Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1870

Commentary on Copinger's Law of Copyright

Ronan Deazley

Birmingham Law School, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Copinger's Law of Copyright (1870)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Walter Arthur Copinger and the Law of Copyright

4. Copinger and Copyright at Common Law

5. Copinger, Curtis and the History of Copyright

6. Story, Curtis and Copinger

7. Abridgements and Infringement

8. On the Nature of Copyright Protection and Infringement

9. Walter Arthur Copinger: Plagiarist and Prophet

10. References

1. Full title

W.A. Copinger, Law of Copyright in Works of Literature and Art

2. Abstract

A landmark treatise on the law of copyright, establishing a body of work that still has great relevance for professionals and academics today.

The commentary situates the publication of the treatise in the context of the emerging trends in legal publishing in the mid- to late nineteenth century. It considers Copinger's theoretical approach to the subject of copyright, and explores the significance of the writings and work of two American jurists George Ticknor Curtis and Justice Joseph Story in shaping Copinger's attitude and approach to the copyright regime.

3. Walter Arthur Copinger and the Law of Copyright

In the last quarter of the nineteenth century the teaching of law as an academic discipline began to find a mainstream place within the University curriculum, which development prompted the publication of a number of foundational texts, as a result of which the legal treatise began to assume a new significance for the profession.[1] Snell published his Principles of Equity in 1868, which treatise was followed by Buckley on the Companies Act in 1873, and Pollock's Principles of Contract in 1876. Stephens published his masterly Digest of the Criminal Law in 1877, after which came Underhill's Law Relating to Trusts and Trustees (1878), Anson's Law of Contract (1879), Dicey's Law of the Constitution (1885), and Clerk on Torts (1889). In this regard, the law of copyright was no different. Prior to 1870 only a handful of works had been published that dealt specifically with copyright. Montifiore (1802), Maugham (1828) and Lowndes (1840) had all written specifically about the law of copyright,[2] whereas Godson (1823, 1840), Leverson (1854) and Fraser (1860) considered the subject in conjunction with the law of patents.[3] Between 1860 and 1870 three copyright texts were published, all of which followed in the wake of the International Exhibition: Chappell & Shoard's Handy-Book of the Law of Copyright (1863); Underdown's Law of Art Copyright (1863); and Phillips' The Law of Copyright in Works of Literature and Art, and in the Application of Designs (1863). After 1870 however, the number of published works that were dedicated to the law of copyright significantly increased.[4] The most important of these was, without doubt, Walter Arthur Copinger's (1847-1910) Law of Copyright in Works of Literature and Art, the first edition of which was published in 1870.[5]

Copinger published his Law of Copyright just one year after he was called to the Bar and in the same year that he settled in Manchester, where he established a practice specializing in conveyancing (a subject about which he also wrote).[6] An avid book collector and bibliophile, he was instrumental in establishing the Bibliographical Society (founded in London in 1892), in which organization he also served as President for its first four years.[7] The Law of Copyright quickly became and has remained one of the key points of reference as to the law of copyright within the United Kingdom (and is certainly the text exhibiting the greatest weight of authority by dint of longevity). It was on the one hand a work that many other authors at the time would expressly acknowledge as providing a central point of departure in their own explorations of the law,[8] as well as the text to which counsel and judges alike would most readily refer in cases of alleged copyright infringement.[9] Three further editions of the work were published in Copinger's lifetime, the second and third of which Copinger revised himself (1881, 1893); by 1904, however, J.M. Easton had taken over the reins, writing in the Preface to the fourth edition that "[p]ressure of other work unfortunately prevented the author from writing this edition of his well-known work on copyright".[10] Copinger, by this stage of his life, had stopped writing on legal matters, and was devoting his time almost exclusively to matters of family genealogy, heraldry, and local history. In 1904, for example, he published a five volume history of the County of Suffolk,[11] which was followed the next year by a seven volume treatise on The Manors of Suffolk.[12]

4. Copinger and Copyright at Common Law

In terms of his general understanding of the subject of copyright, Copinger falls within the same camp as the various natural rights theorists of the eighteenth century, such as Mansfield (1705-1793) and Blackstone (1723-1780), who co-opted the work of John Locke (1632-1704) and others in positing the concept of copyright at common law as the natural and inalienable right of the author. On the first page of The Law of Copyright he explains that "[t]he right of an author to the productions of his mental exertions may be classed among the species of property acquired by occupancy; being founded on labour and invention",[13] at which point he references both Locke On Government and the American jurist David Hoffman's (1784-1854) Legal Outlines.[14] He writes that "every man has the right at common law to the first publication of his own manuscript", and continues that upon publication of the same, "no more passes to the public than the unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. The property in the composition does not pass".[15] Moreover, like Lowndes before him, Copinger considered that the historical provenance of the common law right could be readily traced through the incorporation of the Stationers' Company, the various Star Chamber decrees of the sixteenth and early seventeenth century, the ordinances of the Long Parliament, and the Licensing Act 1662.[16]

Copinger, however, did not slavishly follow the work and thoughts of these earlier judges and jurists. In relation to the copyright term, for example, Copinger did not consider that the right of an author should be perpetual in duration. On this particular aspect of the copyright regime he wrote as follows:

"The claim of authors resulting from the principles of natural right involves the perpetual duration of the property. But in order that such property should be of value, it is necessary that society should interfere actively for its protection. It may either interfere by the enactment of penalties, which, in order to be effectual, must be severe; or it may interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favour of an exclusive right, further than it finds such a course beneficial to its own interests, in the broadest sense of the term. ... A perpetuity in copyright would have the effect of impeding the progress of literature and science, and among other serious inconveniences we will mention one. The text of an author, after two or three generations, if the property be retained so long by his descendants, would belong to so many claimants, that endless disputes would arise as to the right to publish, which in all probability might prevent the publication altogether."[17]

