Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1844

Commentary on International Copyright Act 1844

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on International Copyright Act 1844', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Copyright and Customs

4. William Gladstone and the Customs Act 1842

5. The International Copyright Act 1844

6. References

1. Full title

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

2. Abstract

Legislation replacing the International Copyright Act 1838 (uk_1838) and providing that the British monarch could, by Order in Council, grant to foreign authors both copyright protection for works of literature, drama, music and art, as well as performance rights for dramatic pieces and musical compositions. The document contains the following associated material: Bill to amend Law relating to International Copyright 1844 (uk_1844a).

This Act addressed perceived inadequacies of the International Copyright Act 1838 (uk_1838) by expanding upon both the subject-matter and the nature of the rights that might be included in a reciprocal copyright arrangement with a foreign state. It also specifically linked the protections that foreign authors would enjoy within Britain to existing domestic copyright legislation. Following this legislation Britain successfully negotiated a series of bilateral international copyright treaties the first of which was concluded with Prussia in May 1846.

The commentary locates the Act within existing legislative provisions designed to address the problem of the market for cheap foreign imports of British books. It suggests that, regardless of the existence of stringent measures targeting unlawful foreign imports, the British government regarded a system of international copyright protection as integral in both addressing the import issue and in fostering a more secure overseas market in the interests of the British book trade.

3. Copyright and Customs

On 30 June 1842, the day before the Copyright Amendment Act 1842 received the Royal Assent,[1] a public meeting was held by a group of authors and publishers in the Freemasons' Tavern in London, to discuss the question of international copyright. Noting that the most effective means by which to address the question of the importation of cheap foreign reprints of British works would be "the conclusion of treaties with Foreign Powers for the mutual recognition of Literary Property", the meeting expressed its "deep regret" at "the long delay which has taken place in carrying out the intentions of the Legislature" in the guise of the International Copyright Act 1838.[2] All the government's attempts to negotiate bilateral copyright agreements under the 1838 Act had come to nothing.[3] At this point in time, then, the legality of importing foreign reprints was still solely regulated by the domestic copyright and customs legislation.

Whereas the Statute of Anne 1710 prohibited the printing, reprinting or importing of protected works, in 1739 the London booksellers secured a specific Importation Act,[4] which supplemented the earlier statute, by specifically prohibiting the importation for sale of reprints of any book first composed or written and printed in Britain, whether in English or a foreign language,[5] as well as imposing a much heftier financial penalty for infringement than was available under the 1710 legislation.[6] Although the 1739 Act was originally limited in duration to seven years, it was repeatedly renewed, until its lapse in September 1795.[7] The lapse of the 1739 statute was not that significant, however, in that the substance of the Act had, in 1794, been reproduced in a single provision within an Act concerning the repeal of various duties on paper.[8]

When the Copyright Act 1801 was passed, following the Act of Union 1800 and the formation of the United Kingdom, it incorporated two provisions concerning imported works, which sections had their forerunners in both the Statute of Anne and the 1794 customs legislation. Section 1 made it an offence for anyone in the United Kingdom, "or in any part of the British Dominions in Europe", to "print, reprint, or import" protected works,[9] whereas s.7 restated, word for word, the prohibition from the 1794 Act on importing for sale works "first composed, written or printed" within Britain (and now Ireland also). Following the merger of the three individual Boards of Customs (England, Scotland and Ireland) into one Board in 1823, a consolidation of the voluminous customs provisions was completed in 1825 when over 400 individual pieces of legislation were repealed and replaced by 11 Acts which addressed the management and regulation of the new Customs Board, as well as "smuggling, navigation, ship's registry, duties, warehousing, bounties, colonial Customs, the Isle of Man and passenger traffic".[10] Of these consolidating statutes, one specifically replicated the substance of s.7 of the 1801 Act, in providing that importing any books "first composed or written or printed in the United Kingdom, and printed or reprinted in any other Country" for sale was "absolutely prohibited".[11]

