"If repetitions of pictures are to be made, there ought to be no deception, no suppression of the fact as to whether the object sold is original and unique, or a copy. The whole matter should be beyond suspicion, if a copyright is to be of any value to artists generally and to the public. We submit that this can only be accomplished by making the registration of the design of the original work a condition precedent to the acquisition of copyright therein; and also making it compulsory, under that entry in the register, to register every copy or repetition of the work in its original form."[123]
Again, in the House of Lords, Lord Overstone intervened, asking why the expression "new and original", used in previous legislation, "had in the present instance been carefully excluded",[124] and proposing that the same be introduced. His suggestion was not followed to the letter, however, in that the final version of the Act provided that the authors of "original" paintings, drawings and photographs with the sole and exclusive right of "copying, engraving, reproducing, and multiplying" their work "by any means and of any size", which protection also extended to the "design" of both paintings and drawings, and the "negative" of the photograph.[125] Why the existing formula that works be "new and original" was abandoned is not clear; what is clear, however, is that the 1862 Act provided the first occasion on which the legislature introduced the requirement that works be "original" as a threshold for copyright protection.
That both the registration system and the "originality" requirement were incorporated within the Act to address potential "misconduct" on the part of the artistic community, and so secure the interests of the art market in general, is of some interest. That the legislation had to navigate and resolve these tensions between the competing concerns of the artist and his or her patron, was also manifest in relation to the question of ownership of the copyright in a work purchased from an artist, or produced upon commission. In 1878, the Royal Commissioners' Report on copyright, would refer to this as "[t]he most difficult question with relation to fine arts which we have had to consider".[126]
When the 1861 Bill was discussed in the Commons upon its second reading, concern had been raised about the manner in which it proposed to secure the copyright in a work to the artist regardless of the fact that he might have sold the work to another.[127] On this point, Mr Walter, the M.P. for Berkshire, remarked that "the effect of [the legislation] would be that any person who purchased a picture after the passing of the Act ... would be deprived of the power of permitting any friend to copy it, or of having it engraved himself".[128] He continued:
"He was persuaded that very few persons would like to purchase works of art with any such conditions attached to them. The House had seen many a curious tenant-right Bill, but it appeared to him that to allow an artist, after he had sold a picture, to retain a copyright in it, and thereby to deprive the real owner of those rights which the artist originally enjoyed, was about as unreasonable a proposition as had ever been submitted to Parliament ... He regarded [the clause] as a great infringement upon the liberty of the subject, and if he wanted to have a picture copied he should consider such an enactment as an unwarrantable interference with this right of property."[129]
When Bethell, the Attorney-General (as he was then), addressed this criticism he responded by reminding the House that anyone who wanted to do so could purchase a picture "‘out and out' giving a corresponding price for it; and, if he bought the copyright, he would then hold the picture free from every description of interference". Nevertheless, he pressed: "If, however, he bought the picture, simply as a picture, he would then have the gratification and delight resulting from its contemplation; but was it right that he should have copies and engravings made from it, using it for a different purpose from that for which the artist sold it?"[130]
Regardless of Bethell's comments, the 1862 Bill revised the original wording of the previous Bill to provide that when any work was sold for the first time, "the Person so selling or disposing of the same shall not retain the Copyright thereof unless it be expressly reserved to him by Agreement in Writing, signed at or before the Time of such Sale or Disposition, by the Vendee or Assignee of the Painting or Drawing".[131] This, in the opinion of the Athenæum, was scarcely an improvement, in that it still offered no benefit or security for the purchaser of the picture:
"As the section stands, it means that when an artist has acquired a copyright by executing a work, that copyright is to cease, unless when he first sells such work his purchaser signs an agreement for the purpose of reserving the copyright to the artist. It follows, that where an artist thus reserves his copyright, he will have the exclusive privilege of making as many copies or repetitions of his work as he pleases; - but where the purchaser declines to enter into such an agreement ... then that copyright will thereupon cease, and the artist will consequently, as at present, be able to make and sell as many unauthorized copies and repetitions of the work as he please; the only difference being, that he will not have the monopoly for that purpose."[132]
As was the case with the provision on registration, the substance of the Bill was amended in the Lords, and when the Act was passed it included the presumption that, when first sold, the copyright in a work passed to the purchaser at the same time unless the seller specifically retained the copyright therein by "agreement in writing".[133] Moreover, the final version of the Act also extended this presumption of copyright ownership to those individuals who commissioned specific works for "a good or a valuable consideration".[134] This aspect of the legislation was almost certainly introduced as a consequence of, once again, Lord Overstone's intervention on the same.[135]
11. Domestic Legislation and the Work of Foreign Artists
One substantive aspect of the 1862 Act remains for discussion concerning the question of who was entitled to the benefit of the protection of the legislation. When the Copyright Committee of the Society of Arts reported in March 1858, they noted that, in addition to the problems which the current copyright posed for British artists:
"[O]ur Artistic Copyright laws are unjust in their operation upon the Subjects of those foreign States who have entered into International Copyright Conventions with Her Majesty, inasmuch as such treaties are based upon the principle of reciprocity, and that while under those treaties the works of British artists first published in the British dominions are protected from piracy in within the territory of the foreign State named in any such treaty, no similar protection is afforded in the British territories in respect of the works by artists of such foreign States."[136]
