Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1828

Commentary on Maugham's Treatise on the Laws of Literary Property

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Maugham's Treatise on the Laws of Literary Property (1828)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Maugham's Treatise on the Laws of Literary Property

4. References

1. Full title

R. Maugham, A Treatise on the Laws of Literary Property (London: n.p., 1828)

2. Abstract

The first British legal treatise dedicated specifically to the law of copyright written by a strong advocate of the common law rights of the author. Maugham, in addition to providing a commentary upon the law of copyright, also used his work to lobby for both an extension to the copyright term (ideally resulting in a perpetual right) and a reduction in the library deposit requirements (arguing that authors should only be required to deposit one copy of their work for the British Museum). In proselytising the need for a change to the law in both areas he drew frequent comparisons with the law of other jurisdictions (in particular France and Germany). The work became a standard point of reference for many British and American authors who followed.

3. Maugham's Treatise on the Laws of Literary Property

Although the Statute of Anne passed through parliament in early 1710, that no treatise on the law of copyright would appear for nearly another hundred years should not surprise. Legal publishing in eighteenth and early nineteenth century Britain was, by and large, confined to the publication of collections and abridgements of decided cases.[1] The dominance of this particular form of legal literature was subsequently supplanted by the rise of the legal treatise throughout the latter part of the nineteenth century. This was particularly so during the time of the emergence of the law school proper, when a new academic interest in the law encouraged an interest in legal texts designed to expound and explore the principles underpinning different areas of the law.[2] Snell's Principles of Equity was first published in 1868; Buckley on the Companies Act in 1873. Following these, came Underhill's Law Relating to Trusts and Trustees (1878), Dicey's Law of the Constitution (1885) and Clerk on Torts (1889). In 1876 Pollock published his Principles of Contract, after which followed Anson's Law of Contract (1879). Two years before Anson, Stephens published his masterly Digest of the Criminal Law (1877). In line with this general trend, the latter part of the nineteenth century bore witness to a proliferation of texts concerning copyright; the law in this area, however, would find its arch-exponent in the guise of Walter Arthur Copinger (1847-1910), barrister, bibliographer and antiquary.[3]

In relation to the first half of the nineteenth century considerably fewer copyright treatises were published. The first text exclusively devoted to the law of copyright was Joshua Montefiore's The Law of Copyright, only 59 pages in length.[4] This was followed in 1824 by Isaac Espinasse's (1758-1834) Treatise on the Law of Actions on Statutes ... and on the Statutes Respecting Copyright,[5] and then, four years later, by Robert Maugham's (1788-1862) A Treatise on the Laws of Literary Property.[6] Maugham's text provided a comprehensive summary of, and commentary upon, the current state of the law, not just in relation to works of literature, but also with respect to dramatic works, lectures, and artistic works (engravings, sculpture), and prerogative grants and the concept of Crown Copyright. This work can rightly be regarded as the first significant and substantial treatment of the subject within Britain. It was certainly the first treatise that was routinely relied upon as a point of reference in subsequent copyright texts, both in Britain and in the US, throughout the remainder of the nineteenth century.[7] As to the specific tenor and focus of Maugham's text, it was essentially dominated by two particular issues: the duration of copyright; and the library deposit provisions.[8] A sense of Maugham's attitude to both is perhaps best captured by a brief selection of observations from his ‘Introductory Dissertation' on the ‘Laws of Literary Property':

"The contrast is singular between the favor which was ... shown to literature in times comparatively savage, and the discouragement it encountered during the refinement of the last century. In the ages of semi-barbarism we perceive every inducement presented to the ingenious student for the improvement of his faculties, and the cultivation of letters. In the era of boasted enlightenment, we witness the curtailment of rights, and the imposition of burthens!

...

[W]e may venture to arraign the present code, under which we think that literary property is oppressed with severer restrictions and greater burthens than any other production of human industry.

 

Not only is its duration limited to the short period of twenty-eight years, but it is taxed for the benefit of wealthy corporations, to an amount always burthensome, and frequently destructive of all the remuneration it would otherwise afford. Indeed, the impolicy, as well as the injustice, of the existing laws, must be admitted by every one who is in the least degree acquainted with the subject, and possessed of the smallest share of impartiality.

...

It cannot be denied that private interest should yield to the public good; but in this instance, the community, so far from being benefited by the united evils of unequal restraint and anomalous taxation, evidently sustains an injury."

4. References

Books and articles

Curtis, G.T., A Treatise on the Law of Copyright (London, UK and Boston, US: Maxwell & Son and Little and Brown, 1847)

Drone, E.S., A Treatise on the Law of Property in Intellectual Productions, Boston: Little Brown and Company, 1879)

Duxbury, N., Judges and Jurists: An Essay on Influence (Oxford: Hart Publishing, 2001)

Espinasse, I., A Treatise on the Law of Actions on Statutes ... and on the Statutes Respecting Copyright (London: n.p., 1824)

Fifoot, C.H.S., Judge and Jurist in the Reign of Victoria (London: Stevens & Sons, 1859)

Maugham, R., A Treatise on the Laws of Literary Property (London: n.p., 1828)

Montefiore, J., The Law of Copyright (London: n.p., 1802)

Morgan, J.A., The Law of Literature, vols. 1 & 2 (New York: Cockcroft & Co., 1875)

Simpson, A.W.B., "The Legal Treatise and Legal Theory". In Law, Litigants and the Legal Profession. Edited by Ives, E.W. and Manchester, A.H. (London: Royal Historical Society, 1983)

[1] On the history and development of different forms of legal literature see A.W.B. Simpson, "The Legal Treatise and Legal Theory", in E.W. Ives and A.H. Manchester, eds., Law, Litigants and the Legal Profession (London: Royal Historical Society, 1983), 11-29.

[2] In general see: C.H.S. Fifoot, Judge and Jurist in the Reign of Victoria (London: Stevens & Sons, 1859), 24-30; N. Duxbury, Judges and Jurists: An Essay on Influence (Oxford: Hart Publishing, 2001); Simpson, "The Legal Treatise and Legal Theory".

[3] See: uk_1870.

[4] J. Montefiore, The Law of Copyright (London: 1802), 2.

[5] I. Espinasse, A Treatise on the Law of Actions on Statutes ... and on the Statutes Respecting Copyright (London: 1824).

[6] R. Maugham, A Treatise on the Laws of Literary Property (London: 1828).

[7] See for example: [UK texts]; G.T. Curtis, A Treatise on the Law of Copyright (London, UK and Boston, US: Maxwell & Son and Little and Brown, 1847), 118, 125, 128, 159, 203; J.A. Morgan, The Law of Literature, vols. 1 & 2 (New York: Cockcroft & Co., 1875), v.2, 7-8, 53, 56, 58; E.S. Drone, A Treatise on the Law of Property in Intellectual Productions, Boston: Little Brown and Company, 1879), 56.

[8] See: uk_1814.