Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1878

Commentary on the Royal Commission's Report on Copyright (1878)

Ronan Deazley

Birmingham Law School, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on the Royal Commission's Report on Copyright (1878)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Canadian Copyright Act 1875

4. The Association for the Protection of the Rights of Authors

5. Mallet and Farrer; Free Trade and Monopoly

6. The Nature, Purpose and Scope of Copyright

7. Implementing the Report

8. References

1. Full title

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

2. Abstract

The first major governmental review of the national, colonial, and international copyright regime. The commentary explores the background to the Royal Commission and in particular the efforts of the Association for the Protection of the Rights of Authors in lobbying for law reform. The commentary also explores the extent to which debates about free trade and monopoly commended the attention of the Commissioners and provided a challenge to the dominant conception of copyright - that is, copyright as a property right. The Report affirmed that copyright should continue to be regarded as a property right, and acknowledged the need for reform and consolidating legislation. Beyond that, however, the Commissioners were in considerable disagreement as to copyright's purpose and proper scope, with few of the Report's major recommendations receiving the unanimous support of the same.

3. The Canadian Copyright Act 1875

In 1847 the Foreign Reprints Act was passed in an attempt to address complaints in the colonies, and in particular in the North American territories, about the prohibitively high cost of British publications. The style of publication in England tended to inflate the cost of new works such that they were beyond the means of the ordinary reading public in Canada. Moreover, these books were often readily available as lower quality reprint editions in the United States for a fraction of the English price. The combination, however, of existing copyright and customs legislation made it unlawful to import the cheaper American reprints into the Canadian provinces. What was wanted was "a wide dissemination of the cheap and popular literature of the age"; what the Foreign Reprints Act provided was a mechanism whereby the colonies could freely import foreign (for which, read American) reprints subject to the payment of an appropriate duty upon the same, the proceeds of which were to be distributed to the copyright owner in Britain.[1] However, given the 3,000-mile border which America shared with Canada, the scheme proved unenforceable and largely ineffective with little duty revenue ever making its way back to Britain. In 1869 George Lefevre (1831-1928), secretary of the Board of Trade, assessed the operation of the duty system under the 1847 legislation as "a complete failure". He continued: "the Colonists collect next to nothing for the British author, and are supplied with United States reprints, which are smuggled across the border without paying duty".[2]

The difficult nature of Anglo-Canadian copyright relations in the years that followed the passing of the Foreign Reprints Act, leading up to the appointment of the Royal Commission on Copyright in 1875, is recounted in some detail by Seville in her work The Internationalisation of Copyright Law.[3] With the passage of the British North America Act 1867, and the establishment of Canada as a self-governing dominion, the new Canadian Parliament assumed jurisdiction over, amongst other things, copyright legislation.[4] The 1867 Act, however, also delegated the function of the Crown to assent to enactments of the Dominion parliament to the Canadian Governor General, who could withhold his assent, or reserve for the consideration of Westminster, any proposed measure that was considered to conflict with Imperial legislation.[5] When the first Canadian Copyright Act was passed in 1868,[6] it was, in essence, a restatement of the scheme devised under the 1847 Act.[7] When the Act was sent to the Governor General for approval, the Senate also took the opportunity to "impress upon Her Majesty's Government the justice and expediency" of extending the benefit of the 1847 legislation to "colonial reprints".[8] That is, they proposed that the provisions of the 1847 Act should be extended to allow Canadian publishers to reprint British works upon payment of an appropriate duty. The British government was reluctant to introduce this kind of licensing scheme for various reasons. It raised the spectre of the fragmentation of the existing system of Imperial copyright; moreover, it was thought that introducing such a scheme in Canada might jeopardise the possibility of negotiating a copyright treaty with America.[9]

Throughout the next seven years, diplomatic relations between Britain and Canada became increasingly fractious,[10] culminating in assent being refused for a Canadian Copyright Act of 1872 which sought introduce the kind of licensing scheme proposed in 1868.[11] Eventually a compromise position was reached with the passing of the Copyright Act 1875 in Canada,[12] and the Canadian Copyright Act 1875 in Britain.[13] The combined intent of these two measures was to encourage the production of authorised, but affordable, Canadian editions of British works for the Canadian market, which editions would supplant the existing demand for unauthorised American reprints within that market, while at the same time protecting the British publishers against an influx of these cheaper authorised Canadian reprints.[14] The original proposal that Canadian publishers should be free to reproduce British works upon the payment of a fixed duty was by and large abandoned, in that it was retained within the Canadian legislation only for works that were out of print, and only upon the licence of the Canadian Minister of Agriculture.[15]

4. The Association for the Protection of the Rights of Authors

The discord between Britain and Canada over the copyright question throughout the 1860s and early 1870s was played out not just in diplomatic dispatches, but also in the press.[16] One author who lent his voice to the debate was John Edward Jenkins (1838-1910), the author of Ginx's Baby, his Birth and other Misfortunes, a work which Graves describes as "a satire on the struggles of rival sectarians for the religious education of an abandoned child".[17] Seville recounts the episode as follows: "In 1871 the Publishers' Circular reported that [Ginx's Baby] had been reprinted in Canada, but no duty had been sent to the author. The article also noted that although the 1865 Colonial Laws Validity Act provided that any colonial law which was repugnant to an Imperial Act was void, the issue was too sensitive to be tested".[18] Jenkins, she continues, set out his reasons for not bringing legal action to assert his rights in a heavily sarcastic comment in the Daily News in June 1871:

"Ginx's Baby might be the crux of Empire. I should have raised the delicate question of Imperial Relations, and the 600,000 persons said to have enrolled in the Dominion militia would be immediately called out to vindicate the right of Canada to legislate for herself, and to rob an Englishman ... I dare not face the consequences, so I appeal to you."[19]

Jenkins would return to the question of copyright, both domestic and colonial, after his election as M.P. for Dundee in 1874.

