Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1737

Commentary on the Booksellers' Bill (1737)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on the Booksellers' Bill (1737)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Booksellers petition Parliament

4. The 1735 Bill and the Statute of Anne

5. Innovations in the 1735 Bill

6. Debate in the Book Trade

7. Alexander Pope and the failure of the 1735 Bill

8. The Booksellers' Bill 1737

9. An Opportunity Lost

10. References

1. Full title
Bill for the better Encouragement of Learning, and for the more effectual securing the Copies of Printed Books to the Authors or Purchasers of such Copies, during the Times therein mentioned (1737)

2. Abstract
This Bill marks the first occasion on which the British legislature proposed to confer upon authors a lifetime interest in their literary works (with an additional eleven year post-mortem term vesting in their estates), as well as limited rights of translation and abridgement. In addition the draft legislation proposed to render null and void any contract purporting to assign an author's rights to another for a period of longer than ten years.

The commentary describes the background to the Bill, and in particular the attempts of the London book trade to secure more extensive legislative protection in both 1735 and 1737. It argues that the 1737 Bill is significant precisely because it was never made into law, and because it did not suit the best interests of the metropolitan booksellers. Instead, the book trade increasingly turned to the courts to further secure their commercial interests, giving rise to what is commonly referred to as the ‘battle of the booksellers' throughout the next 40 years.

3. The Booksellers petition Parliament
In 1735, two petitions were received in the House Commons, the first on 7 February, the second on 3 March. The former, The Case of Designers, Engravers, Etchers &c. stated In a Letter to a Member of Parliament,[1] was submitted by a group of seven artists, led by William Hogarth (1697-1764), and would lead to the passing of the Engravers Act 1735.[2] The latter was submitted by a number of booksellers praying for an Act to render more effectual the Statute of Anne 1710.[3] In their petition the booksellers complained about the fact that the protections provided by the Statute of Anne for works which had proved of long-standing value to the trade had expired nearly four years before,[4] in addition to which they expressed concern about the activities of the pirates not just at home, but also those "in foreign parts" who were reproducing the booksellers' works having paid "no consideration for the CopyRight in such Books". Moreover, paper could be purchased abroad "for half the expence that it can be furnished and provided in England", with the result that "the persons concerned in such foreign and surreptitious impressions" were making "an exhorbitant profit to themselves". This, they continued, tended "to the diminution of His Majesty's Revenue, the discouragement of the art of Printing and the Trade and Manufacture of this Kingdom".[5] The nature of the petitioners' arguments represented a shift from that which they had previously relied upon when lobbying parliament. In the mid-seventeenth century when the book trade lobbied for statutory protection in return they offered to serve the state in the suppression of "things harmfull". "[I]n matters of the Presses", they argued, "no man can so effectually prosecute, as Stationers themselves".[6] In the early part of the eighteenth century, having abandoned this rhetorical strategy, they instead presented the author as both public benefactor and so worthy of the protections provided by the 1710 Act. Now, a different bargain was being proffered to the government of the day concerning trade and national industry. In return for renewed legislative protection, they promised a more buoyant marketplace, increased manufacture, and additional revenues for the public purse.[7] Their petition resulted in the Bill for the better Encouragement of Learning, and for the more effectual securing the Copies of Printed Books to the Authors or Purchasers of such Copies, during the Times therein mentioned.[8]

4. The 1735 Bill and the Statute of Anne 1710
This Bill, the first to refer to the "Copy-Right" in a book, proved to be something of a revised, updated and expanded version of the Statute of Anne. A number of booksellers' pamphlets had suggested that the 1710 Act was inadequate in many respects: the fourteen year protection needed to be increased; the three month time limit for prosecution was too short; the process for acting against infringers proved too hazardous and costly; the penalties provided were inadequate.[9] The new Bill would address all these defects. It began with a preamble that emphasised the "great Injury and Distress" suffered by the nation's authors, the securing of their property, the diminution of "his Majesty's Revenue" and the "Discouragement of the Trade and Manufacture of the Kingdom". This was lifted almost word for word from the booksellers' initial petition of 3 March. The protection granted to the authors and proprietors of books was revised. Any author who had not already transferred "to any other the whole Interest and Property in the Copy" of any printed work, was to have the right to print and reprint the same for a further period of seven years. The author of any work not yet printed, or even composed, would receive a twenty-one year protection for his work upon first publication.[10] Not only was it unlawful to print and publish protected books, but it would now be an offence to publish such works "in parcels at different times and by different publications". Where work was reprinted without authorisation the aggrieved party was to have twelve months to bring it to court. The recoverable penalties were also altered, removing the requirement that half of the money recovered be paid over to the crown, and providing that, should a plaintiff succeed, he would also be paid his costs as well as "all the Profits arising by and from the sale" of the infringing work.[11]