Not only does the passage reveal a difference in approach between Copinger and those such as Mansfield who preceded him, but it also betrays a transatlantic influence upon his writing that has hitherto been little remarked upon. Consider the following extract from George Ticknor Curtis' (1812-1894) Treatise on the Law of Copyright, published in 1847:

"The claim of authors, resulting from the principles of natural right, involves the perpetual duration of the property. But in order that such property should be of any value, it is necessary that society should interfere actively for its protection. It can interfere by the enactment of penalties, which, in order to be effectual, must be severe; or it can interfere by prohibition, which is a stern and summary exercise of power. Society will not ordinarily be willing to apply such remedies in favour of an exclusive right, further than it finds such a course beneficial to its own interests, in the broadest sense of the term. A perpetuity in literary property involves some inconveniences, which may come to be serious; one of which is, that the text of an author, after two or three generations, if the property be retained so long by his descendants, would belong to so many claimants, that disputes must arise as to the right to publish, which are very likely to prevent publication altogether."[18]

The passage from Copinger, and the substance of the opinion therein, was unquestionably lifted from Curtis' earlier text;[19] nor was this the only example of the same.

5. Copinger, Curtis and the History of Copyright

That Copinger borrowed liberally from Curtis is without doubt. This is certainly evident in his account of the nature and development of copyright prior to the Statute of Anne which commentary is littered with un-attributed ‘borrowings'. Curtis for example comments that "[t]he prerogative copyrights of the Crown of England constitute a peculiar branch of literary property, which has given rise to much controversy";[20] Copinger similarly writes that "[t]he prerogative copyrights of the Crown constitute a peculiar branch of literary property which has given rise to much controversy".[21] Curtis continues that "[t]he exclusive right of printing acts of parliament has been regarded more favourably that the other branches of the prerogative";[22] Copinger follows: "[t]he exclusive right of printing Acts of Parliament has been regarded somewhat more favourably than the other branches of the royal prerogative in question".[23] On the state of the book trade during the Interregnum, Curtis writes:

"In 1640, the star-chamber was abolished, and all regulations of the press and decrees against printing, as well as all the charter powers given to the stationers' company, were abolished. But the licentiousness that ensued led the two houses of parliament to pass a new ordinance, which prohibited printing unless the book had been first licensed and entered in the register of the stationers' company; and it also prohibited printing without consent of the owner, or importing (if printed abroad,) upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c. ... [I]t can therefore be of little doubt, that the understanding of the parliament was, that the property existed at common law, in the "owners" whom they chose to protect..." [24]

Copinger's account of the same runs as follows:

"In 1640, however, the Star Chamber was abolished; the king's authority was set at nought; all the regulations of the press, and restraints previously imposed against unlicensed printers by proclamations, decrees of the Star Chamber, and charter powers given to the Stationers Company, were deemed and certainly were illegal. The licentiousness of libels induced the Parliament to make an ordinance which prohibited printing unless the book was first licensed. The ordinance prohibited printing without the consent of the owner, or importing (if printed abroad), upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c. This provision necessarily presupposed property to exist; it would have been nugatory if there had been no admitted owner. An owner could not at that time have existed other than by common law."[25]

When writing about the actions of the Stationers' Company after the Licensing Act 1662 lapsed for the first time in 1679,[26] Curtis observed:

"In 1681, all legislative protection having ceased, the stationers' company adopted an ordinance or by-law, which recites that several members of the company have great part of their estates in copies; that by ancient usage of the company, when any book or copy is duly entered in their register to any member, such person hath always been reputed and taken to be the proprietor of such book or copy, and ought to have the sole printing thereof. The ordinance then further recites that this privilege and interest had of late been often violated and abused; and then it provides a penalty against such violation by any member or members of the company, where the copy had been duly entered in their register. The true view of this ordinance would seem to be, that the members of the stationers' company, finding their estates in copies, which belonged to them by the common law, no longer under the protection of the licensing act, the repeal of which had incidentally withdrawn the protection that had always been inserted in it, though it had necessarily no connection with the system of licensing, undertook to provide for the failure of the legislation, as far as they could, by an ordinance applicable of course to their own members only. The ordinance is not to be cited as any other proof of what the common law right was, than as it shows, in connection with other historical proofs, how it was then supposed to be."[27]

After some further comments upon the nature of the 1681 ordinance,[28] Curtis continues:

"It was much the same as if an association of persons were to agree that any one of their number should pay a penalty for violating the acknowledged rights of property of any other person in the association, provided such rights were duly entered in their common records. It would not be an attempt to create the right; but it would justly be regarded as an acknowledgment of the existence of such a right."[29]

Copinger's account of the same period reads as follows:

"In 1681, all legislative protection having ceased, the Stationers' Company adopted an ordinance or bylaw, which recited that several members of the company had great part of their estates in copies, that by ancient usage of the company, when any book or copy was duly entered in their register to any member, such person had always been reputed and taken to be the proprietor of such book or copy, and ought to have the sole printing thereof. The ordinance further recited that this privilege and interest had of late been often violated and abused; and it then provides a penalty against such violation by any member or members of the company, where the copy had been duly entered in their register. The true view of this ordinance would seem to be, that the members of the Stationers' Company, finding their estates in copies, which belonged to them by the common law, no longer under the protection of the Licensing Act (the repeal of which had incidentally withdrawn the protection that had always been inserted in it, though it had necessarily no connection with the system of licensing), undertook to provide for the failure of the legislation, as far as they could, by an ordinance applicable of course to their own members only. The ordinance is not to be cited as any other proof of what the common law right was than that it shows, in connection with other historical proof, what it was then supposed to be. It was much the same as if an association of persons were to agree that any one of their number should pay a penalty for violating the acknowledged rights of property of any other person in the association, provided such rights were duly entered in their common records. It would not be an attempt to create the right, but it would justly be regarded as an acknowledgment of the existence of such a right."[30]

To be fair, Copinger does at this point include a footnote which reads: "Curtis on Copy. p.38", and the last two sentences from Copinger's text do indeed come from Curtis at p.38; the remainder of the extract however is taken from Curtis at 36-37.