In the same year that the Canadian Copyright Act was passed, the International Copyright Act 1875 was also enacted. The Act was a modest affair, designed only to address some complaints which the French government had about the arrangements negotiated under the existing Anglo-French copyright treaty of 1851.[20] Jenkins, while supporting the measure, was nevertheless unhappy about its limited scope:

"Probably there was no class of Her Majesty's subjects who suffered at this moment such wrongs as authors. If he were asked to classify Her Majesty's subjects from below upwards, he should begin with the scavengers, theirs being the lowest trade, put sweeps in the second place, and in the third, authors. Not only were authors subjected to injustice at the hands of their publishers at home, but they were continually plundered by publishers abroad ... When he saw that a measure was to be introduced with so large a title as "International Copyright" he had hoped that the hon. Gentleman would submit to the House something more worthy of its attention than the mere rag introduced to-day."[21]

There are two things of note about Jenkins' remarks. The first was his evident dissatisfaction with the present state of Britain's international copyright relations which, he considered, resulted in "serious injustice" for British authors. The most problematic relationship in this regard, was of course, that with America.[22] The second, however, was that he should lay part of the blame for the lamentable situation in which British authors found themselves at the door of the British publishers. In this regard it comes as little surprise to find that Jenkins was instrumental in founding the Association for the Protection of the Rights of Authors, which organisation first convened, under the presidency of Tom Taylor, in the library of the Canadian Embassy in London on 1 March 1875.[23] It was as a result of the efforts of this group, made up primarily of writers and dramatists, rather than publishers, that the Royal Commission on Copyright was appointed.

On the day after the Association first met, The Times reported that this "influential meeting of literary and dramatic authors" had convened "for the purpose of considering the current state of the law relating to literary and dramatic copyright both at home and abroad, and also in the colonies". Following a presentation "on the past and present state of the law of copyright" by the author and journalist Moy Thomas (1828-1910), it was agreed that the Association would petition parliament to appoint a Select Committee to "inquire into the whole subject of domestic, international and colonial copyright". In addition, "[a] general committee of literary men, with a smaller working or executive committee, was also appointed to influence the public mind upon the subject, and to take such action as may be thought necessary in the interest of authors themselves".[24] Given the number of journalists and newspapermen present, the opportunities for keeping the opinions and the work of the Association in "the public mind" were many. Both Moy Thomas and Justin McCarthy (1830-1912), for example, wrote for the Daily News. The editors of the Gentleman's Magazine, the Illustrated Midland News, Fraser's Magazine, and Lloyd's Weekly Newspaper were all present,[25] as was Dr Charles Cameron (1841-1924), the owner of the Glasgow daily, the North British Daily Mail. Edward Walford (1823-1898) and Henry Sutherland Edwards (1828-1906) both wrote for The Times, James Rice (1844-1882) was the London correspondent for the Toronto Globe, and Dutton Cook (1831-1883) was the regular theatre critic for the Pall Mall Gazette. It was in this last paper that the novelist Charles Reade (1814-1884), a prominent member of the Association, published a series of thirteen letters in 1875 on The Rights and Wrongs of Authors.

On 10 May 1875, the Prime Minister Benjamin D'Israeli (1804-1881), received a deputation from the Association, at 10 Downing Street, the substance of which meeting was reported at length in The Times the following day. Among the members of the deputation were the novelists Mary Elizabeth Braddon (1835-1915) and Thomas Hardy (1840-1928), and Charles Culliford Boz Dickens (1837-1896), the eldest son of the lately deceased author, and a magazine editor in his own right. After Jenkins, Moy Thomas, Charles Reade, and the journalist George Augustus Sala (1828-1895) had spoken to the Association's general concerns about the state of copyright law, both domestic and international, D'Israeli promised to "give the most entire attention to what is placed before me, and I will endeavour to take such a course as I think will remove some of the burdens, annoyances, and vexations that now exist". He continued:

"[M]y first impression is that a Royal Commission or a Treasury Commission would be better than a committee of the House of Commons, because if we have a Commission we can place on it those who are practically acquainted with these points - gentlemen in the interests of journalists, and those who represent the interest of the drama; and although a Committee of the House of Commons is a very efficient tribunal, still they are obliged in questions of this kind to obtain information second-hand - by the mere examination of witnesses; whereas a Commission, if it consists of those who are connected with the interests concerned generally, can go more thoroughly and entirely into the questions."[26]

Jenkins put a question to D'Israeli later that day, in the House of Commons, as to whether the government would consent to "the immediate appointment of a Select Committee or Royal Commission to inquire into the subject of Copyright and Copyright Legislation".[27] D'Israeli, referring to his meeting with the Association that morning, responded: "I stated then that the representations made to me were of a grave character and deserving the consideration of the Government, and that after considering them I should give my decision".[28] He continued: "The time, however, has hardly been long enough since I received that deputation this morning for me to give that decision".[29]