Alterations to the import provisions and the library deposit requirements showed parliament striving to strike a new balance between the promotion of trade and national commerce on the one hand, and the encouragement and dissemination of, as well as access to, learned works on the other. The issue of importing works was, unlike the 1710 Act, made the subject of a separate clause. Rather than forfeit the works and pay a penny for every infringing article, those who imported works contrary to the Bill would still forfeit the work, but now pay the much heftier penalty of twenty shillings for every work so imported. In contrast to the first clause of this Bill, wherein the litigant was to receive the benefit of the penalties provided by the Bill in full, now one half of the penalty for illegal importation was to go to the crown.[12] Parliament was clearly alive to the point that had been made about the loss of potential revenue as a result of the overseas book trade. In addition, the Statute of Anne's exemption for importing books "in Greek, Latin or any other foreign Language printed beyond the Seas" [13] was altered to cover only those books "originally composed, written and printed" abroad.[14] Moreover, should "any new Edition of any Book in the said Learned or Foreign Languages" be first published in Great Britain, it too would receive the same protection as "any English Book or Books originally printed in this Kingdom".[15]

While this represented an encroachment upon the earlier settlement within the 1710 Act designed to improve the circulation of such foreign language and learned texts, a counterbalance was provided in the guise of a more robust system of library deposit. The Company of Stationers was now to take delivery of fourteen copies of each new book printed, with the additional copies to go to the libraries of the Inner and the Middle Temple, Lincoln's Inn, Gray's Inn, and also to the Advocates in Doctor's-Commons. More significantly, these works were to be delivered whether the book was registered or not, failure of which no longer incurred a financial penalty, but resulted in the forfeiture of "all privilege and benefit given and intended to be secured ... by this or any other Act of Parliament".[16] The Stamp Act 1711 had set out certain conditions under which the protections of the Statute of Anne were to be enjoyed, or conversely removed: unless the relevant duties were paid upon pamphlets and newspapers, they were not to be regarded as copyright protected.[17] Now, without deposit, there was to be no property. It was as if the legislators had finally decided to act upon the suggestions of John Locke (1632-1704) from forty years before.[18]

5. Innovations in the 1735 Bill
The evident willingness on the part of the legislature to circumscribe what protections were provided for authors and booksellers was also evident in two of the three clauses within the Bill that bore no direct relationship with the 1710 Act.[19] The first of these took the unusual departure in letting anyone publish any work that had been allowed, by its proprietor, to become "scarce and out of print".[20] With the existence of the right to print the work free from invasion, there came a concomitant duty to ensure that the work would always be publicly available. Should the owner of the work refuse to do so, a system of compulsory licensing was to operate to ensure that no work need ever fall out of print.[21] The second provision no doubt proved equally irksome to the booksellers. Focussing now upon the interests of the purchasers of books, it sought to address the frequent practice among authors and publishers "that as soon as an impression has been sold to publish another edition thereof with some alterations, additions or notes". Should anyone do so within twenty-one years of the publication of the first work,[22] he was also required to provide a subsequent edition of these revisions for anyone who purchased the first edition at a proportionate cost. Like the deposit provisions, failure to adhere to these statutory requirements was to result in the author or publisher losing "all benefit and advantage" of the Act in relation to that subsequent edition, as well as having to pay the substantial penalty of "£50 to any person who shall sue for the same".[23] As was the case with the Statute of Anne, what protection the booksellers were to receive would come at a certain cost. With guaranteed rights, came social and commercial obligations. The tensions in marrying the competing interests of the public good and the private individual had resulted in the negotiated instrument that was the Statute of Anne; with the 1735 Bill that dynamic became even more exaggerated.

6. Debate in the Book Trade
These tensions between the interests of the public and those of the book trade were similarly apparent in the lobbying that accompanied the progress of the Bill. Unlike the campaign of 1710 in which the industry had lobbied parliament with a united voice, murmurings of dissent were now clearly apparent. With A Letter to a Member of Parliament there emerged a pamphleteer prepared to contest the need for and value of the proposed legislation; what objections the letter writer had turned upon considerations of the public interest.[24] In relation to the suggestion that a new term of protection be extended to those works published prior to the Statute of Anne,[25] the booksellers argued that the 1710 Act had been so ineffective that they had older works remaining unsold "to the value of Many thousands of Pounds". The legitimate trade had incurred substantial costs in printing these works and would require a further number of years to properly realise the returns upon their investment. In any case, they continued, such a step would do no more than replicate legal practice in Holland where licences were continually renewed as of course; this, it was suggested, had been found "by experience to be of great service for the Encouragement of Learning and the Improvement of the Manufacture of Printing".[26] The author of A Letter responded with the warning that there was no good reason for granting a further term now, that could not similarly be invoked for granting it "again and again, as often as the Old ones Expire" resulting in "a perpetual Monopoly, a Thing deservedly odious in the Eye of the Law". He continued that rather than "having any real Tendency to the promoting of Learning", the Bill would instead "manifestly hinder its spreading in the World", "notoriously invade the natural Rights of Mankind, and subject the Publick to an exorbitant Tax". Drawing a parallel with the protection granted by the state to new inventions, the writer cast the relationship between the author and the public as one of a state sanctioned bargain, the legislature recognising the need to protect an author's work while at the same time judging it reasonable "that some Limitation should be set to that Term" so that the "Publick might have the common benefit of a Work, after they have for several years contributed to the Author's profit".[27]