When these various copyright and customs statutes were once again revised in 1842, there were then three separate legislative enactments which sought to regulate, in one way or another, the importation of foreign reprints of British works - two contained in the Copyright Amendment Act,[12] and one in the Customs Act.[13] The latter provision will be dealt with in the next section. As regards the Copyright Amendment Act, like the 1801 Act, it incorporated two provisions concerning imported books; however, unlike the 1801 legislation, with this new Act, there appeared to be some attempt on the part of the drafters to clarify the relationship (and the overlap) between the two. Whereas the previous copyright acts had made it unlawful to "print, reprint, or import" protected works,[14] the 1842 Act abandoned this well-worn formula, providing instead that:

"[I]f any Person shall, in any Part of the British Dominions, after the passing of this Act, print or cause to be printed, either for Sale or Exportation, any Book in which there shall be subsisting Copyright, without the Consent in Writing of the Proprietor thereof, or shall import for Sale or Hire any such Book so having been unlawfully printed from Parts beyond the Sea, ... [then] such Offender shall be liable to a special action on the Case..."[15]

To this was added the further provision, modelled on s.7 of the 1801 Act:

"[I]t shall not be lawful for any Person, not being the Proprietor of the Copyright ... to import into any Part of the United Kingdom, or into any other Part of the British Dominions, for Sale or Hire, any printed Book first composed or written or printed and published in any Part of the said United Kingdom, wherein there shall be Copyright, and re-printed in any Country or Place whatsoever out of the British Dominions..."[16]

The first section concerns the unlawful printing of books "in any Part of the British Dominions", or importing "any such Book" for sale or hire therein, whereas the second specifically addresses the importing of copyright protected books which have been printed "in any Country or Place whatsoever out of the British Dominions". Importing works unlawfully printed within the British Dominions might result in liability for damages and forfeiture of the books (which now were deemed to be the property of the copyright owner);[17] importing works reprinted outside the British Dominions could lead to a penalty of ten pounds and double the value of every book imported, as well as forfeiture of the books to Customs to be destroyed.[18]

4. William Gladstone and the Customs Act 1842

The Copyright Amendment Act, of course, was the result of five years of unsuccessful lobbying on the part of Thomas Noon Talfourd (1795-1854), who introduced various versions of the Act into the Commons between 1837 and 1841, after which Lord Mahon (Philip Henry Stanhope) (1805-1875) successfully steered the Act through parliament in 1842.[19] As Barnes notes, even before Lord Mahon had introduced his amended version of Talfourd's Bill to the Commons, "several leading publishers sought him out and urged the total exclusion of foreign reprints".[20] Mahon refused to do so, having in mind the British tourist, returning from his travels abroad, carrying with him cheap foreign reprints for his or her private library:

"Suppose for example a man of slender fortune goes abroad for the education of his children; he buys for their use a large assortment of books, Hallam's Lingard, Milman's Histories, Southey's or Wordsworth's Poems - all in foreign editions. What is he to do in returning? Is he bound to fling from him all these literary treasures - enriched perhaps with his pencil-marks or annotations - from the packet-deck?" [21]

Where the book trade failed with Lord Mahon, they had more success with William Gladstone (1809-1898). The novelist G.P.R. James (1801-1860) had written to Gladstone (then Vice-President of the Board of Trade) about this issue, and, as Barnes recounts, Gladstone "became convinced that foreign piracies enhanced the price of British books, and ... promised [James] to raise the matter with the Commissioners of Customs".[22] When Gladstone was asked by the Prime Minister, Robert Peel (1788-1850), to ensure the passage of the Customs Act 1842 through Parliament, unsurprisingly the final version of the Act included a provision setting out that "all Books wherein the Copyright shall be subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other Country, shall be and the same are hereby absolutely prohibited to be imported into the United Kingdom".[23] Whereas the 1825 customs legislation had prohibited the importation of works for sale only,[24] now there was to be a total prohibition on all imported works whether for commercial or personal use.[25] The Act also incorporated a new section designed to facilitate the enforcement of the ban on importing protected works by requiring the proprietors thereof to give notice in writing to the Customs Commissioners as to which works were copyright protected and for how long.[26] Like s.17 of the Copyright Amendment Act, the prohibition on importation in the Customs Act only extended to protect works "first composed or written or printed in the United Kingdom",[27] and not works that were otherwise copyright protected elsewhere within the British Dominions. Unlike s.17, the Customs Act only operated to prevent such works being imported into the United Kingdom, whereas the provision in the Copyright Amendment Act prevented the importation of works into any part of the British Dominions. This oversight, however, was subsequently remedied by the Customs Act 1845 which operated to prevent importing protected works "into the British Possessions abroad".[28]