In October, a Royal Commission was duly appointed, with Earl Philip Henry Stanhope (1805-1875) as the Chair. Stanhope (or Lord Mahon as he was then) was responsible for steering the Copyright Amendment Act 1842 through parliament, after four years of unsuccessful lobbying on the part of Thomas Noon Talfourd (1795-1854) to secure legislation on the same.[30] Stanhope died however within weeks of his appointment, and nearly six months passed before Lord John Manners (1818-1906), the Postmaster General, was named as Stanhope's replacement.[31] When the Commission was re-established in April 1876, among the Commissioners appointed were: Jenkins; Sir John Rose (1820-1888), the Canadian Minister of Finance; Sir Louis Mallet (1823-1890), formerly of the Board of Trade, but now the permanent under-secretary in the India Office; the composer Julius Benedict (1804-1885); the jurist and legal reformer James Stephen (1829-1894); William Smith (1825-1891) the Financial Secretary to the Treasury; James Froude (1818-1894) the historian, and former editor of Fraser's Magazine; the novelist Anthony Trollope (1815-1882); and the publisher Frederick Richard Daldy.[32] The nature of their task was both brief in description and extensive in scope: "to make Inquiry with regard to the Laws and Regulations relating to Home, Colonial, and International Copyright".[33] Between May 1876 and May 1877 they heard evidence from nearly fifty witnesses, drawn from the worlds of publishing and journalism, architecture and the arts, economics and politics.[34] A further full twelve months passed before the Commissioners released their Report in May 1878.

5. Mallet and Farrer; Free Trade and Monopoly

The work of the Commissioners and the Report they produced has been variously described as: the "most thorough analysis which has ever been made of the late nineteenth century law of copyright in Britain", albeit one that had "almost no practical effect";[35] "one of the most valuable contributions to the literature of copyright";[36] and as "a serious attempt from within the government to abolish copyright law or at the very least to rethink its immanent ideology and economics from the standpoint of free trade, and, at least putatively, in the name of the public interest".[37] If these assessments of the work of the Commission appear somewhat at odds, that is perhaps because the final Report itself exhibited little unanimity of thought on the part of the Commissioners. Of the fifteen Commissioners, only five signed the Report without reservation.[38] Nine others signed the Report, while attaching some form of dissenting opinion or comment thereto. Sir Louis Mallet refused to sign the Report at all, but instead prepared his own ten-page report which, as Saint-Amour observes, "all but repudiated the Report's central conclusions".[39] What the Commissioners were in agreement about was the need for legislative revision. The law as it currently stood, they observed:

"[C]onsists partly of the provisions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports."

This law, they continued, "is wholly destitute of any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill expressed that no one who does not give such study to it can expect to understand it".[40] The question as to how best to revise the law, however, gave rise to considerable discord and dissent.

Perhaps the most profound point of disagreement that lies at the heart of the Report concerned the very nature and function of copyright itself, set against a backdrop of arguments about free trade and commercial protectionism. This lay at the core of Sir Louis Mallet's separate report. Mallet was an acolyte of Richard Cobden (1804-1865), who, between 1838 and 1846, had spearheaded the campaign for the repeal of the Corn Laws, arguing that removing duty on importing foreign corn would not only increase European demand for British commodities, but would also ensure that domestic agriculture became more competitive, and so more efficient. In 1860, when Cobden negotiated and signed the free trade agreement with France (the Cobden-Chevalier Treaty), which resulted in the abolition of duties on most French imports into Britain, in return for which the duty on British imports into France was gradually reduced, Mallet acted as his assistant commissioner. As Williams notes, working with Cobden would prove to be a turning point in Mallet's career:

"He became an enthusiastic proponent of Cobden's ideas and was launched into diplomatic work, resulting in some sixty commercial treaties in Europe. Cobden's death in 1865 left him the principal authority on commercial policy, and the chief official representative of free-trade opinion. He was joint plenipotentiary for negotiating treaties of commerce and navigation with Austria in 1866. This established his reputation as chief adviser to the British government in matters of commercial foreign policy."[41]

Mallet, in preparing his separate report, brought his free trade economics to bear upon the copyright question:

"I do not consider a copyright law, or, in other words, a law which enables a copyright owner to prevent other persons from copying published works, rests upon the same grounds of public expediency as those which justify the recognition by law of proprietary rights generally. Nor does it appear that in modern times it has been ever so regarded by the legislation of the countries where it exists."[42]

The predominant conception of copyright, he suggested, was an artificial and an erroneous one: "the claim of an author to a right of property in his published works" he argued "rests upon a radical economic fallacy, viz., a misconception of the nature of the law of value". Only from a limitation of supply, he suggested, can there be any value in exchange: "[p]roperty exists in order to provide against the evils of natural scarcity". He continued:

"To limit that which is in its nature unlimited, and thereby to confer an exchangeable value on that which, without such interference, would be the gratuitous possession of mankind, is to create an artificial monopoly which has no warrant in the nature of things, which serves to produce scarcity where there ought to be abundance, and to confine to the few gifts which were intended for all."

The present copyright laws, he concluded, operated in exactly this manner. Without it, works might be multiplied indefinitely, subject only to the cost of paper and printing, to the "greatest possible advantage" to society.

