Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1801

Commentary on Copyright Act 1801

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Copyright Act 1801', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Copyright Act 1801 and the Irish Book Trade

4. The Substance of the 1801 Act

5. References

1. Full title

Copyright Act, 1801, 41 Geo.III, c.107

2. Abstract

Legislation extending the effect of the Statute of Anne 1710 (uk_1710) to Ireland (following the Act of Union 1800 and the unification of Great Britain and Ireland), as well as the first statutory provision to make use of the term ‘copyright'. The commentary assesses the substance of the legislation, its relationship with the King's Bench decision of Beckford v. Hood (uk_1798a), and its impact upon the Irish book trade.

3. The Copyright Act 1801 and the Irish Book Trade

Henry Charles Carey (1793-1879) was born in December 1793 in Philadelphia to an Irish immigrant father, Mathew Carey (1760-1839), a Dublin born printer and pamphleteer, whose published criticisms of the British government had led him to abandon Ireland for America, disguised in women's clothing, to avoid prosecution in England for criminal and seditious libel. Carey arrived in Philadelphia in November 1784. Two months later, in January 1785, the Pennsylvania Evening Herald appeared for the first time, and with it began Carey's publishing career in the States.[2] When Henry was made a junior partner in his father's firm, at the age of eighteen, he had already been responsible for the company's financial affairs for the previous three years.[3] Under Henry's stewardship the company, which specialised in reprint editions of British works, grew to become one of the leading American publishing houses of the early nineteenth century.

Despite the fact that the Carey firm often paid British authors a fee for reproducing their work in the States,[4] Henry was a leading and influential opponent of proposals for an international copyright agreement between Britain and America. He set out his various arguments against international copyright in his short work, Letters on International Copyright, first published in 1853, from which the above quotation is taken. To those supportive of a system of reciprocal copyright protection, he proffered the example of the Irish publishing industry in the wake of the Act of Union 1800 and the Copyright Act 1801: when British copyright law was extended to Ireland by the 1801 Act, the Irish book trade collapsed.[5] Should Congress establish a regime of international copyright protection with Britain, Carey warned of a similar fate for American publishers and publishing.

To suggest, however, as Carey did, that as a result of the 1801 legislation "Ireland not only produced no books, but that she furnishe[d] no market for those produced by others" was to overstate the case. He was certainly right as regards the printing of British books in Ireland; the virulent reprint culture that marked the Irish book trade throughout the last two decades of the eighteenth century did come to an end.[6] Indeed, when the British Commissioners of Inquiry into the Collection of Revenue reported to the parliament in 1821 they noted that the passage of the Copyright Act "had had the effect of nearly destroying the trade of publication in Ireland".[7] And yet, whereas the production of books in Ireland went into severe decline in the early nineteenth century, the consumption of books did not. The Irish book trade did not collapse per se; rather, as Pollard points out, its "nature was radically changed". Instead of producing works, "[i]n the nineteenth century, as in the seventeenth century, the selling of imported books became the chief activity" of the Irish booksellers.[8] Cole, for example, estimates that while "[t]he average annual value for books bound and unbound imported into Ireland for the five-year period 1782-86 immediately following Irish legislative independence was only £655", in the five years between 1807-11 that average annual value had increased nine-fold.[9] Equally significant was the fact that most of these imports came from Britain.[10] In effect, then, the real impact of the 1801 Act was to secure for the British booksellers an increasingly lucrative ‘overseas' market in the guise of the Irish nation. In this respect, the legislation can be read as a forerunner to the various International Copyright Acts that would follow throughout the nineteenth century.[11]

4. The Substance of the 1801 Act

Given that the statute, on the face of it, did little more than extend the scope of British copyright law to Ireland, it is perhaps unsurprising that contemporary writers gave it little attention. Isaac Espinasse (1758-1834), for example, writing in 1824, simply observed that the 1801 Act "gave the Author no new right".[12] Indeed, judging by the comments which the legislation drew in subsequent copyright treatises, the most noteworthy feature of this new legislation seems to have been the fact that it increased the library deposit requirement in the Statute of Anne from nine to eleven copies (with the two additional copies going to Trinity College and King's Inns, Dublin).[13] There are, however, aspects of the Act, beyond the deposit requirement, that warrant particular attention.