6. Story, Curtis and Copinger

When re-presenting the past, it is perhaps inevitable (or indeed necessary) that contemporary histories of any subject will rely upon previous accounts of the same. This being the case, it is no surprise that, within academia, historians are particularly vulnerable to allegations of plagiarism and un-attributed copying.[31] There are after all only so many ways of re-telling the same events before one begins to repeat that which has already been told. In this regard, that Copinger's account of the history of copyright in the sixteenth and seventeenth century bears the clear imprint of an earlier writer is arguably understandable. What is interesting, however, is that the clearly perceptible influence should be that of Curtis, and not for example John Lowndes' work on the history of copyright. That Copinger relies upon Curtis in this context makes sense however when one considers the extent to which Copinger was also guided by Curtis' work on matters of copyright doctrine and policy. Just as Copinger followed Curtis when considering the duration of the copyright term, he similarly drew upon the American's treatise when discussing other aspects of the current copyright regime. For example, Curtis summarised the various ways in which someone might infringe a copyright protected work as follows:

"[T]his right may be invaded in several ways; 1. By reprinting the whole work, verbatim; 2. By reprinting, verbatim, a part of it, either with or without acknowledgement of the source from which the extract or passage is taken; 3. By imitating the whole or a part, or by reproducing the whole of a part with colourable alterations and disguises, intended to give to it the character of a new work; 4. By reproducing the whole or a part under an abridged form."[32]

Copinger adopts the same categories for discussion (albeit adding a fifth):

"Copyright may be invaded in several ways:- 1st. By reprinting the whole work verbatim. 2nd. By reprinting verbatim a part of it. 3rd. By imitating the whole or a part, or by reproducing the whole of a part with colourable alterations. 4th. By reproducing the whole or a part under an abridged form. 5^th By reproducing the whole or a part under the form of a translation."[33]

When Copinger comments upon the third type of copyright infringement, he writes:

"There are many imitations of Homer in the Æneid; but no one would say that one was a copy of the other. ... There may be a strong likeness without an identity. The question is, therefore, in many cases a very delicate one: what degree of imitation constitutes an infringement of the copyright of a particular composition? ... It is very evident that any use of materials, whether they are figures or drawings, or other things which are well known and in common use, is not the subject of a copyright, unless there be some new arrangement thereof. Still, even here, it may not always follow that any person has a right to copy the figures, drawings, or other things, made by another, availing himself solely of his skill and industry, without any resort to such common sense."[34]

This is not taken from Curtis directly, but rather is taken from Story J (1779-1845) in Emerson v. Davies (1845), which quotation is reproduced by Curtis in a footnote in his section on infringement (also in relation to his third category of infringing acts):

"There are many imitations of Homer in the Æneid; but no one would say that the one was a copy of the other. There may be a strong likeness without an identity ... The question is, therefore, in many cases, a very nice one, what degree of imitation constitutes an infringement of the copyright in a particular work. It is very clear that any use of materials, whether they are figures or drawings, or other things that are well-known and in common use, is not the subject of a copyright, unless there be some new arrangement thereof. Still, even here, it may not always follow, that any person has a right to copy the figures, drawings, or other things, made by another, availing himself solely of his skill and industry, without any resort to such common source."

Here then we have a second guiding hand; not just Curtis, but Story J as well.[35] Indeed the work of both jurists, in combination, was to have a substantial influence upon Copinger in relation to the manner in which he approached questions as to the nature and scope of copyright protection, and the boundaries of permissible and impermissible use. This is particularly evident in Copinger's approach to and exposition of the concept of lawful abridgement.

7. The Concept of a Lawful Abridgement

When writing about the issue of abridgments Copinger set himself against the prevailing British jurisprudence. Since the time of Lord Hardwicke's (1690-1764) decision in Gyles v. Wilcox (1741) it had generally been accepted that, so long as an abridgement might be considered a "new book", evidencing the "invention, learning and judgment" of the abridging author, then the reproduction was considered lawful within the terms of the Statute of Anne; only those abridgements that were "evasive" in nature would infringe.[36] This particular approach focused upon the nature of the abridging author's contribution to the understanding, appreciation or critique of the original text, as opposed to whether the abridgment might supplant the original within the market. Indeed, that the abridgement might make a work more readily accessible, both intellectually and financially, was considered to be a generally desirable thing. No one captured this more succinctly perhaps than Lord Chancellor Apsley (1714-1794) in Hawkesworth v. Newbery (1775): "[T]he act of abridgement is an act of understanding, employed in carrying a large work into a smaller compass, and rendering it less expensive, and more convenient both to the time and use of the reader". As a consequence, he considered, "true and proper" abridgements were to be regarded as "new and meritorious work[s]".[37]

Charles Palmer Phillips, in 1863, commented that "[t]he publication of an unauthorized but bonâ fide abridgement or digest of a published literary copyright work is, it seems, no piracy of the original", which conclusion, he continued "was reached many years ago in Newbery's case".[38] Before Phillips, Godson, in the second edition of his work on patents and copyright (published in 1840), suggested that just as "there cannot be a monopoly of a general subject, it appears that books themselves for certain purposes, besides the mere act of reading them, may be used by the public" in that "[t]hey may be taken as the ground work of other literary labours". He continued:

"Many valuable works are so voluminous that abridgments of them are extremely useful. To make them, some judgment must be exercised, and some labour employed; and therefore the authors of them ought certainly to be encouraged ... The inquiry, whether the work is prejudiced by the manner of making the abridgment, cannot be entertained."[39]

Robert Maugham (1788-1862), a robust advocate of the natural rights of the author, writing in 1828, felt no evident need or compulsion to criticize the general principle that "a fair and bona fide abridgment of any book, is considered a new work; and however it may injure the sale of the original, yet it is not deemed a piracy or a violation of the author's copyright".[40] Even, Thomas Noon Talfourd (1795-1854), the nineteenth century champion of authors' rights par excellence, in the first of the many copyright bills that he brought before parliament in the late 1830s and early 1840s, included provision for "the publication of any extracts fairly and bona fide made from any Book for the purpose of criticism, observation or argument, or to any translation into another language, or abridgement fairly made of any book".[41]

Copinger however rejected such analyses. "The rule" that an abridgement did not infringe the original work, he argued "appears very unreasonable". "Why should an abridgment", he continued, "tending to injure the reputation, and to lessen the profits of the author, not be considered an invasion of his property?"[42] In determining what constitutes a lawful abridgement, he writes that:

"The question in such a case must be compounded of various ingredients: whether it be a bona fide abridgment, or only an evasion by the omission of some important parts, whether it will in its present form prejudice or supercede the original work, whether it will be adapted to the same class of readers, and many other considerations of the same sort, which may enter as elements, in ascertaining whether there has been a piracy or not."[43]

These comments are taken directly from Story J's opinion in Gray v. Russell (1839).[44] That one should focus on whether the abridgement, or indeed any form of derivative work, impacted upon the market value of the original work to determine the legality of the same, was not a concept that had taken root within British copyright discourse. Neither was it one that as yet dominated American jurisprudence. It was however a line of reasoning that both Story J and Curtis were instrumental in inculcating within the American copyright regime. As Bracha makes clear, it was Story and Curtis who provided the platform for "[t]he conceptual shift from the traditional trade privilege to reprint to the more abstract exclusive right to the entire value of the work ‘in any form'".[45] Curtis, for example, in 1847, argued that no matter how much "invention, learning, and judgment" someone might expend in abridging an existing work, "no writer can make and publish an abridgment, without taking to himself the profits of literary matter which belong to another";[46] in his opinion, "the English law on the subject of Abridgments needs revision".[47] Copinger unsurprisingly echoed Curtis in this regard: "The law with reference to abridgments might, we think, with justice receive some modification".[48]

8. On the Nature of Copyright Protection and Infringement

In 1863 when Charles Palmer Phillips attempted to articulate the general tenet that informed how best to draw the boundary between lawful use of a work and copyright infringement of the same, he did so as follows: "[T]hat any unauthorized use of a copyright book in a later publication is an infringement of the earlier, unless that use involves a fair amount of thought and judgment".[49] Phillips' guiding principle might be said to encapsulate the prevailing attitude to the use of copyright protected works that developed in the mid- to late eighteenth century, and informed attitudes in the early nineteenth century. In Millar v. Taylor (1769), for example, Aston J (1717-1778) described that which remained with an author after the publication of his or her work in the following terms:

"[T]he publication of a composition does not give away the property in the work; but the right of the copy still remains in the author; and no more passes to the public, from the free will and consent of the author, than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. He may improve upon it, imitate it, translate it, oppose its sentiments; but he buys no right to publish the identical work."

When discussing the preparation and publication of sea charts in Sayre v. Moore (1785) Lord Mansfield suggested that "whoever has it in his intention to publish a chart may take advantage of all prior publications", so long as what was produced was not simply a "servile imitation"; any efforts that advanced the existing knowledge base by correcting previous errors he considered should not be regarded as "servilely copying". Two principles, Mansfield suggested, were paramount in this regard: the first, "that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits"; the second, "that the world may not be deprived of improvements, nor the progress of the arts retarded".[50] Defining the scope of copyright protection in narrow terms, as a means of preventing the unauthorized publication of material that was in essence "identical" to that produced by the author, provided a means of accommodating these competing principles. At the start of the nineteenth century, Lord Ellenborough (1750-1818), in Cary v. Kearsley (1804), recast this basic paradigm when he observed that:

"[A] man may fairly adopt part of the work of another: he may so make use of another's labours for the promotion of science, and the benefit of the public: but having done so, the question will be, Was the matter so taken used fairly with that view, and without what I may term animus furandi? ... [W]hile I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles on science."[51]

In this way the continued production of all manner of useful or improving derivative works, such as abridgements, translations, dramatizations, and so on, might be encouraged and sustained without impacting upon the ‘natural rights' of the author.