The discourse generated between these two camps, those lobbying for and against the new legislation, also gave voice to an issue that would occupy the highest courts of the land, both in England and Scotland, the legislature, lawyers, authors, academics and the wider populace, throughout the next forty years: did there exist a common law property right of printing an author's work which pre-dated the Statute of Anne? The booksellers had become more strident in the claims they made as to the existence of a literary property at common law. Authors, they asserted, "have ever had a Property in their Works founded upon the same fundamental maxims by which Property was originally settled, and hath been since maintained".[28] This was the case prior to the invention of printing (which invention simply rendered the property of authors "more easy to be invaded"),[29] through the incorporation of the Company of Stationers, the parliamentary Ordinances of the mid-seventeenth century,[30] the Licensing Act 1662 and the Statute of Anne, all of which was only ever intended as an "Affirmance of the Common Law".[31] Their arguments set out to create a story of property in books that bore a weighty measure of historical continuity. As against this, the dissenting voice simply declared:

"Before the Act of the 8th of Queen Anne, there was no Law which vested in any one the sole Copy-Right of any Books which were published to the World; but when once a Treatise was made publick, every one was at liberty to make free with it. This to be sure, was a great Discouragement to Authors, who were by this means in great measure deprived of the Profit of their Works; and this was the Grievance which gave Occasion to the making of that Act." [32]

The final answer to the question of the existence of a common law right would have to wait.[33] However, of significance is the fact that the terms and the language of the debate were at least attracting greater clarity than had been evident in 1710. A more subtle understanding as to the very nature of the property under discussion began to emerge. There was now less mention of the book and the copy, and more reference to an author's "Copy-Right", "the sole Copy-Right of any Books", and "such property or Copy-Right" as belonged to an author or bookseller. The precise meaning of such terms was perhaps not yet absolutely clear, yet it began to be realised, albeit imperfectly, that of concern was not the physical book but the author's work that lay therein, his writing, the text. "[T]he Privilege now desired by Authors", wrote one commentator, was "not to lay Restraint, with Regard to a Science in general, but only as to an individual Book, the Property not of a Community, but of a single Man". He continued:

"The Field of Knowledge is large enough for all the world to find ground in it to plant and improve. Let every Body do it; let them be encouraged and protected in so doing; let them write and print on the same Subject: But let them not lazily borrow that individual Work, which is the Produce of another's Labours, to make a Gain to themselves, to a deserving Author's Detriment or Ruin. There must be a fixed Property in this..."[34]

7. Alexander Pope and the failure of the 1735 Bill
Whatever these parliamentarians understood copyright to mean, the Bill, in any case, foundered in the House of Lords who delayed its second reading until parliament was prorogued. As to why this was the case, there is sufficient evidence to suggest that Alexander Pope (1688-1744) was indirectly responsible.[35] While the Bill was being debated in parliament, Pope contrived to induce Edmund Curl (d.1747) into publishing a volume of his correspondence. His aim was to depict the behaviour of pirate booksellers such as Curl as overly invasive and morally repugnant, while at the same time developing public sympathy for the notion that an author should be free to control the dissemination of his own private correspondence. Ultimately what Pope wanted was to establish the right conditions for publishing an authorised edition of his letters himself.[36] On the same day that the booksellers' petition first came before the Commons, Pope wrote to Edward Harley, the Earl of Oxford (1689-1741), to ask him to send on a book of his letters that he had earlier entrusted to the Earl. He ensured that Curl published the correspondence, and arranged that he advertise the same. As McLaverty notes: "Pope wanted Curll to publish the edition of letters and to be caught doing it".[37] When Curl advertised his edition in the Daily Post-Boy he did so in the following terms:

"This Day are published, and most beautifully printed, Price five Shillings, Mr.Pope's Literary Correspondence for thirty Years; from 1704 to 1734. Being a Collection of Letters, regularly digested, written by him to the Right Honourable the late Earl of Halifax, Earl of Burlington, Secretary Craggs, Sir William Trumbull, Honourable J. C. General ****, Honourable Robert Digby, Esq; Honourable Edward Blount, Esq; Mr.Addison, Mr.Congreve, Mr.Wycherly, Mr.Walsh, Mr.Steele, Mr.Gay, Mr.Jarvas, Dr.Arbuthnot, Dean Berkeley, Dean Parnelle, &c. Also Letters from Mr.Pope to Mrs.Arabella Fermor, and many other Ladies. With the respective Answers of each Correspondent. Printed for E.Curl in Rose-street, Covent-Garden, and sold by all Booksellers."[38]

Curl's advert made it sound like he was publishing correspondence of members of the Lords, which was in breach of parliamentary privilege. It appeared on 12 May, the same day as the second reading of the Bill was scheduled in the upper chamber.[39] Notice was taken of the advert in the Lords, whereupon it was ordered that the book be seized and that Curl should attend the house the next day.[40] Immediately after this, the second reading of the Bill was postponed. Curl duly appeared to give evidence and, after examination of the book, it was found that the he had not printed "any Letter of any Lord".[41] Despite this exoneration, the incident, regardless of Pope's original intention, resulted in the Lords developing a disingenuous attitude toward the passing of the Bill. As Pope observed:

"Some of their Lordships having seen an advertisement of so strange a Nature, thought it very unfitting such a Bill should pass, without a Clause to prevent such an enormous License for the future ... BY THIS INCIDENT THE BOOKSELLERS BILL WAS THROWN OUT."[42]

In concluding his Narrative Pope also wrote as follows:

"[W]e have nothing to add but our hearty Wishes ... that the next Sessions, when the Booksellers Bill shall again be brought in, the Legislature will be pleas'd not to extend the Privileges, without at the same time restraining the Licence, of Booksellers. Since in a Case so notorious as the printing a Gentleman's PRIVATE LETTERS, most Eminent, both Printers and Booksellers, conspired to assist the Pyracy both in printing and vending the same."[43]

Two years later, when, on 11 February 1737, leave was given in the House of Commons to prepare and bring in a Bill for the Better Encouragement of Learning, the legislature omitted to address Pope's request. In any event, this second Bill, as with the previous one, would fail in the Lords,[44] and Pope would eventually turn to the courts for relief.[45]

8. The Booksellers' Bill 1737
In terms of content, the 1737 Bill built upon much that had gone before, and much remained largely unchanged.[46] There was, however, enough in the Bill to distinguish it from its antecedents. In the first place, whereas the Statute of Anne had provided protection for "the copy or copies of any book or books",[47] the Bill defined its protected subject matter more broadly to include any "Book, Pamphlet, or Writing".[48] It separated the rights granted to the author, and the penalties for infringement, into two distinct sections. As regards the rights provided, the distinction between old and newly published works was collapsed; all works, whether "already printed, or hereafter to be printed", were to receive the same protection. The author was granted the right of printing and reprinting his work "during his natural Life" after which his "Executors, Administrators or Assigns" could print the same for a further eleven years. Moreover, if an author died leaving any book, pamphlet or writing unpublished, his executors were granted a twenty-one year term of protection over the same from the date of first publication.[49] As to the nature of these rights, this Bill, like its predecessors, also made clear that they were statutory in nature and subject to revocation. The clause from the 1735 Bill relating to subsequent editions with "alterations, additions or notes" was retained, but now only applying to works priced five shillings or more.[50] In addition, the 1737 Bill expanded the extent of the obligations of the booksellers by providing that these subsequent editions were also subject to the library deposit requirement, again upon penalty of losing the benefit of the Act.[51] As if to emphasise the statutory nature of such property, the registration provisions were also revised.[52] The Statute of Anne and the 1735 Bill had set out that no one would be subject to the forfeitures therein contained unless the work had been registered. Instead, this Bill set out that where an author "shall be minded to claim the Benefit of this Act, every such Author ... shall, before every such Publication" register the work with the Stationers' Company, by which registration they would not just ensure the benefit of the legislation, but "shall in and by such entry claim the Property of the said Book".[53]

The drafters of the 1737 Bill also introduced a number of new clauses, the first of which addressed the differential in the duty that was payable on imported paper as against imported books. Considerably less duty was payable upon printed material than for paper imported for use in the printing trade; a factor that had been brought to the attention of parliament by the petitions and pamphlets of the booksellers in 1735. The loss of this potential revenue had obviously struck a chord. The Bill rendered it illegal to import, in order to sell, any book that had been printed first in Great Britain, and reprinted elsewhere.[54] The remaining provisions sought to nurture new conceptions about the relationships that existed between reader, author and bookseller. For one thing, authors could now publish anonymously while retaining protection for their work. Where the author wished to retain his or her anonymity, any other person was allowed to make the necessary entry in the stationers' register claiming the property in the work on behalf of the author for the term of twenty-one years.[55] A second clause considered, for the first time in a legislative context, the issue of abridgements and translations of works.[56] It provided that should anyone within three years of first publication of a work "print, publish, import or sell any Abridgement of the same, or Translation thereof" without the author's consent, then they were to be subject to the same penalties as had been set out for reproducing the entire work. Interestingly, this represented not just an expansion of the nature of the author's property right, but was also drafted with a form of authorial propriety in mind. It was considered that very often these "hasty and incorrect" abridgements "not only lessen the Sale, but also frequently sink the Reputation of the original Composition".[57] Presumably three years was considered a long enough time for any work to either succeed or fail upon its own merit, establishing the repute of its author one way or the other, after which, anyone was free to re-present the text in modified form. The last of the new provisions was, without doubt, the most radical. In trying to accommodate the fact that "the true worth" and "value" of books may "not be found out until a considerable time after the publication is known", it set out that:

"[N]o author shall have the power to sell, alienate, assign or transfer, except by his last will and testament, the right thereby vested in him to the original copy of any book ... for any longer time than 10 years, to commence from the date of such sale ...; and all sales ... and all covenants for any sale ... for any longer time, or to commence from a future day, and all bargains and covenants for the renewal of the same ... shall be utterly void and of none effect."[58]

Not only did this ensure that a considerable element of financial control would remain with the author, but it also provided them with the opportunity "to alter and correct their compositions, upon maturer judgment and reflection".[59] Given that an author's work was to be protected for his lifetime plus eleven years, should the Bill pass, it would have resulted in a dramatic restructuring of the relationship between bookseller and author that would have been nothing short of revolutionary.