When considered in this light, Mallet continued, the only coherent rationale for having a copyright regime, therefore, turned on the fact that "only by conferring a monopoly for a term of years on an author that sufficient inducement can be afforded to literary effort, and that without such form of protection the literature of a country would suffer, either from a diminished supply or a deterioration in quality". To this end, Mallet proposed that the interests of authors and the interests of publishers should be distinguished and disentangled by means of a royalty system "which gives to the author the exclusive right of publication for a term of years". Whereas "the profits of authorship" require some protection to ensure the continued production of useful works, the "profits of publication" he argued should be regulated and controlled "by the ordinary laws of trade". Should "free competition between publishers" operate in this way, "the author and the public would alike be benefited - the first by an extended circulation of his works, and the second by a reduction in their cost".[43]

Mallet was not alone in propounding these opinions. In his report he drew upon the evidence given to the Commission by Thomas Farrer (1819-1899), another ardent free trader, and, since 1867, the permanent secretary to the Board of Trade. Farrer, was originally appointed to be one of the Commissioners under the Chair of Earl Stanhope.[44] When the Commission was reconvened under Lord Manners however, Farrer was no longer listed as a Commissioner; instead, he appeared before the Commission, as a witness, no less than eight times. When he appeared before the Commission for the third time, on 31 January 1877, Farrer made clear the extent to which he considered the existing regime of domestic and colonial copyright had been "looked at and legislated on too much from an English publisher's point of view".[45] Copyright policy he considered should be determined with two interest groups in mind: "[t]he real question is how to give authors the amplest encouragement and reward without imposing on the public a higher price or more onerous conditions than are necessary for that purpose".[46]

In developing his thoughts on the copyright regime, Farrer drew upon the combined effect of the Dominion Copyright Act and the Canadian Copyright Act. Since the Canadian Act had come into force, thirty-one works by British authors had been published, with the author's consent, in Canada, as a result of which few British editions of those works sold within the Canadian market. Significantly, however, American reprints of the same appeared to have been supplanted by the indigenous colonial editions. To that extent, the Canadian publishers seemed to be enjoying some success under the new legislative regime. Farrer continued, however, that the price of the colonial editions were by and large much lower than the English editions of the same. Taking the example of The Devil's Chain, a work by Jenkins, Farrer explained that the price of the English edition in Canada was 6s. 1¾d., whereas the Canadian edition was 2s. 0½d. The Canadian edition of Pausanias the Spartan, by Edward Bulwer-Lytton (1803-1873), sold for 3s. 0¾d., whereas the English edition was priced at 13s. 4d., and so on. Given that the Canadian Copyright Act, however, prohibited importing the cheaper colonial editions into Britain, and that there was nothing to prevent Canadian publishers exporting their works to the other colonies, Farrer suggested that the inevitable outcome of the current arrangement was as follows:

"[T]he residents on the United Kingdom will be the only English-speaking people in the world who remain at the mercy of English publishers, and they will be condemned through the medium of an Imperial Statute to pay a needlessly high price for works of their own authors, or in other words, to forego the advantages of a cheap literature, in order that their offspring all over the world may have better opportunities of reading and of education than themselves."[47]

Upon this basis, he recommended the abolition of the ban on importing colonial reprints to ensure that any work published with the consent of the author "in any part of the world shall have free access to the market of this country".[48]

Beyond the question of the trade barrier between Canada and Britain, and its impact upon the British reading public, Farrer made clear his thinking as to the conceptual basis of copyright. There was, he considered, no such thing as a natural right of property in the work of an author. Rather, "both patents and copyrights were originally and are essentially monopolies in the strict legal sense of the word".[49] As such, he was of the opinion that "the expediency of copyright laws like all other laws should be considered with reference to the general interests of the community, rather than with reference to supposed abstract rights of property on the part of the authors".[50] To implement an "ideal system of copyright", he continued:

"[I]t should be co-extensive with the English language, giving the author the benefit of an enormous market, and the reader the benefit of a price proportionately reduced. But in order to effect this, [the] monopoly must be in some way restricted. And I have heard of no means of doing this which sounds practicable except that by way of a right of republication with a royalty."[51]

A royalty system, such as that proposed by the Canadians in 1868, was, in his opinion, the most effective manner in which "the monopoly might be continued for the benefit of authors, [while] at the same time restricted, so as to do justice to the public".[52] Farrer speculated that "[t]he royalty system would no doubt be a great experiment",[53] however, bearing in mind the existing interests of both authors and publishers under the current regime, he stopped short of recommending its wholesale adoption; at least not at this juncture.[54]

The perspectives which both Mallet and Farrer had brought to the work and the deliberations of the Commission were not destined to shape the Report which the Commissioners finally released in May 1878. After briefly summarising the nature of the arguments in favour of a royalty system, the Report simply continued that "it is unnecessary to discuss the subject in greater detail, or to point out the practical difficulties which the introduction of such a scheme would necessarily involve, or how those difficulties might possibly be more or less obviated, because we are unable, after carefully considering the subject, to recommend for adoption this change in the existing law". Instead, it recommended "that copyright should continue to be treated by law as a proprietary right".[55]

6. The Nature, Purpose and Scope of Copyright

Although the Report recommended that copyright continue to be treated "as a proprietary right", it said little else to clarify what that actually meant. Indeed, as Feather correctly observes, in this regard, "the Commissioners made no serious attempt to define copyright, even though they themselves rightly noted the confusion in the law, and argued that it arose, in large part, from the very lack of definition".[56] About the perennial debate as to whether copyright, as a form of property, was the natural right of an author, or was created by way of statutory intervention, the Report refused to commit one way or the other:

"[W]e do not propose to enter upon the history of the Copyright Laws, nor to discuss the various questions that have from time to time been raised in connexion with the principle involved in those laws. It is sufficient for the present purpose to refer to the above-mentioned cases of Millar v. Taylor, Donaldson v. Becket, and Jeffries v. Boosey, and to the debates that have taken place in Parliament, in which the arguments on one side and the other are fully set forth."[57]