Copinger, in the introduction to his treatise, observed that upon the publication of an author's work "no more passes to the public than the unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. The property in the composition does not pass".[52] In doing so, he was of course paraphrasing the first part of Aston J's comment in Millar, set out above. The manner in which Copinger defined the parameters of copyright protection, however, differed considerably from that of Aston, or Mansfield, or Ellenborough. When discussing the concept of infringement, Copinger suggested that:

"Regard must be had to the value of the work, and the value of the extent of the infringements; for while, on the one hand, the policy of the law allows a man to profit by all antecedent literature, yet, on the other, the use made of antecedent literature may not be so extensive as to injure the sale of the original work ... Full acknowledgement of the original, and the absence of any dishonest intention, will not excuse the appropriator when the effect of his appropriation is, of necessity, to injure and supercede the sale of the original work ..."[53]

This focus on protecting the value of the author's work, on addressing the problem of the derivative work as a market substitute, as well as the irrelevance of the second author's intentions or efforts, are all distinct features of the conception of copyright that both Story J and Curtis strived to articulate. When Copinger attempted to capture the "fundamental principle on which is based the protection afforded to authors from piracies", he defined it simply in terms of "the injury or damage caused to them by the depreciation in the value of their original works".[54] It was this principle, for example, that Copinger considered should guide the courts on the issue of abridgements: "It seems a very unsatisfactory answer to an original author, who has been injured by an abridgment, to say, that because the wrongful taker has exhibited talent and ingenuity, both in the taking and in the use which he has made of it, the original author has no remedy".[55] Curtis, naturally, had previously made the same point, albeit in slightly different terms:

"In the case of a colorable curtailment of the original work, there may be the exercise of a mental operation, as well as in a professed abridgment; and if the original author is injured by the latter, as well as by the former, it seems to be a very unsatisfactory answer in either case, to say, that his book has been made, by a mental operation, to wear the appearance of a new work."[56]

9. Walter Arthur Copinger: Plagiarist and Prophet

The British reviews of Copinger's work were by and large positive in their assessment of the treatise. One reviewer recommended it as "a work worthy of its subject, ... displaying at once the sagacity of a good legal text-writer and the refinement of a literary man dealing with a topic so near to the vitals of literature".[57] The reviewer for The Athenæum described it as "the most complete treatise upon the complex subject of copyright which has ever been published in England", a work "of great service not only to lawyers but also to authors and other proprietors of copyrights in ascertaining the extent of their rights, and the best means of protecting them".[58] The American reviews, perhaps naturally attuned to the extent to which Copinger had relied upon Curtis, provided more critical comment. The Albany Law Journal criticized the text for offering "not enough of the law of copyright, and too much of the law of Copinger".[59] It continued that: "Mr. Copinger's style is not so lucid as is desirable, and we hardly think his book will supplant Mr. Curtis' elegant work in this country, although it does form a useful supplement to it".[60] The American Law Review similarly castigated Copinger's work as no more than an addendum to that of Curtis. In January 1871, the reviewer observed that "[t]he cardinal principles which hold the subject together are stated by Mr. Curtis with such clearness and breadth of view as to leave a successor not much occasion for general disquisition". The value of Copinger's work, he continued, lay in the application of the principles which Curtis had elucidated to the mushrooming caselaw decided since Curtis first published his work.[61]

Nevertheless, the concept that copyright should protect the full potential commercial value of an author's work, articulated by Story and Curtis, and filtered through Copinger, began to find considerable purchase in British copyright discourse. In the year after Copinger's work first appeared, John Shortt published The Law relating to works of literature and art, in which he, like Copinger, placed considerable reliance on Story J's jurisprudence.[62] "[T]he leading and distinguishing feature of piracy is", he suggested, "that it reproduces the pirated work in such a manner as to interfere with the profit and enjoyment which the proprietor derives from it".[63] Six years later Purday replicated this sentiment verbatim (without attributing the source).[64] Slater, in 1884, another author to draw extensively upon the decisions of Story J, as well as the later American treatise of Drone on Copyright,[65] wrote that, when reproducing material from an existing work, "the primary, though not necessarily the exclusive subject of enquiry, is, what effect the extracts are likely to have upon the original work".[66] On the question of derivative works in general he observed that "[t]here would appear to be authority for the statement that a person is entitled as of right to take the copyrighted work of another and republish it, provided he materially improve it, either in corrections, revisions, or annotations, and does not servilely copy it"; about this principle he continued: "[T]hat if a plea of this nature were allowed to prevail, it would be impossible to afford protection to literary property at all".[67] Howard, three years later, referring to the existing case law on abridgments as "anomalous", continued that "[t]oo much dependence should not be placed upon it, for it has not had universal approval. It may be characterized as a law for the convenience of the public, at the expense of the painstaking author".[68]

Significant also was the fact that the 1878 Report of the Royal Commission on Copyright appeared to advocate that copyright law should seek to protect the author by preventing the unauthorized production of any work derived from and economically impacting upon the same. This rationale was evident in the Report's recommendation that an author should have the right to prevent the dramatization of his novel (or other work) for the duration of the copyright term:

"[I]t has been pressed upon us that it is only just that an author should be entitled to the full amount of profit which he can derive from his own creation; - that the product of a man's brain ought to be his own for all purposes; - and that it is unjust, when he has expended his invention and labour in the composition of a story, that another man should be able to reap part of the harvest."[69]

Like Copinger, the Report also recommended that the existing law on the ‘fair abridgment' of books should be revised. Even a fair abridgement, the Report concluded, "is capable of doing great harm to the author of the original work by interfering with his market; and it is the more likely to interfere with that market and injure the sale of the original work if, as is frequently the case, it bears in its title the name of the original author". As a result, they continued, "no abridgments of copyright works should be allowed during the term of copyright".[70] Copinger, in the second edition of his treatise (1881), made sure to include the Commission's recommendations about the same.[71] Slater, three years later, wrote that:

"[A]lthough an abridgment may be made of framed in such a manner as to escape the penalties of piracy, it will most likely be capable of inflicting serious loss on the author of the original work. The probability of this ought most certainly to be prevented, and no abridgments of copyright works should be allowed during the term of copyright without the consent of the owner of the copyright (see the report of the Copyright Commissioners, 1878, par.67)."[72]