To remedy the same, they suggested that any Bill prepared to amend the various defects of the law, "should likewise protect all works of Art by alien authors (whether friends or enemies), although executed or first published in any Foreign State".[137] Like the French decree of 28 March 1852,[138] the Committee were recommending that the new legislation should be truly universal in its scope and effect. The 1861 Bill followed this suggestion in providing that the author of any work made "in any place out of the British Dominions" was to be entitled to copyright protection "whether he be a British Subject or not".[139] No previous domestic copyright Act had ever made reference to the protection of work created (or indeed first published) outside the British Dominions,[140] nevermind suggesting that such protection should extend to the work of foreign authors. Blaine, in his pamphlet on the 1861 Bill, described this provision as "a liberal and noble step in the right direction".[141]
When the first draft of the 1862 was presented to the Commons, while not as explicit as the 1861 Bill, it nevertheless provided that "[t]he author of every painting, drawing, and photograph, which shall be made ... either in the British Dominions or elsewhere" would be entitled to copyright protection.[142] When discussing this aspect of the proposed legislation, the Athenæum, however, was less generous than Blaine:
"[It] ignores the previous policy of Parliament in passing the International Copyright Acts; it inclines not only to British artists and photographers, but also to those of the whole world. If this measure become law, the curious and not very creditable anomaly in our legislation will exist, that a foreign author of the most trumpery "picture, drawing or photograph," made or first published out of the British dominions, will be invested with such a copyright as no foreign literary author, composer, engraver or sculptor will enjoy in respect of his works, first made or published abroad. Can these facts have been duly considered?"[143]
A subsequent court might, of course, have confined the scope of the legislation to the work of British subjects, in line with the nationalistic sentiments expressed in decisions such as Clementi v. Walker (1824),[144] and Chappell v. Purday (1845).[145] The point, however, would not be subject to litigation, for the wording of the first section was altered in the Lords to specifically limit the operation of the legislation to an author "being a British subject or resident within the Dominions of the Crown".[146] This amendment, in effect, brought the legislation into line with the decision of the House of Lords in Jeffreys v. Boosey (1854), in which Lord Cranworth (1790-1868), when discussing what protection a foreign author might enjoy under British copyright legislation, did indicate that the concept of the "British subject" could include "all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance".[147]
12. Conclusion
For many, the rationale for extending the law of copyright to the fine arts, in the guise of paintings, drawings, and photographs, was simple enough; as Bethell remarked on 6 May 1861, it was "an attempt for the first time to do justice to the artists of this country". "[T]he right of the author to protection had been recognized by the Legislature"; "[w]as it not just", he continued, "to extend the same protection to the artist?"[148] Similarly, in the House of Lords on 22 May 1862, Earl Stanhope, put it in the following terms:
"[T]he claims of the artist to a copyright in his works were quite as valid as those of the literary author in his; and if they at once admitted the principle that a man should be protected in the enjoyment of his intellectual productions, and if they allowed a certain period of possession to the author for his benefit before the public were put in full and free enjoyment of the work, he did not see how Parliament could refuse the same privilege to the artist as it has already been granted to the author. There was no difference in principle between a poem and a picture."[149]
And yet, what was being proposed was, by no means, a mechanistic expansion of the existing principles and doctrine of copyright law to a new category of subject-matter, that is, "works of fine art". Indeed, the 1862 Bill, in its earliest incarnation, incorporated elements that would have signalled a radical departure from established copyright norms. Two aspects of the Bill stand out in this regard: the need for registration; and the protection of the works of foreign authors.
When first introduced to the House of Commons by Palmer, the Solicitor General, the 1862 Bill proposed that copyright protection should arise at the point of creation and that it should not be contingent upon or subject to the formality of registration. Within fifty years, of course, this proposition would become a cornerstone of the copyright system, both domestic and international. Indeed, the Athenæum, by the 1880s, entirely abandoned its professed adherence to this "great principle" of copyright law: "We contend that when a right has been recognized, any formality, the performance of which is made a condition precedent to obtaining that right or to enforcing the remedy which is to protect it, is an evil".[150] In 1862, however, that copyright works need not be registered proved too disruptive a prospect to be easily accommodated within the existing copyright framework.
Arguably more interesting, however, was the fact that, given the extent to which the need for legislation was predicated upon the existing gap between domestic law and international obligation (in the guise of the norms of the International Copyright Act 1844), the first draft of the Bill should, apparently with government approval, depart from the central principal underpinning Britain's contemporary (and continuing) attitude to international copyright relations - that is, the principle of reciprocity. Within the context of literary copyright, the courts had, for the thirty years prior to the House of Lords' decision in Jeffreys v. Boosey (1854), wrangled with the question as to what rights, if any, foreign authors should enjoy under British domestic copyright law. In Jeffreys it was decided that a foreign author had to be resident within the Empire at the time of publication if they were to enjoy copyright protection under the UK legislative regime. During that same period three International Copyright Acts had been passed to address this issue, all of which proceeded upon the basis of bilateral negotiation and reciprocal protection.[151] And yet, the 1862 Bill proposed to take the unprecedented step of abandoning both residency and reciprocity as key aspects of Britain's international copyright relations. In short, but for the intervention of the House of Lords, a British statutory measure would have embraced the same principle of universal protection that lay at the heart of the French decree of 1852.[152] Britain, of course, would subsequently play a significant role in shaping the contours and securing the success of the Berne Convention in the mid-1880s.[153] Had the original draft of the 1862 Bill been passed without amendment, the implications this might have had for the future of the copyright regime, both domestically and internationally, might have been far-reaching indeed.