Of the Commissioners, Jenkins was one of the few to specifically set out his own opinion on the matter. For him, the situation was clear: "[t]he statute law creates, it does not recognise, copyright".[58] That Jenkins, as one of the founding members of the Association for the Protection of the Rights of Authors, on the one hand passionately argued for the need for greater, and indeed universal, protection for all authors irrespective of nationality,[59] while at the same time rejecting the concept of copyright as natural property, was certainly unusual. During, and since, the literary property debates of the mid-eighteenth century, those advocating a stronger and more robust copyright regime tended to represent copyright as a natural authorial right. When Thomas Huxley (1825-1895) gave evidence before the Commission, his position was typical in this regard: "[I]f there be any foundation for rights of property, the right of an author in a book is as complete, and extends as far as the right of any person to any property whatsoever".[60] By contrast, Jenkins considered: "There is no such thing as an inalienable natural right to the form in which a man has embodied his ideas. The copyright law is, like the patent law for invention, a creation of a temporary monopoly, for the encouragement of learning. It is the outcome of expediency and not of principle".[61]

Aside from the nature of copyright, there was also considerable disagreement as to its purpose and proper scope. If left to Mallet and Farrer, the copyright regime would have been shaped with the interests of the public uppermost in the legislator's mind; "it is impossible", observed Farrer, "to exaggerate the benefit which might arise from thoroughly cheap literature in educating our people".[62] By comparison, various aspects of the final Report proffered an altogether different rationale upon which to develop copyright policy. It recommended, for example, that the existing law on the ‘fair abridgment' of books should be abandoned. 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".[63]

Eight years previously, Copinger (1847-1910) had, in the first edition of his treatise, The Law of Copyright, recommended a similar change, and upon a similar basis.[64] In attempting to capture the "fundamental principle on which is based the protection afforded to authors from piracies", Copinger defined it simply in terms of "the injury or damage caused to them by the depreciation in the value of their original works".[65] It was this principle 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".[66] Like Copinger, the Report appeared to be advocating that copyright law should seek to protect the full economic potential of an author's work in preventing the unauthorized production of any work derived from and impacting upon the same. This rationale and language was also 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."[67]

Again however, there was no unanimity about either these recommendations or the principles upon which they appeared to be founded. Sir James Stephen, who prepared the Digest of the Law of Copyright appended to the Commissioner's Report,[68] and who vehemently objected to the proposal that any form of royalty system should be introduced,[69] 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". He continued:

"All the proposals appear to me to be founded upon a mistaken view of the principle on which the law of copyright ought to be based. They assume that the author of a work of art ought to be considered to have a right to every advantage which can possibly be derived from that work of art, even indirectly and by the exercise of independent ability. A dramatic author is not to use a novel as material for a drama, a painter is not to copy the painting of another painter, although in the one case the adaptation and in the other the copy may require great labour and skill ... The law of copyright ought, in my opinion, to protect money interests only; and I think that the only money interests which it should protect are those which it creates; that is to say, the money interest of the author of a work of literature or art capable of being reproduced by mechanical means in such a manner that every copy is as valuable as the original."[70]

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.[71]

Other points of disagreement emerged in relation to the appropriate duration of the copyright term,[72] the significance of registering the work (and whether the enjoyment of copyright should be contingent upon registration or deposit of the work),[73] and who was best placed to administer the registration system.[74] Similarly, there was discord about whether the ban on importing colonial editions should be retained,[75] as well as the basis upon which international copyright relations should proceed with other nations.[76] In short, there was little of substance in the final Report, other than the recognition of the need for reform, upon which the Commissioners were all agreed.[77]

7. Implementing the Report

In an effort to ensure that the recommendations of the Report were acted upon, on 9 December 1878 two of the Commissioners, Jenkins and Farrer Herschell, sought leave to prepare and bring in a Bill for the purpose of consolidating the laws of copyright.[78] In February 1879, however, Jenkins tabled a question in the Commons as to whether "the Government intend to introduce a Copyright Bill this Session; and, whether it will embrace all the subject of Copyright?"[79] Lord Manners replied that the government did intend to do so, after which Jenkins withdrew his own Bill "in order that the passage of the Government Bill might not be in any way obstructed".[80] On 29^th July Manners was given leave to bring in his Copyright (No.2) Bill, that substance of which, by and large, followed the recommendations of the Commission;[81] this, however, came to nothing.[82]

Following the general election of 1880, D'Israeli and the Conservatives were deposed, and Gladstone (1809-1898) was returned to office for a second time. When, on 31 May 1880, the new Prime Minster was asked whether it was the intention of the government to introduce a Bill, he responded that the question: "has touched upon a subject of very great and peculiar interest to me - an interest greater, perhaps, than that attached to the question by the general public. I should be very glad indeed to see it dealt with; but I am afraid that, in view of the demands upon the attention of the House, I cannot give any specific pledge as to the time when the matter will be likely to receive the attention of the Government".[83] A Bill was introduced in 1881, not by the government, but as a result of the efforts of a committee of the Law Amendment Society.[84] This Bill, like that brought in by Lord Manners, failed to proceed beyond a second reading.

Throughout the remainder of the decade, a series of private copyright bills were brought in, none of which sought to consolidate the entirety of the copyright regime in the same way as the 1879 and the 1881 Bills had attempted to do so.[85] At the same time, governmental copyright policy came to be dominated by developments on the international stage resulting in Britain signing up to the Berne Convention in September 1886.[86] Not until the passing of the Copyright Act 1911 were the various strands of British copyright law drawn into one coherent legislative measure.[87]