10. References

Government papers and legislation

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

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

Report of the Royal Commission on Copyright, 1878, xxiv, C.2036

Cases

Levy v. Rutley (1871) 6 LR (CP) 1870-71 523

Chatterton and Webster v. Cave (1875) 10 LR (CP) 1874-75 572

Adams v. Clementson (1879) 12 LR (Ch) 714

Thomas v. Turner (1886) 23 Ch D 292

Aflalo and Cook v. Lawrence and Bullen [1903] 1 Ch 318

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408

Macklin v. Richardson (1770) Amb. 694

Clementi v. Walker (1824) 2 B&C 861

Wilkins v. Aikin (1810) 17 Ves Jun 422

Gyles v. Wilcox (1741) 2 Atk. 141

Hawkesworth v. Newbery (1775) Lofft 775

Gray v. Russell, 10 F.Cas. 1035 (C.C.D. Mass. 1839)

Sayre v. Moore (1785) 1 East 361

Cary v. Kearsley (1804) 4 Esp. 168

Emerson v. Davies, 3 St. Rep. 780 (1845)

Books and articles

Bewes, W.A., Copyright, Patents, Designs, Trade Marks (London: A.&C. Black, 1891)

Birrell, A., Seven Lectures on the Law and History of Copyright in Books (London: Cassell, 1899)

Bowker, R.R., Copyright: Its History and Its Law (Boston and New York: Hougthon Mifflin Company, 1912)

Bowker, R.R., Copyright: Its Law and its Literature (London: Sampson Low & Co., 1886)

Bracha, O., Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm

Chamier, D., Laws Relating to Literary Copyright (London: Effingham Wilson, 1895)

Copinger, W.A., County of Suffolk. Its history as disclosed by existing records and other documents, being materials for the history of Suffolk (Henry Sotheran & Co.: London, 1904)

Copinger, W.A., Index to Precedents in Conveyancing, and to Common and Commercial Forms (London: Stevens & Haynes, 1872)

Copinger, W.A., On the custody and production of Title Deeds, and other Documentary Evidence at Law, in Equity, and in matters of Conveyancing (London: Stevens & Haynes, 1875)

Copinger, W.A., Tables of Stamp Duties from 1815 to the Present Time (London: Stevens & Haynes, 1878)

Copinger, W.A., The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870)

Copinger, W.A., The Law of Copyright in works of Literature and Art, 2^nd ed. (London: Stevens and Haynes, 1881)

Copinger, W.A., The Law of Rents, with special reference to the sale of land in consideration of a rent charge or chief rent (London: William Clowes & Son, 1886)

Copinger, W.A., The Manors of Suffolk (London: Unwin, 1905)

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

Cutler, E., The Law of Musical and Dramatic Copyright (London: Cassell & Co, 1890)

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)

Easton, J.M., The Law of Copyright in Literature and Art, 4^th ed. (London: Stevens & Haynes, 1904)

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

Fraser, J., A Handy-book of Patent and Copyright Law (London: n.p., 1860)

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

Godson, R., A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: Saunders and Benning, 1840)

Guppy, Henry, "Copinger, Walter Arthur (1847-1910)", rev. Catherine Pease-Watkin, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online edition: www.oxforddnb.com/view/article/32559

Hoffman, D., Legal Outlines, being the substance of the first title of a course of lectures now delivering in the University of Maryland (Baltimore: n.p., 1836)

Hotten, J.C., Literary Copyright (London: Hotten, 1871)

Howard, A., Copyright: A Manual for Authors and Publishers (London: Griffiths, Farran & Co., 1887)

Jerrold, S., A Handbook of English and Foreign Copyright (London: Chatto & Windus, 1881)

Leverson, R.M., Copyright and Patents, or property in thought (London: Wildy and Son, 1854)

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: n.p., 1828)

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

Newton, A.V., An Analysis of the Patent and Copyright Laws (London: Trübner & Co., 1884)

Phillips, C.P., The Law of Copyright in works of literature and art and in the application of designs (London: n.p., 1863)

Purday, C.H., Copyright: A Sketch of Its Rise and Progress (London: n.p., 1877)

Putnam, G.H., The Question of Copyright (London & New York, G.P. Putnam's, 1891)

Scrutton, T.E., The Laws of Copyright (London: John Murray, 1883)

Shortt, J., The Law relating to works of literature and art (London: n.p., 1871)

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)

Singer, B., Copyright Laws of the World (Chicago: Singer, 1909)

Slater, J.H., The Law relating to Copyright and Trade Marks (London: Stevens and Sons, 1884)

Wiener, J., Historians in Trouble: Plagiarism, Fraud, and Politics in the Ivory Tower (New York: The New Press, 2005)

Winslow, R., The Law of Artistic Copyright (London: Clowes & Son, 1889)

[1] In general see C.H.S. Fifoot, Judge and Jurist in the Reign of Victoria (London; Stevens & Sons, 1859), 24-30; see also N. Duxbury, Judges and Jurists: An Essay on Influence (Oxford: Hart Publishing, 2001). On the history of the legal treatise 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] J. Montefiore, The Law of Copyright (London: 1802); R. Maugham, A Treatise on the Laws of Literary Property (London: 1828); J.J. Lowndes, An Historical Sketch of the Law of Copyright (London: Saunders and Benning, 1840).

[3] R. Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: Butterworth and Son, 1823); R. Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright (London: Saunders and Benning, 1840); R.M. Leverson, Copyright and Patents, or property in thought (London: Wildy and Son, 1854); J. Fraser, A Handy-book of Patent and Copyright Law (London: 1860).