In any event, leaving to one side these aspects of the 1862 Act that were lost as it passed through parliament, the legislation did otherwise innovate in a number of respects. In the first place, it de-coupled the copyright term from the event of publication, providing that the life of the author should be the sole criterion by which to calculate the duration of the same. Second, in its section addressing the fraudulent production and sale of works of art, it provided artists with a new form of ‘moral rights' protection. In short, work that artists had not produced could not be falsely attributed to them, and they were entitled to prevent others from altering their work during their lifetime without their consent.[154] Finally, this was the first British statute to introduce the concept of "originality" as the standard threshold for copyright protection. As the discussions which prompted the introduction of this term made clear, however, its inclusion had little to do with origination, authorship, or the conceit of the creative individual. Rather, the inclusion of the term was designed to ensure that artists, after selling their own work, could not act in a manner that would devalue that work (financially) by creating and selling "repetitions" of the same. That is, the term was introduced to operate as a restraint upon the autonomy and actions of the artist, and to secure the economic interests of the art market.
13. References
Government papers and legislation
Fine Arts Copyright Act, 1862, 25 & 26 Vict., c.68
International Copyright Act, 1844, 7 & 8 Vict., c.12
International Copyright Act, 1838, 1 & 2 Vict., c.59
Engravers' Copyright Act, 1735, 8 Geo.II, c.13
Models and Busts Act, 1798, 38 Geo.III, c.71
Engravers' Copyright Act, 1766, 7 Geo.III, c.38
Copyright Law Amendment Act, 1842, 5 & 6 Vict., c.45
Sculpture Copyright Act, 1814, 54 Geo.3, c.56
Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15
Copyright Act, 1814, 54 Geo.III, c.156
An Act to Consolidate and Amend the Laws Relating to the Copyright of Designs for Ornamenting Articles of Manufacture, 1842, 5 & 6 Vict., c.100
Report of the Royal Commission on Copyright, 1878, xxiv, C.2036
Cases
Sayre v. Moore (1785) 1 East 362
De Berenger v. Wheble (1819) 2 Stark 548
Newton v. Cowie (1822) 4 Bing 234
Bailey v. Harrison (1849) The Times, 28 Feb. 1849
Martin v. Wright (1833) 6 Sim. 297
Moon v. Broker (1840) The Times, 27 June 1840
R v. Closs (1858) Dears & Bell 460
Clementi v. Walker (1824) 2 B&C 861
Chappell v. Purday (1845) 14 M&W 303
Jeffreys v. Boosey (1854) 4 HLC 815
Books and articles
Alberts, R.C., Benjamin West: A Biography (Boston: Houghton Mifflin, 1978)
Blaine, D.R., On the Laws of Artistic Copyright and their Defects (London: Murray, 1853)
Blaine, D.R., Suggestions on the Copyright (Works of Art) Bill (London: Hardwicke, 1861)
Bruntjen, S.H.A., John Boydell, 1719-1804: A study of art patronage and publishing in Georgian London (New York: Garland Publishing, 1985)
Clarke, G., The Photograph, (Oxford: Oxford University Press, 1997)
Copinger, W.A., The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870)
Friedman, W.H., Boydell's Shakespeare Gallery (New York: Garland Publishing, 1967)
Hutchison, S.C., The History of the Royal Academy 1768-1968 (London: Chapman and Hall, 1968)
Lippincott, L., Selling Art in Georgian England: The Rise of Arthur Pond (New Haven and London: Yale University Press, 1983)
Montagna, D., "Benjamin West's The Death of General Wolfe: A Nationalist Narrative", American Art Journal, 13 (1981): 72-88
Pears, I., The Discovery of Painting. The Growth of the Interest in Arts in England 1680-1768 (New Haven, Connecticut & London: Yale University Press: 1988)
Pointon, M., "Portrait Painting as a business enterprise in London in the 1780s", Art History, 7 (1984): 187-205
Rawlinson, W.G., The Engraved Work of J.M.W. Turner, 2 vols (London: Macmillan and Co, 1908), Vol.1
Reitlinger, G., The Economics of Taste, The Rise and Fall of Picture Prices 1760-1960 (London: Barrie and Rockliff, 1961)
Report of the Artistic Copyright Committee to the Council (London: Bell and Daldy, 1858)
Sherman, B., and Bently, L., The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999)
Talbot, J., Francis Frith (London: Macdonald, 1985)
Turner, J., ed., The Dictionary of Art, v.11 (London: MacMillan Publishers Ltd., 1996)
von Erffa, H., and Staley, A., The Paintings of Benjamin West (London: Yale University Press, 1986), 62
Wendorf, R., Sir Joshua Reynolds, The Painter in Society (Cambridge, Massachusetts: Harvard University Press, 1996)
Wilson, D., Francis Frith's Travels: A Photographic Journey through Victorian Britain (London: J.M. Dent & Sons, 1985)
[1] International Copyright Act, 1844, 7 & 8 Vict., c.12; see: uk_1844.
[2] International Copyright Act, 1838, 1 & 2 Vict., c.59; see: uk_1838.
[3] International Copyright Act, 1844, s.2.
[4] Ibid., s.5.
[5] Ibid., s.3.
[6] Ibid., s.4.
[7] Ibid., s.5.
[8] Subject, that is, to any specific exceptions contained within the Order in Council granting such copyright protection.
[9] See: uk_1798.
[10] B. Sherman, and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 126.