The Royal Commissioners' Report may not have resulted in any codifying legislation, but that does not mean it cast no influence upon the development of the copyright regime. Despite the lack of consensus surrounding the Report and its recommendations, Saint-Amour suggests that one of its legacies lies in the fact that, for many, "the 1878 Report demonstrated conclusively that the dominant conception of copyright was as inevitable as it was just, and that any attempt to curtail or abolish it was little more that a perverse ‘communistic' fantasy".[88] Augustine Birrell (1850-1933) provides him with good copy in this regard. Writing in 1899, he castigated the royalty system proposed by Farrer as a "preposterous scheme, which reeks of our adorable ‘Civil Service,'". Thankfully, Birrell continued, "[i]t was knocked on the head by Mr. Herbert Spencer, and other eminent men who gave evidence before the Copyright Commission".[89] With this observation, Birrell glosses over any sense of the significant dissent and disagreement amongst the Commissioners themselves. Farrer is not even referred to as having given evidence to the Commission. Instead, the royalty scheme is portrayed as one "begotten in the office of the Board of Trade some time in the early 'seventies".[90]

Similarly, when writers such as Copinger began to integrate the recommendations of the Report within their own commentaries upon the law of copyright, they did so without any reference to the fact that many of those recommendations did not receive the unanimous support of the Commissioners, and certainly without any attempt to address or even acknowledge the profound ideological discord that surfaced throughout the work of the Commission itself.[91] In this way, Saint-Amour argues, Copinger, Birrell, and others contributed to a process whereby the recommendations of the Report, and in particular its rejection of the royalty scheme as a viable alternative to the existing copyright regime, were imbued with "a perceived finality and unanimity" which in turn would shape subsequent copyright reform.[92]

Whatever role the subsequent commentary upon the Royal Commission's Report played in the ideological concretisation of the copyright regime, at the time the Report was issued, it seems clear that the work of the Commission had generated a debate that, for many, unsettled their existing preconceptions about the nature of copyright, its remit and purpose. At its most basic, the efforts of both Farrer and Mallet amounted to an attempt to encourage the legislature to approach and develop copyright policy and law primarily through the lens of the public interest, as opposed to that of the ‘natural' rights of the author. In addition, in proselytising the virtues of the royalty system, they also sought to distinguish and disentangle the interests of the author and the publisher within the context of the copyright ideology and doctrine. The weight of this challenge to the existing orthodoxy is perhaps best captured in a letter from Gladstone to Matthew Arnold (1822-1888) dated 5 April 1882. When the Prime Minister had spoken in the Commons of the fact that copyright was a subject "of very great and peculiar interest to me", he was perhaps reminiscing about the part he had played, in his early political career, in supporting Talfourd's efforts to revise and extend the law of copyright, which efforts eventually culminated in the passing of the Copyright Amendment Act 1842,[93] or of his role in shaping the mid-nineteenth century customs legislation to insulate the national publishing industry from foreign competition.[94] As Gladstone put it to Arnold, "I was an old & zealous supporter of Talfourd".[95] In the same letter, however, he continued:

"[B]ut I am shaken in my first opinions without having positively settled down upon others. Using the negative form of speech, as in this case the most convenient, I am not sure that the present form of law is the best for them [authors] any more than for the public; not sure that authors would not be better remunerated (also publishers who by contract take the place of authors) were it enacted, as a general rule, that after a start of a few months for the first publication, open publication should be permitted subject to Royalty. There is of course much in this that would require consideration..."

8. References

Government papers and legislation

Foreign Reprints Act, 1847, 10 & 11 Vict., c.95

British North America Act, 1867, 30 & 31 Vict., c.3

Copyright Act, 1868, 31 Vict., c.54 (Canada)

Copyright Act, 1875, 38 Vict. c.88 (Canada)

Canadian Copyright Act, 1875, 38 & 39 Vict. c.53

Copyright Act, 1911, 1 & 2 Geo.V, c.46

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

Correspondence and Papers on the Colonial Copyright Act 1847 (1872) Paper No.339, xliii, 277

Books and Articles

Bowker, R.R., Copyright, its History and its Law (Boston: Houghton Mifflin, 1912)

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

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

Feather, J., Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London, Mansell, 1994)

Graves, R.E., "Jenkins, John Edward (1838-1910)", Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online ed., Jan 2006, www.oxforddnb.com/view/article/34175

Lely, J.M., Copyright Law Reform: An Exposition of Lord Monkswell's Copyright Bill now before Parliament (London: Eyre and Spottiswoode, 1891)

Matthew, H.C.G., ed, The Gladstone Diaries, vol.X (1881-83) (Oxford: Clarendon Press, 1990)

Saint-Amour, Paul K., The Copywrights: Intellectual Property and the Literary Imagination (Ithaca and London: Cornell University Press, 2003)

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

Seville, C., The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006)

Williams, D., "Mallet, Sir Louis (1823-1890)", Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online edn, Jan 2006, www.oxforddnb.com/view/article/17889

[1] Foreign Reprints Act, 1847, 10 & 11 Vict., c.95; see: uk_1847.

[2] Board of Trade to Colonial Office, 27 July 1869, in Correspondence and Papers on the Colonial Copyright Act 1847 (1872) Paper No.339, XLIII.277, 27.

[3] C. Seville, The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006), 86-109.

[4] British North America Act, 1867, 30 & 31 Vict., c.3, s.91.

[5] As Seville notes, "[t]his power was to be of real importance in the increasingly confrontational exchanges on copyright between the Dominion and the Imperial Parliaments"; Seville, 90.

[6] Copyright Act, 1868, 31 Vict., c.54.

[7] For details see: Correspondence and Papers (1872), 16-17.

[8] Ibid., 16.

[9] Ibid., 21-22; see also: Seville, 91.

[10] See: uk_1847; uk_1886.

[11] For details see: Seville, 97-106.

[12] Copyright Act, 1875, 38 Vict. c.88.

[13] Canadian Copyright Act, 1875, 38 & 39 Vict. c.53.

[14] For the details of the way in which the legislation operated see Seville, 106-109.