[4] See for example: J. Shortt: The Law relating to works of literature and art (London, 1871); J.C. Hotten, Literary Copyright (London: Hotten, 1871); C.H. Purday, Copyright: A Sketch of Its Rise and Progress (London: 1877); S. Jerrold: A Handbook of English and Foreign Copyright (London: Chatto & Windus, 1881); T.E. Scrutton: The Laws of Copyright (London: John Murray, 1883); A.V. Newton, An Analysis of the Patent and Copyright Laws (London: Trübner & Co., 1884); J.H. Slater, The Law relating to Copyright and Trade Marks (London: Stevens and Sons, 1884); R.R. Bowker, Copyright: Its Law and its Literature (London: Sampson Low & Co., 1886); A. Howard, Copyright: A Manual for Authors and Publishers (London: Griffiths, Farran & Co., 1887); R. Winslow, The Law of Artistic Copyright (London: Clowes & Son, 1889); E. Cutler, The Law of Musical and Dramatic Copyright (London: Cassell & Co, 1890); G.H. Putnam, The Question of Copyright (London & New York, G.P. Putnam's, 1891); W.A. Bewes, Copyright, Patents, Designs, Trade Marks (London: A.&C. Black, 1891); D. Chamier, Laws Relating to Literary Copyright (London: Effingham Wilson, 1895); A. Birrell, Seven Lectures on the Law and History of Copyright in Books (London: Cassell, 1899).

[5] W.A. Copinger, The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870).

[6] See: Index to Precedents in Conveyancing, and to Common and Commercial Forms (London: Stevens & Haynes, 1872); On the custody and production of Title Deeds, and other Documentary Evidence at Law, in Equity, and in matters of Conveyancing (London: Stevens & Haynes, 1875); Tables of Stamp Duties from 1815 to the Present Time (London: Stevens & Haynes, 1878); The Law of Rents, with special reference to the sale of land in consideration of a rent charge or chief rent (London: William Clowes & Son, 1886).

[7] Henry Guppy, "Copinger, Walter Arthur (1847-1910)", rev. Catherine Pease-Watkin, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online edition: www.oxforddnb.com/view/article/32559, accessed 15 July 2007.

[8] See for example the acknowledgments as to the reliance upon Copinger's work in: Jerrold; Newton; Howard; Cutler; B. Singer, Copyright Laws of the World (Chicago: Singer, 1909); and R.R. Bowker, Copyright: Its History and Its Law (Boston and New York: Hougthon Mifflin Company, 1912).

[9] See for example the various references to Copinger in: Levy v. Rutley (1871) 6 LR (CP) 1870-71 523; Chatterton and Webster v. Cave (1875) 10 LR (CP) 1874-75 572; Adams v. Clementson (1879) 12 LR (Ch) 1879 714; Thomas v. Turner (1886) 23 Ch D 292; Aflalo and Cook v. Lawrence and Bullen (1902) 1 Ch 1903 318.

[10] J.M. Easton, The Law of Copyright in Literature and Art, 4^th ed. (London: Stevens & Haynes, 1904), Preface to the Fourth Edition.

[11] W.A. Copinger, County of Suffolk. Its history as disclosed by existing records and other documents, being materials for the history of Suffolk (Henry Sotheran & Co.: London, 1904).

[12] W.A. Copinger, The Manors of Suffolk (London: Unwin, 1905).

[13] Copinger, 1.

[14] D. Hoffman, Legal Outlines, being the substance of the first title of a course of lectures now delivering in the University of Maryland (Baltimore: 1836), sect.iii. Interestingly, Hoffman, rejected Locke's general thesis on property as grounded on labour, preferring instead the approach of Grotius who considered occupancy to be a more reliable and appropriate concept upon which to base a theory of property ownership. However, Hoffman continued that "the notions of Mr. Locke may have some degree of justness" when applied to "the fruits of intellectual toil". Hoffman wrote that "[l]iterary property, or the right of an author to the fruits of his mental exertions, has been regarded as an important natural right, and, as such, has often been the object of special legislation, and of grave and learned discussion", at which point in his text, he refers to the following British cases: Millar v. Taylor (1769); Donaldson v. Becket (1774); Macklin v. Richardson (1775); Clementi v. Walker (1824); Gyles v. Wilcox (1741); and Wilkins v. Aikin (1810). He continued: "It would be out of place, at this time, to state the enlightened arguments that have taken place in England on this point; but it is manifest from the cases to which we have referred, that the able judges who decided them, were familiar with the doctrines of natural jurisprudence, and sought most of their lights from the great code of natural law". See: Hoffman, 125-29.

[15] Copinger, 7, 10.

[16] Copinger, 11-15; see: uk_1557; uk_1559; uk_1566; uk_1586; uk_1643; uk_1662.

[17] Ibid., 55-56.

[18] G.T. Curtis, A Treatise on the Law of Copyright (Boston: Little and Brown; London: Maxwell and Son, 1847), 23-24.

[19] Where there any doubt, see the lengthy quotation which follows Copinger's text, in which the "Emperor Napoleon is reported to have stated [his] objection [to a perpetual right] in council with his characteristic practical wisdom"; Copinger, 57-58. The quotation is similarly taken from Curtis who likewise remarks upon the Emperor's "characteristic practical wisdom"; Curtis, 24, n.1.

[20] Curtis, 116.

[21] Copinger, 129.

[22] Curtis, 125.

[23] Copinger, 134-35.

[24] Curtis, 32-33.

[25] Copinger, 11.

[26] See: uk_1662.

[27] Curtis, 36-37.

[28] Ibid., 37-38.

[29] Ibid., 38.

[30] Copinger, 12-13; for further similarities between the two texts when recounting the historical development of copyright see, for example: Curtis, 33-35, and Copinger, 11; Curtis, 46-48, and Copinger, 15-16.

[31] See for example: J. Wiener, Historians in Trouble: Plagiarism, Fraud, and Politics in the Ivory Tower (New York: The New Press, 2005).

[32] Curtis, 238.