In the first place, this was the first legislative provision within the UK to make use of the term ‘copyright', its long title providing that this was an act "for the encouragement of learning, in the United Kingdom of Great Britain and Ireland, by securing the copies and copyright of printed books, to the authors of such books, or their assigns for the time being therein mentioned".[14] Moving beyond this (arguably trite) observation, the long title of the 1801 Act proffers a second significant point of contrast with the previous legislation. When the Statute of Anne was first brought before the Commons its title set that it was an Act "for the Encouragement of Learning, and for the securing the property of copies of books to the rightful owners thereof"; during the Bill's passage through parliament the reference to "securing the property of copies of books" was subsequently dropped, the final Act providing that it would encourage learning "by vesting the copies of printed books in the author's or purchasers of such copies". With the 1801 Act the legislature no longer "vests" but rather once again "secures" an author's property.

The relative significance (or not) of this rhetorical shift is open to conjecture; however, it should be read in conjunction with a more substantive alteration to the statutory regime that was implemented by the new Copyright Act. The Statute of Anne had provided that should anyone offend against the Act they would be liable to forfeit the infringing works (to be damasked and made waste) as well as one penny for every sheet in the offender's possession ("either printed or printing, or published or exposed to sale").[15] Both forfeiture and the financial penalty were nonetheless contingent upon the copyright owner registering the work with the Stationers' Company prior to publication.[16] The 1801 legislation set out the same financial penalty (albeit raised to three pence for every offending sheet) which, as before, would not apply unless the owner had registered his "right and title" to the work before publication of the same.[17] Forfeiture, though, was no longer dependent upon the owner having registered the work. Moreover, the 1801 Act also provided that anyone infringing would be liable "to a special action on the case, at the suit of the proprietor or proprietors of the copyright ... for such damages as [a] jury on the trial of such action ... shall give or assess, together with double costs of suit",[18] and, as with the penalty of forfeiture, the action for damages did not depend upon registration.

The inclusion of the action for damages, as well as the fact that it was divorced from the formal requirement of registration, is no doubt attributable to the decision of Beckford v. Hood (1798) three years before.[19] In Beckford the King's Bench had decided that even though the plaintiff had not registered his work in accordance with the requirements of the Statute of Anne he was nevertheless able to recover damages at common law (so long as the work fell within the copyright term prescribed by the legislation).[20] In doing so the court (and in particular Grose J. (1740-1814)) had implicitly endorsed a reading of the decision in Donaldson v. Becket (1774) whereby the (misreported) commentaries of the eleven judges who provided opinions for the House of Lords in Donaldson would come to stand for the collective opinion of the House itself.[21] That is, in Beckford the court initiated a process whereby copyright came to perceived as a natural authorial right, existing at common law, albeit one that had been circumscribed by the legislature in the guise of the Statute of Anne. Now the legislature itself was contributing further weight to that particular narrative by incorporating the outcome of the Beckford decision within the substance of the 1801 Act itself. The Copyright Act may not have changed much as regards the doctrinal parameters of that which was copyright protected; however, in terms of the manner in which copyright was to be understood as property, the legislative regime had embraced a quiet but significant conceptual shift.

5. References

Government papers and legislation

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

An Act for Encouraging the Art of Making New Models and Casts of Busts, and other things therein mentioned, 1798, 38 Geo.III, c.71

Act of Union, 1800, 40 Geo.III, c.38

Copyright Act, 1801, 41 Geo.III, c.107

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

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

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

Engravings Copyright (Ireland) Act, 1836, 6 & 7 Will.IV, c.59

International Copyright Act, 1838, 1 & 2 Vict., c.59

Copyright of Designs Act, 1839, 2 Vict., c.12

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

International Copyright Act, 1844, 7 & 8 Vict., c.12

International Copyright Act, 1852, 15 & 16 Vict., c.12

Fine Arts Copyright Act, 1862, 25 & 26 Vict., c.68

Cases

Beckford v. Hood (1798) 7 D & E 620

Donaldson v. Becket (1774) 4 Burr. 2408

Books and articles

Carey, H.C. Letters on International Copyright, (Philadelphia: Hart, Carey and Hart, 1853)

Cole, R.C., Irish Booksellers and English Writers, 1740-1800 (Kent: Mansell Publishing Ltd., Humanities Press International, Inc., 1986)

Curtis, W.T., A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and other Manuscripts, Engravings and Sculpture, as enacted ... in England and America; with some notices of the history of literary property (Boston and London: n.p., 1847)