[11] Ibid., 127. In a Report prepared by the Artistic Copyright Committee for the Society of Arts, designed to address the "exceedingly defective and unjust" state of British artistic copyright law, one of the chief defects of the current law was recorded as follows: "That our Artistic Copyright laws are unjust in their operation upon the Subjects of those foreign States who have entered into International Copyright Conventions with Her Majesty, inasmuch as such treaties are based upon the principle of reciprocity, and that while under those treaties the works of British artists first published in the British dominions are protected from piracy in within the territory of the foreign State named in any such treaty, no similar protection is afforded in the British territories in respect of the works by artists of such foreign States"; Journal of the Society of the Arts, 6 (1857-58): 294. See also the observation of Earl Granville on 22 May 1862, in the House of Lords, upon moving the second reading of the Bill: "[S]ome change was required in our law in order to enable us to avail ourselves of the provisions to international treaties with reference to this subject"; Hansard, 3rd Ser., 166 (1862): 2013.
[12] In general see: I. Pears, The Discovery of Painting. The Growth of the Interest in Arts in England 1680-1768 (New Haven, Connecticut & London: Yale University Press: 1988), 55-106.
[13] Engravers' Copyright Act, 1735, 8 Geo.II, c.13; see also: uk_1735.
[14] Models and Busts Act, 1798, 38 Geo.III, c.71; see: uk_1798.
[15] See in general: G. Reitlinger, The Economics of Taste, The Rise and Fall of Picture Prices 1760-1960 (London: Barrie and Rockliff, 1961); L. Lippincott, Selling Art in Georgian England: The Rise of Arthur Pond (New Haven and London: Yale University Press, 1983).
[16] See in general: Lippincott, Selling Art, and M. Pointon, "Portrait Painting as a business enterprise in London in the 1780s", Art History, 7 (1984): 187-205.
[17] See Lippincott, 78. History paintings in particular were often regarded as something of a gamble for both the painter and the purchaser; ibid., 77.
[18] Reitlinger, 68. Reitlinger writes that the individual exhibition of large scale works, whether history paintings or religious allegories, "continued to be very lucrative into the 1820's. That a fall in the popularity of this sort of entertainment took place between the 1820's and the 1860's was due less to a lack of public interest in painting than to the growing number of competitors"; ibid., 69.
Aside from the vagaries of public taste, the exhibition of a work carried its own risks in terms of impacting upon an artist's standing with the Royal Academy. As Lippincott explains, "[t]he Royal Academy frowned on member or would-be artists displaying their work outside its galleries. Because the Academy maintained and disbursed the only pension fund available to painters, and only to its own members, exclusion from the group meant loss of the only economic safety-net available"; Lippincott, 78.
[19] When the Royal Academy drafted the rules pertaining to its first exhibition in 1769, it addressed this phenomenon of copies in the marketplace. The rules provided that "[n]o Picture copied from a Picture or Print, a Drawing from a Drawing; a Medal from a Medal; a Chasing from a Chasing; a Model from a Model, or any other species of Sculpture, or any Copy be admitted in the Exhibition"; quoted in Hutchison, 54. Similarly, when the Academy subsequently advertised for exhibitors, they were keen to stress the same: "N.B.- No Copies"; Royal Academy Council Minutes, Vol.I, 11, quoted in Sidney C. Hutchison, The History of the Royal Academy 1768-1968 (London: Chapman and Hall, 1968), 55.
[20] Wendorf recounts the anecdote as follows: "[I]n 1786, Reynolds would write again to [the Duke of Rutland] and patron about [his Venus] once it had been exhibited at the Royal Academy: ‘In regard to the Venus, the Duke of Dorset is to have it, not for himself, but for a French marquis, whose name I have forgot; he is to give me 400 guineas for it. I have since done another with variations, which I think is better than the first; but I am not fond of shewing it till the other is disposed of.' Here ... Reynolds discloses how shrewdly he could capitalize on his own limitations. The first Venus is virtually forgotten; the painter scrupulously notes the handsome price it fetched, but cannot remember whose room it will grace. Practice, moreover, has produced a second, more attractive Venus that differs from its predecessor not only in its ‘variations' but in the fact that it is ‘better'. The calculating author of the second painting will not allow it to enter the marketplace until the transaction for the first is complete"; Richard Wendorf, Sir Joshua Reynolds, The Painter in Society (Cambridge, Massachusetts: Harvard University Press, 1996), 90-91.
[21] Alberts writes about the exhibition as follows: "The public stood in long lines to get into the gallery to see it ... It was like no other modern picture Englishmen had seen. It made the viewer feel that he was present at and a part of a great historic event of his time, that he was an accessory with others in a tragic but inspiring occasion"; R.C. Alberts, Benjamin West: A Biography, 109.
[22] Ibid; see also H. von Erffa, and A. Staley, The Paintings of Benjamin West (London: Yale University Press, 1986), 62. For commentary on the different versions of West's painting of Wolfe, see D. Montagna, "Benjamin West's The Death of General Wolfe: A Nationalist Narrative", American Art Journal, 13 (1981): 72-88.
[23] In general see: S.H.A. Bruntjen, John Boydell, 1719-1804: A study of art patronage and publishing in Georgian London (New York: Garland Publishing, 1985); W.H. Friedman, Boydell's Shakespeare Gallery (New York: Garland Publishing, 1967).
[24] Alberts, 110.
[25] Ibid.