[33] Copinger, 95; although Copinger includes a fifth category concerning infringement by way of translation, Curtis also deals with this type of infringement in his own text, directly after he addresses the four categories he sets out at 238.

[34] Copinger, 98-99.

[35] On Curtis's relationship with Story, see: us_1847.

[36] Gyles v. Wilcox (1741) 2 Atk. 141. 143.

[37] Hawkesworth v. Newbery (1775) Lofft 775, 775-76.

[38] C. P. Phillips, The Law of Copyright in works of literature and art and in the application of designs (London: 1863), 127.

[39] Godson (1840), 344.

[40] Maugham, 130. Maugham did however note that "[t]he grounds of the decisions on this important subject as reported in the law books, are not altogether consistent in principle. In some of them it appears that the piracy occasioning, or obviously tending to, a depreciation in the value of the original work, is a fact on which mush reliance has been placed in determining the question. In others, this circumstance has been altogether disregarded". As regards the former, he referred to Roworth v. Wilkes (1807) as a case in point, "in which a large part of a treatise on fencing was transcribed, though there might have been no intention to injure its sale, yet as it might serve as a substitute for the original work, and was sold at a much lower price, it was held actionable and damages were recovered". That case, however, in Maugham's opinion, was not one that touched upon the concept of a "bona fide abridgment, in which labour and judgment had been applied", but concerned a situation of "wholesale compilation, in which seventy-five pages were successively transcribed, without addition or alteration, and on which no skill or learning had been bestowed, the exercise of which may be considered as the true criterion by which to determine the bona fide character of the abridgment or compilation"; ibid.

[41] Bill to consolidate and amend Laws relating to Copyright in Printed Books, Music, Plays and Engravings, 1837, (380) 1: 573, clause 13.

[42] Copinger, 36.

[43] Ibid.

[44] Gray v. Russell, 10 F.Cas. 1035 (C.C.D. Mass. 1839), 1038.

[45] O. Bracha, Owning Ideas: A History of Anglo-American Intellectual Property, http://www.obracha.net/oi/oi.htm [accessed 1 May 2007], 323.

[46] Curtis, 276.

[47] Ibid., 265.

[48] Copinger, 101-102.

[49] Palmer, 110-11.

[50] Sayre v. Moore (1785) 1 East 361, 362.

[51] Cary v. Kearsley (1804) 4 Esp. 168, 170.

[52] Copinger, 10.

[53] Ibid., 84.

[54] Ibid., 102.

[55] Ibid.

[56] Curtis, 272.

[57] Westminster Review 39 (1971): 539-40.

[58] The Athenæum, 2 vols (1870) 2: 682.

[59] Albany Law Journal 3 (1871): 259.

[60] Ibid.

[61] American Law Review 5 (1871): 337-38.

[62] In particular, he made extensive reference to the decision of Folsom v. Marsh, 2 St. Rep. 115 (1841), as well as to Story J's decision in Emerson v. Davies, 3 St. Rep. 780 (1845); in addition, he made a number of references to M'Lean J's decision in Story's Executors v. Holcombe, 4 M'Lean 310 (1847), as well as to Curtis's work. See Shortt, 168-69, 173, 180, 185, 188.

[63] Shortt, 168. Shortt did also continue by noting that "everything that does this by no means lays the author of the interference open to the charge of piracy. For example, a bona fide abridgment of a book may seriously impair the profit which the proprietor of the larger work derives from it, at the same time that it subjects the author of the abridgment to none of the penalties which the law attaches to piracy. Nevertheless, where the act done is not one of those which are in express terms prohibited by statute, no finer test of piracy has been applied in the various cases on record than that of the degree in which one work interferes, by reproduction, with the benefits derivable from another work in which copyright exists"; ibid., 168-69.

[64] Purday, 110.

[65] E.S. Drone, A Treatise on the Law of Property in Intellectual Productions (Boston: Little, Brown, and Company, 1879). Drone picked up very much where Curtis had left off in relation to what constituted infringement of a copyright work in general, as well as the place of lawful abridgments within the copyright regime in particular. He wrote, for example, that: "The true test of piracy, then, is not whether a composition is copied in the same language or the exact words of the original, but whether in substance it is reproduced; not whether the whole, but whether a material part, is taken. In this view of the subject, it is no defence of piracy that the work entitled to protection has not been copied literally; that it has been translated into another language; that it has been dramatized; that the whole has not been taken; that it has been abridged; that it is reproduced in a new and more useful form. The controlling question always is, whether the substance of the work is taken without authority"; ibid., 385.

[66] Slater, 35.

[67] Ibid., 37.

[68] Howard, 8. On infringement in general he wrote: "We do not propose here to go into further definition, or to distinguish piracy from plagiarism - for more detailed information on these subjects generally we refer our readers to the text books, such as Drone, Copinger, Slater, Shortt, &c."; ibid., 32.

[69] Report, xvi.

[70] Report, xv. There was, however, no unanimity amongst the Commissioners about either these recommendations or the principles upon which they appeared to be founded. For example, Sir James Stephen, who prepared the Digest of the Law of Copyright appended to the Commissioner's Report, dissented from both of these recommendations, as well as the various suggestions "made for extending copyright in works of art, and rendering the remedies against persons who infringe existing rights more efficacious". In Stephen's opinion, the protection which the legislation offered to authors should extend no farther than to prevent the mass reproduction of the original work in its original form. Derivative works, adaptations, and even direct copies that were not mass-produced, were not to be drawn within the prohibitive parameters of the copyright regime at all; for further details, see: uk_1878.

[71] W.A. Copinger, The Law of Copyright in works of Literature and Art, 2^nd ed. (London: Stevens and Haynes, 1881), 62.

[72] Slater, 70.