Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1842a

Commentary on Lowndes' Historical Sketch of the Law of Copyright

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2007) ‘Commentary on Lowndes' Historical Sketch of the Law of Copyright (1842)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
 

1. Full title

2. Abstract

3. Lowndes' An Historical Sketch of the Law of Copyright

4. References

1. Full title

J.J. Lowndes, An Historical Sketch of the Law of Copyright 2^nd ed. (London: Saunders and Benning, 1842)

2. Abstract

This was the first British treatise dedicated specifically to the history of copyright law. The second edition, published in the same year as the passage of the Copyright Amendment Act 1842 (see: uk_1842) and the edition referred to in this commentary, was dedicated to the Sergeant Thomas Noon Talfourd, the driving force behind the 1842 Act, "for his generous advocacy of the rights of authors". Lowndes was a strong proponent of the natural rights of the author and his historical account reflects as much. The second edition is also notable in terms of drawing comparisons with various continental models of copyright protection in advocating a longer term of protection for literary works within the UK.

3. Lowndes' Historical Sketch of the Law of Copyright

Of the relatively few treatises upon the law of copyright which were published in Britain in the early part of the nineteenth century,[1] the first to focus specifically upon the history of copyright law was John J. Lowndes' An Historical Sketch of the Law of Copyright.[2] For that reason alone Lowndes' work arguably warrants inclusion within this archive of primary sources on copyright. That, however, is not the only reason. The timing and substance of Lowndes' work are significant. Two editions were published, the first in January 1840, the second in April 1842.[3] Both were dedicated to Sir Thomas Noon Talfourd (1795-1854) "[f]or his generous advocacy of the rights of authors".[4] Talfourd, of course, was the driving force behind encouraging parliament to extend the term of copyright protection for literary works, which efforts would ultimately result in the Copyright Amendment Act 1842.[5] In the preface to both editions of his work, Lowndes made clear the extent to which his publication was designed to supplement and support Talfourd's endeavours. In the preface to the first, for example, he explained that:

"The motive in laying [this book] before the public, is to attempt to remove the misapprehensions which prevail with regard to this species of property, both as to its former existence, and as to the effect and expediency of the measure proposed by Sergeant Talfourd."[6]

Like Talfourd, Lowndes was convinced that the concept of an author's natural right of literary property was one of long-standing, and that copyright existed at common law predating the interventions of the legislature in the guise of the Statute of Anne 1710.[7] The purpose in publishing his treatise was to convince the reader of the same. Again, in the preface to the first edition, he wrote:

"I feel sensibly that more time and study than have been in my power to bestow, are necessary to do justice to this subject, but if, by the perusal of the following pages, the reader is convinced that such a right as that known by the name of Copyright did formerly exist at common-law, and was only taken away by a mistaken interpretation of the effect of the statute of Anne, and that the state of the present law is such as imperatively demands alteration; I shall not consider the few leisure hours I have appropriated to their composition from the severer duties of my profession, as either misspent or unprofitably employed."[8]

Whether or not his work did have this desired effect upon his audience, Lowndes could at least boast that his readership included Lord Mahon (1805-1875), who eventually secured the passing of the 1842 Act, as well as William Gladstone (1809-1898) who was advising Talfourd in his efforts.[9] Indeed, less than a month after Lowndes had published the first edition of his work, Mahon specifically referred to it in the Commons as "a pamphlet worthy of the greatest attention".[10]

As for the work itself, Lowndes traced the history of copyright "from the time of the invention of printing", and argued that the prerogative grants of the Tudors concerning printing were "proof of the recognition of literary property",[11] just as the Elizabethan (1533-1603) injunctions of 1559 as well as the subsequent Star Chamber Decree 1566 were "in favor of Copyright".[12] The passing of the Statute of Anne did not indicate an absence of common law rights, but rather "was sought to render [the author's] right more beneficial, by the remedy being made more effective".[13] Millar v. Taylor (1769) was presented as the decision in which "the nature, custom, and law of literary property were most fully and ably discussed",[14] whereas the decision of the House of Lords in Donaldson v. Becket (1774) was "not to be considered as a sound construction",[15] and so on. None of this is to suggest that Lowndes' reading of the history of copyright is necessarily ‘wrong' or ‘inaccurate', but simply that there is little (or indeed no) room in his account for alternate interpretations of the same events. In that vein, the singularity of his version of copyright's history, operates to remind the modern reader of the extent to which all texts have a context, of the manner in which all legal treatises operate as polemic, and of the way in which history itself is often co-opted and rewritten as a means of furthering the interests and needs of each passing generation. What is important in this regard are not just the facts behind what actually might have happened in 1559, or 1710, or 1774, but who tells the story of what happened, how and when they tell it, and why.

4. References

Government papers and legislation

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

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

Cases

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4. Burr. 2408

Books and articles

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

Godson, R., A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: Butterworth and Son, 1823)

Lowndes, J.J., An Historical Sketch of the Law of Copyright (London: Saunders and Benning, 1840)

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

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

Seville, C., Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999)

[1] J. Montefiore, The Law of Copyright (London: n.p., 1802); R. Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: Butterworth and Son, 1823); I. Espinasse, A Treatise on the Law of Actions on Statutes ... and on the Statutes Respecting Copyright (London: 1824); R. Maugham, A Treatise on the Laws of Literary Property (London: 1828).

[2] J.J. Lowndes, An Historical Sketch of the Law of Copyright (London: Saunders and Benning, 1840). See however Maugham's Treatise which does include a lengthy section providing an ‘Historical View of the Law'; Maugham, 1-62.

[3] The edition included within this archive is the second edition; for a digitised copy of the first edition (and many other copyright texts) see the Antique Rare IP e-Treatise Reading Room, within the Franklin Pierce Law Center's IP Mall: www.ipmall.info/hosted_resources/ip_antique_library/copyright.asp.

[4] Lowndes, Dedication Page.

[5] See: uk_1842.

[6] Lowndes, vii.

[7] Statute of Anne, 1710, 8 Anne, c.19; see: uk_1710.

[8] Lowndes, viii.

[9] M.R.D. Foot and H.C.G. Matthew, eds, The Gladstone diaries, 14 vols (Oxford: Clarendon Press, 1974), 3: 9. On Gladstone's involvement in the 1842 Act see, C. Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 159-75.

[10] Hansard, 3^rd ser., 52 (1840) 411.

[11] Lowndes, 2, 5.

[12] Ibid., 14 (see also: uk_1559, uk_1566).

[13] Ibid., 32.

[14] Ibid., 41 (Millar v. Taylor (1769) 4 Burr. 2303. See also: uk_1769).

[15] Ibid., 100 (Donaldson v. Becket (1774) 4. Burr. 2408. See also: uk_1774).