[26] Friedman, 39-40.
[27] Alberts, 110. West died in 1820 with a fortune worth in excess of £100,000; Reitlinger, 70.
[28] Alberts, 110.
[29] von Erffa and Staley make a similar claim as to the impact and influence which the painting and the subsequent engraving had upon the art market: "The Death of General Wolfe ... effectively combined different genres - topical illustration, portraiture, history painting - in a manner which, if not entirely novel, did have far-reaching consequences ... Testimony to the painting's popularity is provided by the number of replicas painted by West or in his studio and by countless copies after it by other hands. The revolution Reynolds predicted it would bring about did come, and by the end of the eighteenth century leading artists everywhere were devoting their highest efforts to ambitious paintings monumentalizing recent historical events ... Outside of England, the Death of General Wolfe and West's other historical compositions, like those of Gavin Hamilton before him, became widely familiar through the medium of reproductive prints"; von Erffa and Staley, 62.
[30] About West in particular, von Erffa and Staley write that, after Wolfe: "Throughout the rest of the eighteenth century, reproductive prints after West's major paintings continued to appear regularly, giving his compositions an international circulation and allowing him to expand his income by appealing to a public far larger and more diffuse than they tiny fraction of it that could afford to buy large paintings. In expanding the market for works of art, the flourishing print industry encouraged and responded to popular taste, and so did painters such as West"; ibid., 62.
[31] Reitlinger, 70.
[32] See von Erffa and Staley, 63, and Reitlinger, 68.
[33] Blaine records that whereas Landseer's painting Peace and War sold for £1260, the copyright for engraving the same was sold for £3150; D.R. Blaine, Suggestions on the Copyright (Works of Art) Bill (London: Hardwicke, 1861), 8. For an instance of litigation involving Edwin Landseer's work, see Moon v. Broker (1840) The Times, 27 June 1840, in which Moon, a printseller who had acquired "the exclusive right of engraving and publishing copies" of a Lanseer painting, A Distinguished Member of the Humane Society, "for a large pecuniary consideration, and an assignment made to him of the copyright in the engraving", secured an injunction to prevent the defendant reproducing the same by means of "a novel and singular process, by which a copy in oil-colours was taken from the engraving in a trifling degree smaller than the original".
[34] See W.G. Rawlinson, The Engraved Work of J.M.W. Turner, Vol.1 (London: Macmillan and Co, 1908).
[35] Reitlinger, 98.
[36] Sayre v. Moore (1785) 1 East 362. About Mansfield's dictum, Blaine, writing in 1853, commented: "Notwithstanding the very high authority of the great judge who tried that case, and the previous dictum of Lord Mansfield on the point, it may be doubted whether his direction on that occasion will stand the test of further inquiry. If it be sound, then it is obvious that the value of the copyright which an artist has in the invention or design of his picture is comparatively small; and that the enormous capital embarked in the copyright of pictures and engraving them, is placed in the greatest jeopardy; because it follows that anyone who can surreptitiously or otherwise gain access to a picture, either before or after it is engraved, so as to obtain sketches from, or a copy of it, may thus proceed to engrave the picture, provided he does not copy from the authorized engraving"; D.R. Blaine, On the Laws of Artistic Copyright and their Defects (London: Murray, 1853), 25-26.
[37] Sayre v. Moore, 362; Lord Mansfield observed: "[W]hoever has it in his intention to publish a chart may take advantage of all prior publications. There is no monopoly of the subject here ... but upon any question of this nature the jury will decide whether it be a servile imitation or not".
[38] De Berenger v. Wheble (1819) 2 Stark 548.
[39] Ibid.
[40] Ibid., 548-49.
[41] Engravers' Act, 1735, c.13.
[42] Ibid., s.1.
[43] See: uk_1735.
[44] Engravers' Copyright Act, 1766, 7 Geo.III, c.38, s1.
[45] Ibid., s.2.
[46] On this see Newton v. Cowie (1822) 4 Bing 234, in which Best CJ observed as follows: "[The] engraver is always a copyist, and if engravings from drawings were not to be deemed within the intention of the legislature, these acts would afford no protection to that most useful body of men, the engravers ... The first engraver does not claim the monopoly of the use of the picture from which the engraving is made; he says, take the trouble of going to the picture yourself, but do not avail yourself of my labour, who have been to the picture, and have executed the engraving"; ibid., 245-46.
[47] Blaine, On the Laws of Artistic Copyright, 26.
[48] Ibid.
[49] Ibid., 27. See also Blaine's comment in the Appendix to the Report prepared for the Society of Arts on artistic copyright: "Unless a picture be engraved ... before such a picture be publicly exhibited, no Copyright can, in my opinion, be acquired even in the design of the picture for the purposes of engraving; it is forever lost to the artist"; Journal of the Society of Arts, 6 (1857-58): 298.
[50] Bailey v. Harrison (1849) The Times, 28 Feb. 1849.
[51] Blaine, about the "practice amongst Artists as to their claims to Copyright", wrote as follows: "When an artist sells his picture, it seems to be generally understood that the copyright for the purpose of engraving passes with the picture to the purchaser, unless the artist at the time of the sale either verbally or in writing reserves the copyright. No case appears in the books in which this point has ever been discussed or decided, and it may well be doubted whether such a practice, which by some persons is only asserted to amount to a usage or custom, could be established in any court of law or equity in this country, even assuming that no legislative enactment existed on the subject. It is but natural justice that the artist should have the whole profits allowed by law to be derived from the invention of his picture as well as its execution. Each work he produces may be a double source of direct profit to him, first, by sale of the picture; second, by the exercise or sale of the copyright, or the exclusive right of multiplying copies of the picture by any of the various processes of engraving"; Blaine, On the Laws of Artistic Copyright, 39-40.