5. The International Copyright Act 1844

Despite the more stringent measures concerning foreign imports contained within the Customs Act 1842, which measures appear in time to have achieved some success,[29] Gladstone and the Board of Trade continued to work towards the goal of establishing an effective system of international copyright protection by means of a series of bilateral copyright treaties. Negotiations with Prussia had been resumed and, between 1842 and 1844, the Board of Trade and the Foreign Office sought to ameliorate the concerns raised by the Prussian government during the previous negotiations under the 1838 Act.[30] Barnes summarises those Prussian concerns as follows:

"Hitherto the problems had centred around the discrepancy between the extent of coverage each nation anticipated. In Prussia, domestic protection included artistic as well as literary productions, while Great Britain was prepared to guarantee reciprocity only for books. Similarly, the maximum time protection under British law was twenty-eight years far shorter than the Prussian guarantee. Production costs and duties on imported books were much lower among the German states, another threat to the principle of reciprocity."[31]

Under the new Copyright Amendment Act of course the term of copyright protection had been increased to the life of the author plus a seven year post mortem term, or forty-two years from publication, whichever was longer. Moreover, a reduction in duties on imported books was agreed for those countries willing to sign up to a copyright treaty.[32] Any existing objections as to the scope of the subject matter provided by a reciprocal arrangement were removed when the Board of Trade prepared a second International Copyright Bill to replace the 1838 Act, which Bill Gladstone was able to steer through parliament in just three weeks.

The International Copyright Act 1844 was, by and large, modelled upon the earlier 1838 Act with, however, some notable amendments.[33] Whereas the 1838 Act promised only protection for books published in foreign jurisdictions, the 1844 Act proffered copyright protection for "Books, Prints, Articles of Sculpture, and other Works of Art" (and this despite the fact that, besides engravings and certain works of sculpture,[34] no other works of art currently received copyright protection within the UK),[35] as well as a performance right for "Dramatic Pieces and Musical Compositions".[36] Moreover, rather than delineating the specific nature of the protection which foreign works would receive under the reciprocal arrangement, the 1844 Act instead linked that protection to the existing domestic copyright legislation. So for example, the protection for foreign books was to be governed by the Copyright Amendment Act 1842,[37] the protection for works of foreign sculpture by the Sculpture Acts,[38] the performance of dramatic works by the Dramatic Literary Property Act 1833,[39] and so on. In drawing these explicit structural links between international protection and the domestic legislation, the Act ensured formal and substantive parity as regards the copyright protection enjoyed by both British and foreign works.[40] In addition, the 1844 Act also incorporated its own amended version of s.24 of the Customs Act 1842, in providing an absolute prohibition on importing any copyright-protected foreign books into any part of the British Dominions.[41]

The last major difference between this and the earlier legislation lies not in the substance of the law itself, but rather in its subsequent impact. Where the government previously failed with the 1838 Act, they succeeded in their negotiations under this new statutory regime. Peel reported to the Commons in February 1845 that, as regards international copyright, "negotiations with Prussia were now renewed, and in the event of their being brought to a satisfactory conclusion, similar negotiations might be entered into with other countries".[42] A treaty was signed with Prussia on 13 May 1846, after which followed Saxony (August 1846), Brunswick (March 1847), the Thuringian Union (July 1847), Hanover (August 1847), and Oldenburg (December 1847).[43] Britain had taken its first substantive steps towards the realisation of a regime of international copyright protection.

