Commentary on the Artistic Copyright Bill 1869 (uk_1869)
Elena Cooper, CREATe, University of Glasgow, UK
Please cite as:
Cooper, E. (2018) ‘Commentary on the Artistic Copyright Bill 1869’, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Background: Dissatisfaction with the Fine Arts Copyright Act 1862
The Artistic Copyright Bill 1869
The Royal Commission on Copyright 1878
The Royal Academy’s Memorial on Copyright 1879
Fine Arts Copyright Consolidation and Amendment Bill (No2) (1869) HL 51
This commentary concerns the Artistic Copyright Bill, presented by Lord Westbury to the House of Lords in 1869. While the Bill was unsuccessful, it influenced the recommendations on painting copyright made by the majority of the Royal Commission on Copyright in 1878,1 which, in turn, set the parameters for the painting copyright debates of the late nineteenth century.
Background: Dissatisfaction with the Fine Arts Copyright Act 1862
As Ronan Deazley explains in this Primary Sources collection, the Fine Arts Copyright Act 1862 introduced copyright protection for painting.2 However, as the legislation was debated, concerns were raised about the position of the purchaser of a painting. Purchasers, it was argued, should be free to do what they wished with a painting they acquired, and copyright was perceived to interfere with that freedom.3 Consequently, section 1 of the 1862 Act stated that copyright would be irretrievably lost on first sale of a painting unless express notice was given through a written reservation by either the painter or the purchaser at the point of sale. While some purchasers did reserve copyright,4 many did not and the frequent lapse of copyright on first sale of a painting, became a source of widespread dissatisfaction with the 1862 Act.
Accordingly, just four years after the Act’s passage, in 1866, a Memorial requesting the reform of artistic copyright law was presented to the Society of Arts signed by 133 artists and printsellers.5 The Society of Arts engaged the barrister Delabere Roberton Blaine to draft a Bill. Blaine, as Ronan Deazley’s Commentary on the 1862 Act describes, had advised the Society in the early stages of the campaign leading up to the passage of the Fine Arts Copyright Act 1862. The proposal was laid before the House of Lords in 1868, and then formally introduced as a Bill by Lord Westbury (Richard Bethell) in 1869.6
The Provisions of the 1869 Bill
The 1869 Bill, however, favoured the position of the purchaser of a painting. It had been drafted without reference to the artists that had originally petitioned the Society of Arts.7 In particular, a number of clauses sought to provide purchasers with control over the freedom of artists to produce repetitions of paintings that had been sold; ‘repetition’ was undefined in the Bill, but that term generally denoted a subsequent ‘version’ of the same painting in the same medium rather than a reproduction in a different medium, like engraving. One objective of the Bill, was to enable collectors to control artists’ repetitions, so as to safeguard the uniqueness of a painting as a physical object, a mark of its financial value.
The 1869 Bill sought to achieve this aim, first, through the clause on ownership of copyright: while the painter was the first owner of copyright, copyright would automatically pass to the purchaser on first sale, unless there was a written agreement otherwise.8 Secondly, even where a written agreement was concluded vesting copyright in the painter, the painter was only permitted to produce ‘repetitions’ if that was ‘expressly stipulated’ in the written agreement.9 Further, the 1869 Bill provided for an ‘implied contract’ between artist and copyright owner, in all cases where the purchaser owned copyright: the author warranted to the copyright owner and his assigns, amongst other things, that the work was ‘original’. That implied contract lasted for the full term of copyright.10
The Royal Commission on Copyright 1878
While the 1869 Bill failed on its second reading in the House of Lords, it came to influence the stance taken by the majority of the Royal Commission on Copyright, which reported in 1878. The Royal Commission presented the ownership of painting copyright as ‘the most difficult question’ in artistic copyright: while the evidence from painters was unanimous that they should own copyright, the Royal Commission considered that purchasers assumed that they would acquire copyright. 11 The Royal Commission resolved this issue in favour of the purchaser - copyright ownership would follow ownership of the physical painting – and in doing so, it drew support from the 1869 Bill. As the Royal Commission’s majority report explained, its proposal for the automatic vesting of copyright in the purchaser, while contradicting the unanimous evidence of artists:
…is in accordance with the provisions of the Fine Arts Bill of 1869, which we learn from Mr Blaine’s report was ‘prepared by direction of the Council of the Society of Arts, Manufactures and Commerce, in consequence of a memorial having been presented to the Council by a considerable number of the most eminent artists and publishers resident in London…’12
Bills incorporating the Royal Commission’s proposals were presented to the House of Commons in 1878-79. These Bills also included pro-collector clauses modelled on the 1869 Bill but not referred to in the Royal Commission’s report; amongst other things, these clauses prevented painters from repeating their own work without the consent of the owner of the physical painting, in cases where painters retained copyright.13 On this view, copyright’s purpose was to restrict artists: to curtail artists’ freedom to replicate their own work, so as to protect the pecuniary interests of collectors in unique physical objects.