[15] Copyright Act, 1875, s.22 provided as follows: "Should a work copyrighted in Canada become out of print, a complaint may be lodged by any person with the Minister of Agriculture, who, on the fact being ascertained to his satisfaction, shall notify the copyright owner of the complaint and of the fact; and if, within a reasonable time, no remedy is applied by such owner, the Minister of Agriculture may grant a license to any person to publish a new edition or to import the work, specifying the number of copies and the royalty to be paid on each to the copyright owner".

[16] In general see Seville, 86-109.

[17] Graves, R.E., "Jenkins, John Edward (1838-1910)", Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online ed., www.oxforddnb.com/view/article/34175, accessed 18 June 2007.

[18] Seville, 98.

[19] Quoted in Seville, 98.

[20] In particular the French government were unhappy about the manner in which the existing arrangement allowed British authors to make "fair imitations or adaptations" of French plays, in accordance with s.6 of the International Copyright Act, 1852, 15 & 16 Vict., c.12. As a consequence, the International Copyright Act, 1875, simply provided that s.6 of the earlier legislation could, by Order in Council, be disapplied. See also: Seville, 54-56; uk_1852.

[21] Hansard, 3^rd ser., 222 (1875): 235 (11 February 1875).

[22] On this Jenkins commented: "Again and again had this subject been brought under the notice of the Foreign Office, with special reference to the plunder of British authors by publishers in the United States of America. The United States had repeatedly beaten us in diplomacy by means of knowledge obtained from the brains of British authors, and yet American publishers were permitted year after year to continue this plunder, without any attempt being made on the part of the Foreign Secretary to get the injustice remedied"; ibid.

[23] The Times, 2 March 1875.

[24] Ibid.

[25] Joseph Hatton (1841-1907) edited the Gentleman's Magazine and the Illustrated Midland News; Blachard Jerrold (1826-1884) edited Lloyd's Weekly Newspaper, and William Allingham (1824-1889) edited Fraser's Magazine.

[26] The Times, 11 May 1875.

[27] Hansard, 3^rd ser., 224 (1875): 393.

[28] Ibid.

[29] Ibid.

[30] See: uk_1842.

[31] Hansard, 3^rd ser., 228 (1876): 64.

[32] The other Commissioners were: William Courtenay (1807-1888), the Earl of Devon; Charles Lawrence Young; Henry Holland (1825-1914); Sir Henry Wolff (1830-1908) formerly of the Foreign Office, and MP for Christchurch; and, Farrer Herschell (1837-1899), MP for Durham.

[33] Commission Report, v.

[34] For a list of witnesses, as well as the various papers that were submitted for the consideration of the Commissioners, see: Minutes of the Evidence (1878), iii-v.

[35] J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London, Mansell, 1994), 186-87.

[36] R. R. Bowker, Copyright, its History and its Law (Boston: Houghton Mifflin, 1912), 30; here Bowker was referring in particular to the Digest on Copyright Law, prepared by James Stephen, and appended to the Commissioner's main Report.

[37] Paul K. Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca and London: Cornell University Press, 2003), 55.

[38] They were: Earl of Devon; H.T. Holland; Julius Benedict; F. Herschell; and J.A. Froude.

[39] Saint-Amour, 54.

[40] Report, vii.

[41] Williams, D., "Mallet, Sir Louis (1823-1890)", Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), online edn, Jan. 2006, www.oxforddnb.com/view/article/17889, accessed 16 June 2007.

[42] Separate Report by Sir Louis Mallet, xlvi.

[43] Ibid., xlix, li.

[44] See also the evidence of Charles Trevelyan (1807-1886) (1-9), and Robert Macfie (1811-1893) (137-42).

[45] Minutes of Evidence, 209. He developed this observation, at a later stage, commenting: "I have been led to [my recommendations] by observing what a complete system of protection has been created in favour of the English publisher by our present law. Consider what the Legislature has done for him. He has, first, a law requiring publication in this country as a condition of English copyright; secondly, a law preventing publication elsewhere, even in the British colonies, from giving English or Imperial copyright; thirdly, a law enabling a foreign author publishing first or simultaneously in this country to obtain English copyright; fourthly, a law prohibiting the importation in to this country of English books published in foreign countries, even though the English author has copyright in them; fifthly, a law prohibiting the importation into this country of English books copyrighted by English authors in Canada. These, it will be observed are all in favour of the English publisher. How far they are needed for the protection of the English author may well be doubted. That they are injurious to the English reader there can be no doubt"; ibid., 210.

[46] Ibid., 203.

[47] Ibid., 208.

[48] Ibid., 209.

[49] Ibid., 274.

[50] This was in response to a question put to Farrer by Mallet; ibid., 267.

[51] Ibid., 210.

[52] Ibid., 268-69.

[53] Ibid., 272.

[54] Similarly, Mallet had stopped short of recommending the adoption of a royalty scheme on the basis that it could not be "safely attempted in the present state of public opinion on this subject"; he continued however that "the royalty system possesses so many advantages, ... it should be kept in view as the object of future reforms". Report, l.

[55] Report, ix.

[56] Feather, 187.

[57] Report, viii.

[58] Report, lviii.

[59] See for example the comments in his Separate Report upon the issue of international copyright protection: "I submit that the more correct proposition to lay down would be this: That it is policy as well as justice, if copyrights are recognised at all, to recognise them from whatever quarter they come. I would humbly suggest that Your Majesty should acknowledge and protect the rights of authors irrespectively of nationality, and without regard to the question of previous publication. The only condition should be that the author should register his book or other work in England before any English publisher has issued it"; Report, lviii-lix.