9. An Opportunity Lost
Pope, while not involved in the downfall of this legislative attempt, provides some personal insight as to why the Bill once again failed to secure the Lords' assent. Writing on 14 May 1737, he set out that:

"The Bill, about which some honest Men as well as I, took some pains, is thrown out, for this Sessions. I think I told you it was a Better Bill when it went into the H. of Commons, than when it came out. They had added some Clauses that were prejudicial (as I think) to the True Intention of Encouraging Learning; and I was not sorry the H. of Lords objected to them."[60]

The Commons had indeed introduced a number of changes during the Bill's passage through the House,[61] but few of them are difficult to cast as inimical to the encouragement of learning. A more likely explanation for its failure lies in the fact that this latest statutory proposal was, from the point of view of the bookseller, the most contentious piece of parliamentary drafting to date. The Statute of Anne had engineered a balance that wavered primarily between the bookseller and the reading public, while the author, although cast as central protagonist, had remained largely in the wings. The 1735 Bill, if anything, tipped the earlier balance in favour of the reader as consumer. However, the 1737 Bill, for the first time, introduced the authorial figure as a significant third party. The prospect of having to renegotiate contracts with the author every ten years must have made most of the metropolitan book trade baulk in disbelief. As such, it was less likely to be those clauses prejudicial to the "true intention of encouraging learning" than those that were prejudicial to the interests of the booksellers that heralded an end to the support for this Bill.

The 1737 Bill holds a particularly significant place in the history of the development of copyright in Britain primarily because it did not receive the Royal Assent. By comparison with the Statute of Anne this was a comprehensible, coherent and mature piece of legislative drafting. The earlier act had sought to encourage learning by "vesting the copies of printed books in the authors or purchasers of such copies". As Kaplan observes "the draftsman [of the 1710 Act] was thinking as a printer would - of a book as a physical entity; of rights in it and offences against it as related to ‘printing and reprinting' the thing itself".[62] In contrast, by the time the 1737 Bill had moved through the committee stage in the House of Commons, the title of the Bill set out the purpose of the legislation as the promotion of the encouragement of learning "by the more effectual securing the sole Right of printing Books to the Authors thereof".[63] It was no longer the physical book that concerned the legislature, but the text and the act of printing that text - this was what was meant by securing to authors "the property of their own Works". Add to this the increased significance which the Bill afforded the author within the context of the production and control of literary texts, the provision of a lifetime interest with an additional post-mortem term of protection for works whether published or unpublished, and the first legislative acknowledgement of a form of commercial exploitation other than the simple right of reproduction (in the guise of a limited right to abridge), and this begins to look like a particularly modern conception of what it means to speak of copyright in books.

And yet, this moment of statutory innovation was lost. From the booksellers' point of view, the proposed Bill was anathema. Instead, encouraged by the recent decision in Baller v. Watson (1737), in which the Lord Chancellor had provided the plaintiff with both a "perpetual injunction", as well as an account of the profits which the defendant had made in selling the plaintiff's work,[64] the leading booksellers chose to abandon their reliance upon the legislature,[65] and turn instead to the courts to try to shore up their commercial interests. As a consequence, the parameters of copyright remained defined by the poorly drafted Statute of Anne with its grounding in the physical "book". Issues that might have been resolved by the 1737 Bill, such as how best to deal with abridgements and translations of a work,[66] or whether an author's unpublished letters fell within the protection of the 1710 Act,[67] would have to come before the courts instead. Perhaps most significantly, however, the Bill, with its clear and deliberate evocation of copyright as an artificial and institutional phenomenon, a statutory right to be claimed and lost in accordance with the requirements of the legislation, might have pre-empted what would follow throughout the next thirty-five years in the guise of the various deliberations and judicial pronouncements as to the whether or not copyright subsisted at common law. As it was, the impetus and opportunity for articulating what copyright meant, in an abstract and theoretical context, moved away from the legislature and into the courts of common law culminating in the landmark decisions of Millar v. Taylor (1769), Hinton v. Donaldson (1773), and Donaldson v. Becket (1774).[68]

10. References

Governmental papers and legislation

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

Stamp Act, 1711, 10 Anne, c.19

Licensing Act, 1662, 13 & 14 Car.II, c.33

Engravers' Act, 1735, 8 Geo.II, c.13

Act for the Prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain and for limiting the Prices of Books, 1739, 12 Geo.II, c.36.

Cases

Baller v. Watson (1737) (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315.