Espinasse, I., A treatise on the Law of Actions on Statutes, remedial as well as penal, in general; and on the Statutes respecting Copyright (London: n.p.,1824)

Lowndes, J.J., An Historical Sketch of the Law of Copyright (London: Saunders and Benning, 1842)

Maugham, R., A Treatise on the Laws of Literary Property (London: 1828); R. Godson, A practical treatise on the Law of Patents for Inventions and of Copyright (London: Saunders and Benning, 1840)

Ó Ciosáin, N., Print and Popular Culture in Ireland, 1750-1850 (London: Macmillan, 1997)

Pollard, M., Dublin's Trade in Books 1550-1800, (Oxford: Clarendon Press, 1989), 223-24.

Tebbel, J.W., A History of Book Publishing in the United States, 4 vols (New York & London: R.R. Bowker, 1972-1981)

Zachs, W., The first John Murray and the late eighteenth century London book trade (Oxford: Oxford University Press, 1998)

[1] H.C. Carey, Letters on International Copyright, (Philadelphia: Hart, Carey and Hart, 1853), 32.

[2] J.W. Tebbel, A History of Book Publishing in the United States, 4 vols (New York & London: R.R. Bowker, 1972-1981), 1: 108-109.

[3] Ibid., 366-71.

[4] R.C. Cole, Irish Booksellers and English Writers, 1740-1800 (Kent, Mansell Publishing Ltd., Humanities Press International, Inc., 1986), 170.

[5] In general see Cole, 148-72, and N. Ó Ciosáin, Print and Popular Culture in Ireland, 1750-1850 (London: Macmillan, 1997), 56-57.

[6] Cole notes that "the export trade which by the end of the century was an absolute necessity for the Irish book reprinting industry dropped to almost nothing after the Union"; Cole, 154.

[7] Quoted in Cole, ibid.

[8] M. Pollard, Dublin's Trade in Books 1550-1800, (Oxford: Clarendon Press, 1989), 223-24. See also: W. Zachs, The first John Murray and the late eighteenth century London book trade (Oxford: Oxford University Press, 1998), 121.

[9] Cole, 154.

[10] Pollard writes that, by 1815, the value of British imports into Ireland reached £27,000; Pollard, 155.

[11] See: uk_1838; uk_1844; uk_1852; uk_1886.

[12] I. Espinasse, A treatise on the Law of Actions on Statutes, remedial as well as penal, in general; and on the Statutes respecting Copyright (London: n.p., 1824), 89. The American jurist, William Ticknor Curtis, in his chapter on the ‘History of Literary Property', doesn't make mention of the 1801 Act at all; see W.T. Curtis, A Treatise on the Law of Copyright in Books, Dramatic and Musical Compositions, Letters and other Manuscripts, Engravings and Sculpture, as enacted ... in England and America; with some notices of the history of literary property (Boston and London: n.p., 1847).

[13] See for example the comments on the 1801 Act in: R. Maugham, A Treatise on the Laws of Literary Property (London: 1828); R. Godson, A practical treatise on the Law of Patents for Inventions and of Copyright (London: Saunders and Benning, 1840), 313; J.J. Lowndes, An Historical Sketch of the Law of Copyright (London: Saunders and Benning, 1842), 63-64. For more on the library deposit provision, see: uk_1814.

[14] The term ‘copyright' was subsequently used in the Copyright Act, 1814 (see: uk_1814), but not in the Sculpture Act of the same year (see: uk_1798), the Dramatic Literary Property Act, 1833 (see: uk_1833), or the Lectures Publication Act, 1835 (see: uk_1835). After this point in time, however, it was consistently used by the legislature in: the Engravings Copyright (Ireland) Act, 1836; the Copyright of Designs Act, 1839; the International Copyright Act, 1838 (see: uk_1838); the Copyright Amendment Act, 1842 (see: uk_1842); the International Copyright Act, 1844 (see: uk_1844); the International Copyright Act, 1852 (see: uk_1852); and the Fine Arts Copyright Act, 1862 (see: uk_1862).

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

[16] Ibid., s.2.

[17] 1801 Act, s.1.

[18] Ibid.

[19] Beckford v. Hood (1798) 7 D&E 620.

[20] See: uk_1798a.

[21] See: uk_1774.