[60] Minutes of Evidence, 304.

[61] Report, lviii.

[62] Minutes of Evidence, 270.

[63] Report, xv.

[64] See: uk_1870.

[65] W.A. Copinger, The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870), 102.

[66] Ibid.

[67] Report, xvi.

[68] It was this Digest that the American publisher Richard Bowker described as "one of the most valuable contributions to the literature of copyright".

[69] See in particular his cross-examination of Farrer on 9 March, 1877; Minutes of Evidence, 261-65.

[70] Report, lvii.

[71] Stephen was not the only one to raise an objection to the Report's recommendations upon abridgment and dramatization rights. For example, in relation to the dramatization of novels, Sir Charles Young commented: "I do not see why a novelist should have an absolute right of preventing his fiction being presented to the public in a dramatic form ... and therefore I venture to suggest that at the expiration of five years from the date of registration of a work of fiction, it should be open to any dramatic author to take such work (if not already dramatised by the novelist, or with his consent) and adapt it for representation on the stage, on the condition of his paying a percentage of the profits to the original author"; ibid., xiv.

[72] See for example: the Note appended to the signature of Sir Charles L Young (xlv); the Separate Report by Sir Louis Mallet (xlvi); and Sir John Rose's Note (lvii).

[73] See for example: the Separate Report by Sir Louis Mallet (xlvi); Separate Report by Mr Edward Jenkins (lviii); Dissent from the Report ... by Mr Anthony Trollope (lix); Note appended to the signature of Mr F.R. Daldy (lx).

[74] See for example: the Dissent from the Report of the Commissioners, relative to the Registration of Copyright (xlv).

[75] See for example: the Separate Report by Sir John Rose (xlv); the Separate Report by Sir H Drummond Wolff (xlvi); and the Separate Report by Sir Louis Mallet (xlvi).

[76] See for example: Separate Report by Mr Edward Jenkins (lviii).

[77] To ensure "English literature at cheap prices for colonial readers", the Report did recommend the introduction of a royalty scheme, but only in relation to the colonies, and only under certain limited circumstances: "In proposing the introduction of a licensing system, it is not intended to interfere with the power now possessed by Colonial Legislatures of dealing with the subject of copyright, so far as the colonies are concerned. We recommend that in case the owner of a copyright work should not avail himself of the provisions of the copyright law (if any) in a colony, and in case no adequate provision be made by re-publication in the colony or otherwise, within a reasonable time after publication elsewhere, for a supply of the work for general sale and circulation in the colony, a license may, upon an application, be granted to re-publish the work in the colony, subject to a royalty in favour of the copyright owner of not less than a specified sum per cent. on the retail price, as may be settled by any local law. Effective provision for the due collection and transmission to the copyright owner of such royalty should be made by such law". Any reprint editions, whether imported into the colonies under the 1847 Act, or printed therein in accordance with the proposed licensing scheme, were, as was the case under the Canadian Copyright Act, 1875, excluded from the British market; Report, xxxiii, xxxv.

[78] Journal of the House of Commons (CJ), 134: 15; they were to be assisted by a Mr. Dillwyn and a Mr. Forsyth.

[79] Hansard, 3^rd ser., 243 (1878-79): 1308.

[80] Ibid.

[81] It did however depart from some of the recommendations of the Report; one example of this concerned the library deposit requirement. Whereas the Report had recommended that the copyright libraries should no longer be able to acquire the books without paying for them, Lord Manners' Bill nevertheless retained the library deposit provision as had been the case with the existing copyright regime.

[82] John Lely, a barrister, subsequently commented on the failure of the Manners' Bill in the following terms: "[The Bill] was read a first time on the 29th July 1879, just before the recess. The dissolution of Parliament early in 1880, and the changes of Government which followed the general election of that year, naturally cut short the fortunes of thise measure, but happily not before it had been printed"; J.M. Lely, Copyright Law Reform: An Exposition of Lord Monkswell's Copyright Bill now before Parliament (London: Eyre and Spottiswoode, 1891), 79.

[83] Hansard, 3^rd ser., 252 (1880): 769-70.

[84] See in general, Seville: 275-78.

[85] For a summary, see: Lely, 79-82.

[86] See: uk_1886.

[87] Copyright Act, 1911, 1 & 2 Geo.V, c.46.

[88] Saint-Amour, 54.

[89] Birrell, 207.

[90] Ibid.

[91] Copinger, The Law of Copyright, 2^nd ed, (London: Stevens and Haynes, 1881), 62, 80-81, 109, 325, 341-42, 386, 396, 406-408, 491-92, 501-506. One of the few writers to acknowledge the reality of the disagreement amongst the Commissioners was Lely, who, in his treatise on copyright law reform, while suggesting that "[t]he Commissioners may be said to have been practically unanimous" in their recommendations, did nevertheless, acknowledge and reproduce "Sir Louis Mallet's dissentient Report"; Lely, Preface, 20.

[92] Saint-Amour, 55. The Report was certainly influential in shaping Lord Monkswell's (1845-1909) unsuccessful attempt to consolidate and reform the law of copyright in 1891. As Lely notes, in his commentary on Lord Monkswell's Bill, the amendments to the existing copyright regime were "for the most part, but not entirely, those suggested by a Royal Commission which reported in 1878"; Lely, 10.

[93] See for example: C. Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 163-75. See also: uk_1842.

[94] See: uk_1844.

[95] Gladstone to Matthew Arnold, 5 April 1882, in H.C.G. Matthew, ed, The Gladstone Diaries, vol.X (1881-83) (Oxford: Clarendon Press, 1990), 231.