Millar v. Taylor (1769) 4 Burr. 2303

Hinton v. Donaldson (1773) (see: uk_1773)

Donaldson v. Becket (1774) 4 Burr. 2408

Books and Articles

Bracha, O., Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm [accessed 1 May 2007]

Cowler, R., ed., The Prose Works of Alexander Pope, Vol.II: The Major Works, 1725-1744 (Oxford: Basil Blackwell, 1986)

Feather, J., Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London: Mansell, 1994)

Harris, M., "Scratching the surface: engravers, printsellers and the London book trade in the mid-18^th century". In The Book Trade and its Customers, 1450-1900. Edited by A. Hunt, G. Mandelbrote and A. Shell (Winchester: St Paul's Bibliographies, 1990)

Kaplan, B., An Unhurried View of Copyright (New York and London: Columbia University Press, 1967)

Pollard, M., Dublin's Trade in Books, 1550-1800 (Oxford: Clarendon Press, 1989)

McLaverty, J., "The first printing and publication of Pope's Letters", The Library, 6^th ser., 2 (1980): 264-80

Rose, M., Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993)

Sherburn, G.W., ed., The Correspondence of Alexander Pope, 5 vols. (Oxford: Clarendon Press, 1956)

Williams, H., ed., The Correspondence of Jonathan Swift, Vol.IV 1732-1736 (Oxford: Clarendon Press, 1965)

[1] The Case of Designers, Engravers, Etchers &c. stated In a Letter to a Member of Parliament, Lincoln's Inn Library, M.P.102, Fol.125.

[2] See: uk_1735.

[3] Journal of the House of Commons (CJ), 22: 400. What influence the engravers' petition had over the timing of the booksellers petition can only ever be speculative. However, for an exploration of some of the links that existed between the print trade and the book trade in general, see M. Harris, "Scratching the surface: engravers, printsellers and the London book trade in the mid-18^th century", in The Book Trade and its Customers, 1450-1900 ed. A. Hunt, G. Mandelbrote and A. Shell (Winchester: St Paul's Bibliographies, 1990), [chapter range pages needed] 95.

[4] The Statute of Anne, 1710, 8 Anne, c.19, s.1 provided a twenty-one year term of protection for books already in print.

[5] The Humble petition of several Proprietors of Copies of Books whose names are hereunto Subscribed on behalf as well as of the Authors and Compilers of such Books as of themselves and a great Number of others concerned in the Manufacture of Printing, 1735, British Library, 357.c.2.(80).

[6] The Humble Remonstrance of the Company of Stationers to the High Court of Parliament, April 1643, E. Arber, A Transcript of the Registers of the Company of Stationers of London, 1557-1640, 5 vols. (London: 1875-94), 1: 584.

[7] Many of these arguments relating to national industry and trade were subsequently rehearsed in a number of the tracts produced by the booksellers during this period. See for example Farther Reasons Humbly Offer'd to the Consideration of the Honourable House of Commons, for making more effectual an Act passed in the 8th Year of Q.Anne, British Library, 816.m.12.(51).

[8] There exist two copies of this Bill for the better Encouragement of Learning. The first details the Bill as it was prior to its third reading in the Commons; Bodleian Library, M.S. Carte 114, 391. The second is a hand-written copy of the engrossed Bill as it was sent up to the Lords; see The Manuscripts of the House of Lords. In practice, however, there is very little difference between the two.

[9] The Case of Authors and Proprietors of Books, British Library, 816.m.12.(54); A Letter from an Author to a Member of Parliament occasioned by a Late Letter concerning the Bill now depending in the House of Commons, Bodleian, M.S. Carte 207, 16. A number of other tracts were produced during this period: A Letter to a Member of Parliament concerning the Bill now depending in the House of Commons, Bodleian Library, M.S. Carte 207, 9; A Second Letter from an Author to a Member of Parliament containing some Further Remarks on a Late Letter concerning the Bill now depending in the House of Commons, Bodleian, M.S. Carte 207, 19; Farther Reasons Humbly Offer'd to the Consideration of the Honourable House of Commons, for making more effectual an Act passed in the 8th Year of Q.Anne, British Library, 816.m.12.(51); Reasons for renewing the privilege of the term of 21 years in old copies; Reasons for granting authors a Privilege for 21 years rather than for 14, Bodleian, M.S. Carte 207, 4; Some Reasons Humbly Offered to the Parliament of Great Britain for Making more effectual an Act made 8 Ann. cap.49, British Library, 18th century reel 3019/24.

[10] The arguments presented before the Commons by the booksellers, for altering the term of protection in this manner, were recorded at the time by Thomas Carte, who Feather describes as "a non-juring antiquary who had himself been a victim of the Irish pirates"; J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London: Mansell, 1994), 74. Always careful to couch their rhetoric in the terms most beneficial to the author, the booksellers suggested that a simple twenty-one year term was more appropriate than the "precarious reversionary grant for a second term of fourteen years" as the author could command a higher price for his copy. Moreover they recounted that: the work of the author was more deserving than "the most Ordinary discoveries in any art or manufacture" as these may be discovered with "little or no experience"; the expense, labour and time invested in a "polite education" and then in "compiling an useful book" was, by contrast, a much greater endeavour, requiring a longer term of protection to ensure some reasonable profit; many works, such as Sir Walter Raleigh's History of the World and John Milton's Poetical Works, failed to achieve the recognition (and so recompense) which they deserved, until long after the expiration of the first fourteen years; a longer time to recover the costs of publishing allowed for greater print runs and so lower prices; and finally, the English nation's "great reputation for learning abroad" had in the last forty years gone into decline due to the work of the pirate booksellers, a trend which could only be reversed by ensuring this more secure property in books. See Reasons for granting authors a Privilege for 21 years rather than for 14.