The Royal Academy’s Memorial on Copyright, 1879
There was vehement opposition on the part of painters to the Royal Commission’s proposals on the automatic vesting of copyright in the purchaser of a painting. In 1879, the Royal Academy of Arts presented a Memorial to the Government, complaining, particularly about the Commission’s reliance on the 1869 Bill: the ‘unanimous desire of the whole body of artists’ was ‘diametrically opposed’ to such proposals.14William Holman Hunt and the President of the Royal Academy Frederick Leighton, wrote articles published in The Nineteenth Century expressing that ‘no artist of experience… dare fail to protest’ against the Commission’s recommendations;15 the proposals were the cause of a ‘unanimous feeling of deep concern and disappointment’ on behalf of ‘the whole body of artists in this country’.16
The result of the Royal Commission Report, then, was that copyright matters attracted much attention from Royal Academicians in the decades thereafter, and Bills presenting the Royal Academy’s favoured approach were presented to the House of Commons in 1881-1886 and to the House of Lords in 1899.17 In particular, the Royal Commission’s Report placed the onus on painters to justify why they should own copyright when the ownership of the physical work passed to a purchaser. In the final two decades of the nineteenth century, the Royal Academy answered this objection by accepting one of the premises of the Bills of 1869 and 1878: while the Academy proposed that the painter should retain copyright on sale of a painting, the painter’s ownership of copyright would be accompanied by a special clause that protected the interests of collectors, restricting the right of the artist to repeat works that had been sold, without the collector’s written consent. 18
However, the Royal Academy’s proposals limited collector control to a narrow class of ‘replicas’ that were ‘so nearly the same size as to render doubtful the identity of the original work’.19 The Royal Academy’s proposals, then, while providing some protection for collectors, rejected the collectors’ view of copyright as a guarantee of the uniqueness of the material art object.In making these claims, the Royal Academy put itself forward as guardians of the community interest. As the Royal Academy’s Memorial on Copyright of 1879 stated, the claim on the part of artists to first ownership of copyright was ‘to the public interest’; ‘the privileges of copyright should be in the hands of those who can best use them for the benefit of the community’ and it was the artist who was best placed to control reproduction, ‘so that, however multiplied or widely spread, all the works that have their origin in his mind may have the impress of his care’.20 In the subsequent discussion of the same proposals in The Nineteenth Century, Frederick Leighton, the President of the Royal Academy, referred to the Royal Commission’s failure to endorse the painters’ position on ownership as such as ‘to sacrifice the interests of art, which are great public interests’.21
The Artistic Copyright Bill 1869 was a short-lived and unsuccessful legislative measure. The proposals on ownership of painting copyright which it contained were ultimately never enacted; while a further pro-collector Bill was put forward in 1900,22 the 1862 Act was not repealed until 1911, by which time the context for understanding the aesthetics and economic value of art objects was very different.23 Notwithstanding this, the 1869 Bill deserves the attention of copyright historians. As this commentary has shown, the 1869 Bill is important to understanding artistic copyright history in the latter nineteenth century: it provides a context for explaining the Royal Commission’s stance on the ownership of painting copyright, which in turn spurred the Royal Academy of Arts into action in the legislative sphere. More generally, its significance lies with the fact that its clauses contain the elements of a strand of nineteenth century artistic copyright debates that are long forgotten today: the view that copyright was an instrument to be used by collectors in restricting artists, to protect the uniqueness and financial value of the physical art object (the painting on canvas).
2 See uk_1862 and Ronan Deazley’s accompanying commentary. There was some residual protection for painting under the Engraving Acts, but copyright did not subsist in the painting per se: De Berenger v. Wheble (1819) 2 Stark. 548; 171 ER 732.
101869 Bill, cl. 7. The warranty in another draft of the Bill was that the work was ‘new and original’. See the version of the Bill attached to the report of the Royal Commission on Copyright, 187: uk_1878 p.356.