[52] Journal of the Society of Arts, 6 (1857-58): 297.
[53] Martin v. Wright (1833) 6 Sim. 297.
[54] Ibid., 298.
[55] Ibid., 298-99. On the separate claim, that the defendant ought not to have represented the diorama as Martin's picture [misattribution], Shadwell continued: "[The diorama] must either be better or worse; if it is better, Martin has the benefit of it; if worse, then the misrepresentation is only a sort of libel, and this Court will not prevent the publication of a libel. If Martin had exhibited his picture as a diorama, then he might have been entitled to an injunction"; ibid., 299.
[56] Report of the Artistic Copyright Committee to the Council (London: Bell and Daldy, 1858).
[57] See: Journal of the Society of Arts, 6 (1857-58): 91.
[58] Ibid., 294.
[59] Blaine, Suggestions on the Copyright (Works of Art) Bill, 6, n.1; see: Resolution of Diet, 19 June, 1845, Art.1.
[60] Journal of the Society of Arts, 6 (1857-58): 455-56.
[61] Journal of the Society of Arts, 7 (1858-59): 747.
[62] Journal of the Society of Arts, 8 (1859-60): 432.
[63] Journal of the Society of the Arts, 9 (1860-61): 136.
[64] Journal of the House of Commons, 116 (1861): 146; see also Hansard, 3rd Ser., 162 (1861): 543.
[65] Quoted in Blaine, Suggestions on the Copyright (Works of Art) Bill, 5.
[66] Journal of the Society of the Arts, 9 (1860-61): 576, 583-84.
[67] See: uk_1886.
[68] Not everyone was convinced, however, that the forthcoming International Exhibition provided sufficient grounds for introducing the Act at this time. A commentator for the Athenæum, for example, remarked as follows: "Much has been said as to the importance of obtaining a desired act prior to the opening of the International Exhibition next May, so as to protect the works of foreign artists which will be exhibited there. This argument, it seems to us, is not of much importance, because a similar temporary act to that passed in 1851 will doubtless be obtained for the purpose of protecting from piracy persons exhibiting new inventions at the International Exhibition of 1862. Nothing, therefore, will be easier than to extend that protection to new and original works of Fine Art either by British or foreign artists", The Athenæum, 1 Feb. 1862, 154.
[69] Journal of the Society of Arts, 8 (1859-60): 432.
[70] Indeed, when the Committee met with Bethell on 17 January 1861, it was resolved that sub-committees of the Artistic Copyright Committee would be appointed "to confer with the Attorney General in settling the terms of the Bill"; Journal of the Society of the Arts, 9 (1860-61): 136. Moreover, at the Annual General Meeting of the Society, in June 1861, it was reported that "[t]he Bill [introduced into the Commons by Bethell] though substantially the same as that of last year, has been, under the superintendence of the Attorney General, greatly improved, and as the members are aware, has been introduced into the House of Commons as a Government Bill, and it now stands waiting for Committee"; ibid., 583.
One point of difference between the 1861 Bill and the recommendations of the Copyright Committee concerned the penalties that would be imposed for copyright infringement. Whereas the Copyright Committee had recommended a penalty "of not less than £5, and not exceeding double the value of the design or work pirated, to be recoverable for each offence" (Journal of the Society of Arts, 6 (1857-58): 295), the 1861 Bill imposed a penalty for every offence of "a sum not exceeding one hundred pounds" (clause 12).
[71] In general see: Journal of the Society of Arts, 6 (1857-58): 294-95.
[72] 1861 Bill, clause 3; in relation to works of architecture, the protection was of a limited nature, in that once the building had been constructed, then nothing in the proposed Act "shall preclude any Person from making any Plans, Sections, Elevations, or Models of the same, or any Part thereof, and constructing any Building therefrom, provided such Plans, Sections, Elevations, or Models be made and executed, not from those of the Author of the Design thereof, but only from the said Building"; ibid.
[73] Ibid.
[74] 1861 Bill, clause 6; this also included the work of artists who had died within ten years before the passing of the Act.
[75] 1861 Bill, clause 5.
[76] R v. Closs (1858) Dears & Bell 460; see W.A. Copinger, The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870), 196.
[77] The original painting had been sold by Linnell for £180; Closs sold the forgery for £130. See: Journal for the Society of Arts, 6 (1857-58): 298.
[78] R v. Closs, 466. On indictment Closs had also been convicted as a charge of committing a cheat at common law which conviction was similarly quashed. About this, Cockburn LJ said: "[W]e have carefully examined the authorities, and the result is that we think if a person, in the course of his trade openly and publicly carried on, were to put a false mark or token upon an article, so as to pass it off as a genuine one when in fact it was only a spurious one, and the article was sold and money obtained by means of that false mark or token, that would be a cheat at common law"; ibid., 466. About this particular case, however, Cockburn LJ continued: "[T]he prisoner would have been liable to have been convicted if that count had been properly framed, but we think that count is faulty in this respect, that, although it sets out a false token, it does not sufficiently shew that it was by means of such false token the defendant was enabled to pass oft the picture and obtain the money"; ibid., 467.