[11] Clauses 1, 10. There were a number of other minor amendments made to provisions from the 1710 Act: now when a book was registered the proprietor was required to state the exact nature of his share in the work, but was no longer required to register that "consent to print" had been granted (clause 3); the list of notaries able to enquire into the price of books was expanded to include the Speaker of the House of Commons, the Master of the Rolls, the Chancellors of the Universities, the Presidents of Sion College and of the College of Physicians, the Dean of the Arches and the Dean of the Faculty of Advocates; further, they were to be able to act upon their own initiative rather than waiting to receive a complaint to the same end (clause 5); the proviso for the Universities remained unchanged except for including the four Universities in Scotland (clause 15).

[12] Clause 2.

[13] s.7.

[14] This particular clause was included as a result of evidence given before a Committee of the Commons by the Rev. Doctor Mangey, in which he explained that he was about to publish a treatise in Greek and Latin, Philo Judeus, which he had been to great expense in compiling. Given that the Statute of Anne allowed for the importation of any works in a foreign language (s.7), Mangey expressed his concern that the work would, soon after he published it, "be reprinted in Holland, and imported and sold here, near One-third Part cheaper than what the original Impression can possibly be sold for"; CJ, 22: 411.

[15] Clause 2. Note that this clause speaks of the prohibiting various acts "during the Continuance of the Property herein granted to the original Author thereof ... under the same Penalties and Forfeitures to be had, sued for and recovered, in the same Manner ... as are herein before declared concerning the importing, vending and selling in this Kingdom, of any English Book or Books".

[16] Clause 7. Similarly clause 10 also set out that where nine copies "of all such books as have been printed since [the passing of the 1710 Act] or reprinted and published with additions" had not been delivered in accordance with the deposit requirement in the 1710 Act, then such deposits should be made, otherwise the proprietor of the work was to lose the protection of the new legislation.

[17] An Act for Laying Down several Duties upon all Sope and Paper made in Great Britain or imported into the same (the Stamp Act), 1711, 10 Anne c.19, s.112; see: uk_1710.

[18] See: uk_1690.

[19] The third clause extended the protections of the Bill "any book or books of musick or any composition in musick whatsoever whether printed or engraved" (clause 12); see: uk_1777.

[20] This may well have been included as a result of the warning in A Letter to a Member of Parliament that various books "while they are a private Property, may long continue out of Print".

[21] Clause 6.

[22] Note that this was changed from fifteen to twenty-one years after the third reading of the Bill in the Commons. It is most probable then that the first section also originally provided for a fifteen year protection which was changed at the committee stage.

[23] Clause 8.

[24] A Letter to a Member of Parliament, Bodleian Library, M.S. Carte 207, 9.

[25] In addition to the protections extended to authors, clause 1 provided that any bookseller who had previously purchased any book for publication was to have "the sole Right and Liberty of Printing and Reprinting such Book or Books for the Term of Seven Years, to commence from [24 June 1735], and no longer". This would necessarily have operated to reinstate a statutory protection for those works published prior to the Statute of Anne, despite that they had already received the 21 year protection afforded by that Act, which term had now expired.

[26] Reasons for renewing the privilege of the term of 21 years in old copies.

[27] A Letter to a Member of Parliament.

[28] The Case of Authors. See also A Letter from an Author which boldly declared that "if there be such a Thing as Property upon Earth, an Author has it in his Work".

[29] The Case of Authors.

[30] See: uk_1643.

[31] A Second Letter from an Author.

[32] A Letter to a Member of Parliament.

[33] See: uk_1774.

[34] A Letter from an Author.

[35] J. McLaverty, "The first printing and publication of Pope's Letters", The Library, 6^th ser., 2 (1980): 264-80; see: uk_1741a.

[36] Rose writes that "[f]or a gentleman to publish his own letters would have seemed inexcusably vain, but a prior unauthorized publication by Curll would open the way for Pope to publish his own edition as a way of setting the record straight"; M. Rose, Authors and Owners: The Invention of Copyright (London: Harvard University Press, 1993), 60.

[37] McLaverty, 276.

[38] Taken from A Narrative of the Method by which Mr. Pope's Private Letters were procured and published by Edmund Curl, Bookseller; reprinted in R. Cowler, ed., The Prose Works of Alexander Pope, Vol.II: The Major Works, 1725-1744 (Oxford: Basil Blackwell, 1986), 327-56.

[39] The Bill was scheduled for its second reading on 9 May, but this was postponed until 12 May. McLaverty suggests that ‘Pope's allies in the Lords helped to fix this day for the debate'; McLaverty, 279.

[40] Journal of the House of Lords (LJ), 24: 550.

[41] LJ, 24: 554, 556.

[42] A Narrative, reprinted in Cowler, 341.

[43] Ibid., 345.

[44] This Bill was brought in and passed through the lower house being amended both in committee and at the report stage. When carried to the Lords, the Bill was read twice, but the committee stage was continually postponed until parliament was prorogued. CJ, 22: 741, 756, 761, 764, 769, 800, 803, 832-3, 836, 838; LJ, 25: 73, 81, 91, 99, 106, 111, 142.

[45] See: uk_1741a.