6. References

Government papers and legislation

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

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

Importation Act, 1739, 12 Geo.II, c.36

An Act for repealing the duties on paper, pasteboard, milleboard, scaleboard, and glazed paper; and for granting other duties in lieu thereof, 1794, 34 Geo.III., c.20

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

Customs Act, 1825, 6 Geo.IV, c.107

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

Customs Act, 1833, 3 & 4 Will.IV, c.52

Customs Act, 1842, 5 & 6 Vict., c.47

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

Customs Act, 1845, 8 & 9 Vict., c.93

An Act to reduce, under certain Circumstances, the Duties payable upon Books and Engravings, 1844, 7 & 8 Vict., c.73

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

Sculpture Copyright Act, 1814, 54 Geo.3, c.56

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

Books and articles

Barnes, J.J., Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815-1854 (London: Routledge & Kegan Paul, 1974)

Carson, E.A., The ancient and rightful customs: a history of the English customs service (London: Faber, 1972)

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

Sherman, B., and Bently, L., The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999)

[1] Copyright Amendment Act, 1842, 5 & 6 Vict., c.45; see: uk_1842.

[2] Publishers' Circular, 5 (1 July 1842): 186; quoted in J.J. Barnes, Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815-1854 (London: Routledge & Kegan Paul, 1974), 118.

[3] International Copyright Act, 1838, 1 & 2 Vict., c.59; see: uk_1838.

[4] Importation Act, 1739, 12 Geo.II, c.36.

[5] See in general: uk_1838.

[6] The 1739 Act provided that all works were to be forfeited and destroyed, and that the infringer would be liable to pay five pounds and double the value of every book so imported. This legislation also closed an apparent loophole in the poorly drafted 1710 statute, which, while it prohibited the printing, reprinting and importing of works protected in accordance with the legislation, continued that only those "knowing the same to be so printed or reprinted [but not imported] without the consent of the proprietors" were to be liable for selling the same.

[7] See: 20 Geo.II, c.47 (1747); 27 Geo.II, c.18 (1754); 33 Geo.II, c.16 (1760); 7 Geo.III, c.35 (1767); 14 Geo.III, c.86 (1774); 22 Geo.III, c.13 (1782); and 29 Geo.III, c.55 (1789). Note that from 1754 onwards, these Acts only renewed ss.1 and 2 of the 1739 Act.

[8] An Act for repealing the duties on paper, pasteboard, milleboard, scaleboard, and glazed paper; and for granting other duties in lieu thereof, 1794, 34 Geo.III., c.20, s.57. Note, however, that whereas the 1739 Act had prohibited the importation of any books "first composed or written and printed" within Britain, this provision now protected any works "first composed, written, or printed" within Britain. It also introduced another proviso in allowing for the importation of works that had not been printed within Britain within twenty years "before the same shall be imported", while at the same time increasing the financial penalty incurred to the sum of ten pounds and double the value of every book imported.

[9] This was reproduced, although with some variation, in s.4 of the Copyright Act, 1814, 54 Geo.III, c.156.

[10] E.A. Carson, The ancient and rightful customs: a history of the English customs service (London: Faber, 1972), 134-35.

[11] Customs Act, 1825, 6 Geo.IV, c.107, s.52; this prohibition was similarly subject to the two provisos set out in s.7 of the Copyright Act, 1801, 41 Geo.III, c.107, namely importing books as part of a collection "where the greatest part of such collection shall have been first composed or written and printed abroad", and books not printed within the United Kingdom within 20 years before importation of the same. Section 52 of the 1825 Act was itself subsequently reproduced in s.58 of the Customs Act, 1833, 3 & 4 Will.IV, c.52.

[12] Copyright Amendment Act, 1842, ss.15, 17.

[13] Customs Act, 1842, 5 & 6 Vict., c.47, s.24.

[14] Statute of Anne, 1710, 8 Anne, c.19, s.1; Copyright Act, 1801, s.1; Copyright Act, 1814, s.4.

[15] Copyright Amendment Act, 1842, s.15.

[16] Ibid., s.17.

[17] ss.15, 23; with the previous Acts, the offending articles were to be delivered up and destroyed.

[18] s.17.

[19] In general see: C. Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999); see also: uk_1842.

[20] Barnes, 107.

[21] Lord Mahon to John Murray, 5 March 1842, quoted in Barnes, 107.