[79] Journal for the Society of Arts, 6 (1857-58): 298.
[80] Ibid., 294-95.
[81] Compare the 1861 Bill, clauses 13, 14, with the 1862 Act, s.7.
[82] 1861 Bill, clause 14.
[83] Ibid. This provision was included in s.7 of the 1862 which provided that "where the Author of Maker of any Painting, Drawing, or Photograph, or Negative of a Photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty during the Life of the Author or Maker of such Work, without his Consent, to make or knowingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, or any Part thereof, as or for the unaltered Work of such Author or Maker".
[84] Hansard, 3rd Ser., 166 (1862): 2019.
[85] See the Journal of the House of Commons (CJ), 116: 146, 167, 173, 181, 191, 217, 229, 235, 242, 251, 265, 268, 277, 288, 297, 319, 338, 353, 361, 374, 382, 399.
[86] Hansard, 3rd Ser., 165 (1862): 843, and 166 (1862): 324.
[87] Hansard, 3rd Ser., 165 (1862): 843.
[88] Draft Bill, 27 Feb. 1862, clause 1.
[89] Hansard, 3rd Ser., 165 (1862): 1890-91.
[90] Ibid., 1891.
[91] G. Clarke, The Photograph, (Oxford: Oxford University Press, 1997), 48.
[92] This was followed by other works such as his limited edition version of The Queen's Bible (1862) (illustrated with his photographs of the Holy Land) and The Gossiping Photographer at Hastings (1864); see J. Turner, ed., The Dictionary of Art, v.11 (London: MacMillan Publishers Ltd., 1996). For more on Frith see J. Talbot, Francis Frith (London: Macdonald, 1985), and D. Wilson, Francis Frith's Travels: A Photographic Journey through Victorian Britain (London: J.M. Dent & Sons, 1985).
[93] Hansard, 3rd Ser., 165 (1862): 1891.
[94] This operated to extend the protection of literary copyright from a bifurcated twenty-eight year term to one that was to last for "the natural life of [the] author, and for the further term of seven years" or for 42 years, whichever period was longer; Copyright Law Amendment Act, 1842, 5 & 6 Vict., c.45, s.3.
[95] Hansard, 3rd Ser., 165 (1862): 2016-17.
[96] Ibid., 2019.
[97] Section 1 set out that: "The Author ... of every original Painting, Drawing, and Photograph ... shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such Painting or Drawing, and the Design thereof, or such Photograph, and the Negative thereof, by any Means and of any Size, for the term of the natural Life of the Author, and Seven years after his Death".
[98] The Athenæum, 8 March 1862, 334.
[99] That the duration of the copyright term should be the same as that for works protected under the 1842 Act was also in line with the recommendation which Blaine had made in his 1853 treatise On the Laws of Artistic Copyright and their Defects.
[100] Copyright Law Amendment Act, 1842, s.3. The Act also provided that if the work in question was published after the death of the author, then the term would last for forty-two years from the point of first (post mortem) publication; ibid.
[101] The Copyright Law Amendment Act, 1842, s.3 provided: "[T]he copyright in every book which shall after the passing of this Act be published in the Lifetime of its Author shall endure for the natural life of such Author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns: provided always, that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book, the copyright shall in that case endure for such period of forty-two years; and that the copyright in every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which the book shall be first published, and his assigns"; the Sculpture Copyright Act, 1814, 54 Geo.3, c.56, concerned works that had been "put forth or published" (s.2); previously the Models and Busts Act, 1798, had provided protection for works "from the time of first publishing the same" (s.1); both of the Engravers' Acts, 1735 (s.1), and 1766 (s.7), protected works from the day of first publication. There is, however, one exception in the guise of the Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15, which provided the right to represent the work in public while the manuscript of the play remained "not printed and published"; once published however, both the copyright (in accordance with the Copyright Act, 1814, 54 Geo.III, c.156, s.4) and the representation right lasted for 28 years from the day of first publication of the same and "if the Author or Authors, or the Survivor of the Authors" was still living at the end of that time then for the remainder of his life (s.1).
[102] Fine Arts Copyright Act, 1862, s.1.
[103] Draft Bill, 15 April 1861, clause 5.
[104] Draft Bill, 27 Feb. 1862, clause 1.
[105] Journal of the Society of Arts, 6 (1857-58): 296.
[106] Blaine, Suggestions on the Copyright (Works of Art) Bill, 8. He continued: "As much of the value of a work of art depends upon its being unique, copies of it not only tend to diminish the value of the original, but likewise to cast a doubt upon its originality. Hence it is that purchasers feel deeply aggrieved by the practice of distinguished artists, in making repetitions of their works"; ibid., 9.
[107] The Athenæum, 8 March 1862, 334.
[108] The Athenæum, 29 March 1862, 429.
[109] The Athenæum, 1 February 1862, 154.
[110] The Athenæum, 31 May 1862, 735.
[111] Draft Bill, 20 Mar. 1862, clause 4.
[112] Hansard, 3rd Ser., 166 (1862): 324.
[113] Ibid., 2015.
[114] Ibid., 2094.
[115] Ibid., 2015.
[116] Fine Arts Copyright Act, 1862, s.4.
[117] Hansard, 3rd Ser., 168 (1862): 781.
[118] CJ, 117: 379.
[119] The Athenæum, 8 March 1862, 334.
[120] Sculpture Copyright Act, 1814, s.1.