[46] A number of the provisions in this Bill had almost identical precedents in either the 1710 Act or the 1735 Bill. For example: the proviso relating to the free importation of foreign language works originally printed overseas (clause 14); the mechanism for a public control over the price of books (clauses 18, 19); the protection of books of music (clause 23); the extension of the Act to Scotland (clause 24); the ability to plead the general issue (clause 25); the proviso saving the universities printing privileges (clause 26); and a time limit for action, now extended to three years (clause 27).

[47] s.1.

[48] Like the 1710 Act, the 1735 Bill also referred to the protection of the "book or books" of an author.

[49] s.1. Should the author die within ten years of first publication, his executors were similarly entitled to print the work for twenty-one years after his death. The penalties for infringement followed those set out in the Statute of Anne, with the exception that the plaintiff would recover five shillings for each infringing copy, or sheet, instead of a penny, along with the costs of his suit; clause 2. The ability to sue for profits received by the pirate, which had been introduced in 1735, was made the subject of a separate clause, allowing the author to follow for the same in any of the Courts of Equity, upon waiver of the other penalties detailed in the Bill; clause 3.

[50] Clause 12. The Bill as originally drafted had envisioned that the author provide sufficient extra copies where he had made "material" alterations to his previous text; this qualification was subsequently dropped as the Bill proceeded through the Commons.

[51] Clause 13.

[52] Clauses 4, 6-11.

[53] Clause 4. Moreover, the Bill specifically provided for the repeal of the Statute of Anne; clause 16.

[54] Clause 21.

[55] Clause 5; should the author reveal his identity, then he was to receive the ordinary protection granted by the Bill.

[56] Since the publication of Edward Cave's The Gentleman's Magazine in 1731, it had become standard journalistic practice to reproduce material, whether in its original or an abridged form, in the periodical press; see: uk_1741.

[57] Clause 22.

[58] Clause 15.

[59] About this clause Pollard writes: "The 1730s in London saw further efforts by the booksellers to lengthen the periods of copyright protection and to clarify the prohibition on imported reprints by statute law. No less than three bills were prepared, one containing the revolutionary clause written by Swift that copyright would revert to the author after an initial ten years"; M. Pollard, Dublin's Trade in Books, 1550-1800 (Oxford: Clarendon Press, 1989), 70-71. Whether or not Swift actually penned this clause, it is clear that, while the 1735 Bill was still in committee in the House of Commons, William Pulteney sent Swift a copy of the Bill for comment. Pulteney wrote to Swift on 29 April 1735: "I have sent you the Copy of a Bill now depending in our House, for the encouragement of learning, as the Title bears, but I think it is rather of advantage to Booksellers than Authors; whether it shall pass or not this sessions I cannot say, but if it should not, I should be glad of your thoughts upon it, against another. It seems to me to be extreamly imperfect at present. I hope you have many more Writings to oblige the world with, than those which have been so scandalously stolen from you, & when a Bill of this nature passes in England (as I hope it will next year) you may then secure the Property to any friend, or any Chartiable use you think fit"; H. Williams, ed., The Correspondence of Jonathan Swift, Vol.IV 1732-1736 (Oxford: Clarendon Press, 1965), 327. This provision was also responsible for the inclusion of the saving proviso that nothing in the Bill would "impeach, or make void, or make large, any contract" already subsisting; clause 17.

[60] G.W. Sherburn, ed., The Correspondence of Alexander Pope, 5 vols. (Oxford: Clarendon Press, 1956), 4: 68.

[61] For example they: made alterations to the title and the preamble of the Act; replaced the notion of a "proprietor" of a work with that of an author's "executors, administrators or assigns"; provided that those publishing subsequent editions lose all the benefit of the Act should they fail to comply with the requirements detailed therein; limited the property in an anonymous work to twenty-one years should the author prefer never to reveal his identity; ensured that music publishers were to benefit under the legislation; and last, included the provision addressing the abridgements and translations of an author's work.

[62] B. Kaplan, An Unhurried View of Copyright (New York and London: Columbia University Press, 1967), 9. Bracha, writing about early conceptions of stationers' copyright, suggests that it "was originally understood and practiced as an exclusive entitlement to peruse [pursue] a certain economic activity, to print a specific text. Just as early patents were not thought of in terms of general control of certain infomration constituting ‘invention', the direct ‘object' of the copyright entitlement was the action of printing rather than some postulated intangible entity. This focus of copyright on the entitlement to pusue an economic activity suited its existence within the framework of a trade guild. It was very different from the concept of copyright that crystallized durign the late eighteenth century and later"; O. Bracha, Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm [accessed 1 May 2007], 169.

[63] Emphasis added.

[64] See: uk_1737a.

[65] The booksellers did however continue to press for more modest legislation designed specifically to address the problem of cheap foreign imports of copyright protected books, which efforts resulted in the passing of the Act for the Prohibiting the Importation of Books reprinted abroad and first composed or written and printed in Great Britain and for limiting the Prices of Books, 1739, 12 Geo.II, c.36.

[66] See: uk_1741.

[67] See: uk_1741a.

[68] See: uk_1769; uk_1773; uk_1774.