[22] Barnes, 105; see also The Athenæum, 9 July 1842, 610.

[23] Customs Act, 1842, s.24.

[24] Customs Act, 1825, s.52; see also the Customs Act, 1833, s.58.

[25] In addition, the Act repealed the exemptions in the earlier legislation concerning the 20 year rule, and works forming part of a larger collection. For an account of the way in which this new provision impacted upon individual travellers see Barnes, 110-12. See also the comment in The Athenæum, 4 Sept. 1847, on the "Importation of Pirated Editions of British Works": "An application having been made to the Lords of the Treasury with regard to the admission by a lady, for her own use, of American and French editions of British copyright works that had long been in her possession, - and which, from old association, she still wished to possess, - their lordships have directed, in mitigation of the severity of the law, that when a party can obtain the written consent of the owners of the copyright the books may be delivered to the importer on payment of duty".

[26] Customs Act, 1842, s.25. The Commissioners were to ensure that printed lists of works for which they had been put on notice were made available at all ports throughout the UK; ibid.

[27] Adopting a slightly different wording, s.17 protects any book "first composed or written or printed and published in any Part of the said United Kingdom". That the remit of both provisions was limited in this way should not particularly surprise given that both were based upon s.7 of the 1801 Act which protected works "first composed, written or printed, and published in any Part of the said United Kingdom", which in turn was based upon s.1 of the 1739 Act which provided protection for works "first composed or written and printed and published in this kingdom".

[28] Customs Act, 1845, 8 & 9 Vict., c.93, s.9.

[29] Barnes reproduces a letter from the publisher John Murray to Gladstone in 1860 in which he expressed his satisfaction at the success of the measures which the government had adopted as regards the prohibition on foreign reprints: "The prohibition to import single copies of pirated English copyright works has been one of the greatest boons to English Authors and owners of copyrights in recent times. It has had the effect of stopping almost entirely the reprints of English works on the Continent"; Barnes, 113.

[30] On this, see the comments of Robert Peel to the House of Commons on 24 February 1845 that, when negotiations were originally undertaken with Prussia, "it was alleged on the part of Prussia that the law of copyright in this country was defective, and ought to be amended". He continued: "Since that time two Bills had passed Parliament to amend the law of copyright [the Copyright Amendment Act, 1842, and the International Copyright Act, 1844], and diminishing the objections raised by Prussia. The negotiations with Prussia were now renewed, and in the event of their being brought to a satisfactory conclusion, similar negotiations might be entered into with other countries"; Hansard, 3^rd Ser., 77 (1845): 1042.

[31] Barnes, 118-19; see also B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 115-118.

[32] An Act to reduce, under certain Circumstances, the Duties payable upon Books and Engravings, 1844, 7 & 8 Vict., c.73.

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

[34] See: uk_1735; uk_1798.

[35] International Copyright Act, 1844, s.2.

[36] Ibid., s.5.

[37] Ibid., s.3.

[38] Ibid., s.4.

[39] Ibid., s.5.

[40] Subject, that is, to any specific exceptions contained within the Order in Council granting such copyright protection.

[41] International Copyright Act, 1844, s.10; this provision omitted the obligation to notify the Customs Commissioners as to which works were copyright protected in accordance with s.25 of the Customs Act, 1842, but incorporated an exemption for importing such works with the consent of the copyright proprietors.

At the time, of course, this meant that the import provision under the 1844 Act offered foreign works a much broader geographical protection than was provided for domestic works in that the Customs Act, 1842, only prevented the importation of reprints into the UK, but not the extended British Dominions. As noted above, however, this was subsequently remedied by the Customs Act, 1845, which operated to prevent importing protected works "into the British Possessions abroad".

[42] Hansard, 3^rd Ser., 77 (1845): 1042.

[43] Following these, and prior to the signing of the Berne Convention in 1886 (see: uk_1886), Britain concluded further conventions with: France (November 1851); Anhalt (February 1853); Hamburg (August 1853); Belgium (August 1854); Prussia and other German States (June 1855); Sardinia (also applicable to Italy) (November 1860); Hesse (November 1861); Spain (August 1880); and Germany (June 1886).