[121] An Act to Consolidate and Amend the Laws Relating to the Copyright of Designs for Ornamenting Articles of Manufacture, 1842, 5 & 6 Vict., c.100.
[122] Draft Bill, 15 April 1861, clause 3.
[123] The Athenæum, 5 April 1862, 466.
[124] Hansard, 3rd Ser., 166 (1862): 2014.
[125] Fine Arts Copyright Act, 1862, s.1; this however was subject to the proviso in s.2 that "[n]othing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwithstanding that there may be copyright in some representation of such scene or object".
[126] Report of the Royal Commission on Copyright (1878), xxiv, C.2036, xix.
[127] Clause 3 of the 1861 Bill provided that "The Author of every Picture, Work of Sculpture, and Engraving, which shall be made, or for the first Time sold or disposed of, after the Commencement of this Act, and his Assigns, shall have the sole and exclusive Right of copyright, reproducing, and multiplying such Work, and the Design thereof, by any Means, of any Size, and for any Purpose, for the Term of the natural Life of such Author, and Thirty Years after his Death".
[128] Hansard, 3rd Ser., 162 (1861): 1632.
[129] Ibid. See also the comments of: Lord Fermoy, ibid., 1633; and Lord Overstone (22 May 1862), Hansard, 3rd Ser., 166 (1862): 2014.
[130] Hansard, 3rd Ser., 162 (1861): 1635.
[131] Draft Bill, 27 Feb. 1862, clause 1.
[132] The Athenæum, 8 March 1862, 334.
[133] Fine Arts Copyright Act, 1862, s.1. The Act did provide, however, that the purchaser, or assignee, would not be entitled to any copyright "unless at or before the Time of such Sale or Disposition, an Agreement in Writing, signed by the Person so selling or disposing of the same, or by his Agent duly Authorized, shall have been made to that Effect"; ibid.
[134] Ibid., s.1.
[135] He argued, for example, that "[i]f a man engaged an artist to paint for him a portrait of himself or a member of his family, or if he commissioned him to paint for him a picture on any given subject, the copyright of that picture ought to carry with it the copyright, unless that be reserved by some special condition", and that, "if Parliament were prepared to grant a copyright, it ought at once and absolutely, without necessity for negotiation or arrangement between the parties, to vest that right in the employer, and not in the artist"; Hansard, 3rd Ser., 166 (1862): 2014, 2094. Moreover, the Athenæum, on 14 June, reported that Overstone "has presented a petition against some of its provisions on behalf of several of the most eminent publishers of illustrated books. They especially complain that the measure fails to provide for the interests of employers of artists"; Athenæum, 14 June 1862, 790.
[136] Journal of the Society of Arts, 6 (1857-58): 294.
[137] Ibid.
[138] See: f_1852.
[139] Draft Bill, 15 April 1861, clause 9.
[140] Except, that is, in the context of securing copyright protection for British authors in accordance with the International Copyright Acts.
[141] Blaine, Suggestions on the Copyright (Works of Art) Bill, 24.
[142] Draft Bill, 27 Feb. 1862, clause 1; emphasis added.
[143] The Athenæum, 5 April 1862, 466.
[144] "[T]he Legislature must be supposed to have legislated with a view to British interests and the advancement of British learning. By confining the privilege to British printing, British capital, workmen and materials would be employed, and the work would be within the reach of the British public. By extending the privilege to foreign printing, the employment of British capital, workmen, and materials might be suspended, and the work might never find its way to the British public. Without very clear words, therefore, to shew an intention to extend the privilege to foreign publications, I should think [the Statute of Anne, 1710] must be confined to books printed in this kingdom ... To hold to the contrary would discourage British enterprise, and stop avenues to British knowledge"; per Bayley J, in Clementi v. Walker (1824) 2 B&C 861, 867-68, 870.
[145] "[P]rima facie it must be intended that a British Legislature means only to protect British subjects, and to foster and encourage British industry and talent"; per Pollock CB, in Chappell v. Purday (1845) 14 M&W 303, 317-18.
[146] Fine Arts Copyright Act, 1862, s.1.
[147] Jeffreys v. Boosey (1854) 4 HLC 815, 955. See also the observations of Lord St Leonards: "I think we may fairly consider that it ought not to be denied that, speaking generally, an Act of our own Parliament, having a municipal operation, cannot be held to extend, prima facie, beyond our own subjects. It is not that an Act of Parliament may not, like the common law itself, extend its benefits to foreigners who come here and acquire that which it has been the policy of this country to give them; namely, the rights in a great measure of natural-born subjects. ... an Act of Parliament of this country ... cannot be considered to provide for foreigners, except as both statute and common law do provide for foreigners when they become resident here, and owe at least a temporary allegiance to the sovereign, and thereby acquire rights just as other persons do; not because they are foreigners, but because being here, they are here entitled ... to the general benefit of the law for the protection of their property, in the same way as if they were natural-born subjects"; ibid., 980.
[148] Hansard, 3rd ser., 162 (1861): 1637. Similarly, as Lord Chancellor, Bethell described the introduction of the legislation as "an act of simple justice to artists, and calculated to promote and encourage art"; Hansard, 3rd ser., 166 (1862): 2017.
[149] Hansard, 3rd ser., 166 (1862): 2016.
[150] The Athenæum, 20 March 1886, 393.
[151] See: uk_1838; uk_1844; uk_1852.
[152] See: f_1852.
[153] See: uk_1886.
[154] Fine Arts Copyright Act, 1862, s.7.