1709 Blog: for all the copyright community

Friday, 24 October 2014

Donaldson v Becket(t): revising the revisionists?

H. Tomás Gómez-Arostegui (Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Associate Professor of Law, Lewis & Clark Law School, Portland, Oregon) has recently sent me a copy of an article that he thought might be of interest: "Copyright at Common Law in 1774", 47 Conn. L. Rev. 1 (2014). This article takes a look at one of the seminal pieces of English litigation on common law copyright: Donaldson v Becket(t). According to the abstract:
As we approach Congress’s upcoming re-examination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace of Anglo-American copyright. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we must return to the orthodox view.
The article also contains information regarding, more generally, appellate procedure in the House of Lords and the publication of appeals, particularly in newspapers and periodicals. Tomás also includes an appendix that traces the numerous newspapers and periodicals that published material on Donaldson v. Beckett.

I welcome this approach, having sometimes been faced with revisionist propositions that seemed to me to be so far from my recollection of old cases that I have had to return to the original sources in order to reassure myself that my memory was not at fault.

You can read this article via SSRN here.

There's also a spot of further background reading in a very much shorter piece which I wrote several lifetimes ago, noted in "Past historic 5: common law copyright in England".

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