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Pre-Copyright Rights Carl W Notre Dame Law Review Volume 14 | Issue 4 Article 3 5-1-1939 Pre-Copyright Rights Carl W. Doozan Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Carl W. Doozan, Pre-Copyright Rights, 14 Notre Dame L. Rev. 391 (1939). Available at: http://scholarship.law.nd.edu/ndlr/vol14/iss4/3 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. PRE-COPYRIGHT RIGHTS To occupy himself during his spare moments a prominent citizen wrote a small biographichl sketch of a famous old character in the community and upon completion passed around the manuscript to a few close friends. An editor of a local" publication gained possession of the manuscript and without permission published the article. Immediately, the question arose, what are the author's rights? The work of course was not copyrighted. In that event he has no rights, you say? Well, perhaps - but be not too hasty in your reply. Copyright law, like the Constitution is a topic which makes fine conversational material among intelligent men, but con- cerning which very few have actual first hand information - surprisingly so, in view of the fact that copyright concerns almost exclusively intelligent men and women. Artists, pro- fessors, musicians, photographers are only a few of those affected by these laws and who should be vitally interested in knowing what their rights are. Most men whether they are teachers, lawyers, doctors, business men or football coaches get an urge to write something sometime during their.'lives: the teacher dreams of revising the old textbook, the lawyer ponders upon history and philosophy, the doctor debunks mother's favorite cold cures, the business man publishes his memoirs, and the football coach blesses the gamblers with his sure-fire predictions. Yet ignorance is high among such learned men in respect to their literary rights. Paradoxically, this article will concern itself not with the author's rights and remedies under a copyright, but rather with those rights he possesses before a copyright has been secured. The Constitution of the United States gives Con- gress the power, "To promote the progress of science and useful arts, by securing for limited times, to authors and in- ventors, the exclusive right to their respective writings and NOTRE DAME LAWYER discoveries." I Pursuant to this power Congress enacted in 1790, its first Copyright Act which has from time to time been amended, revised, or added to. In.the present act the following provision is found: "Nothing in this title shall be construed to annul or limit the right of the author or pro- prietor of an unpublished work, at common law or in equity to prevent the copying, publication, or use of such unpub- lished work without his consent, and to obtain damages therefor." - These common-law rights referred to in this copyright act constitutes the nucleus of this article. In order to fully comprehend these common-law rights a cursory investigation into the origin and history of literary property would be apropos. The historical account of literary rights and its development through the sixteenth, seven- teenth, and first half of the eighteenth centuries are gleaned from the discussions of the judges in Millar v. Taylor ' and which are reviewed in the dissenting opinion of Justice Thompson in Wheaton v. Peters,4 the latter being the land- mark case on copyright law in the United States. Prior to 1640, historians generally concede, the crown exercised un- limited authority over the publication of literary works. This control was effectuated through the organization of the Stationers' Company whose purpose Was to regulate the printing of books and articles. It possessed the power of search, confiscation, and imprisonment, its rulings enforced under the jurisdiction of the Star-Chamber. To determine then whether any copyright or property right existed in the author based upon some principle, usage or custom, it is necessary to look into the operation of the Stationers' Com- pany, the Star-Chamber or into the Acts of State. A reading of the decrees of the Star-Chamber makes it evident that property rights of authors were recognized, for that tribunal often issued decrees forbidding the printing of books with- I U. S. Constitution, Art. 1, Sec. 8, CI. 8. 2 17 U. S. C. A. § 2. 3 4 Burr. 2303, 98 Eng. Rep. 201 (176Q). 4 33 U. S. 591, 8 L. Ed. 1055 (1834). PRE-COPYRIGHT RIGHTS out the consent of the owners. This prohibition must have been based upon one of these two rights: either upon a grant given by the crown or upon a common law right. The judges in Millar v. Taylor were certain that it could not be a pri- vate right coming as a grant from the crown since that would be beyond his power; therefore they concluded that the de- cisions of the Star-Chamber must have been predicated up- on principles of natural justice, equity, and public con- venience. Certainly no act of state could be found which gave authors any literary rights, but the Star-Chamber, neverthe- less, meted out punishments and fines for unauthorized printings. In lieu of these actions the only logical conclu- sion could be that some property right existed in the author. In 1640, the Star-Chamber was abolished, but the rights of authors were still protected to a certain degree by the Stationers' Company. Due to widespread pirating of litera- ture, however, Parliament enacted various ordinances pro- hibiting the printing of literary works without the author's consent,, and among' those passed one provided that the au- thor was entitled to one half of the fine exacted from the wrongdoer. Such contribution clearly recognized a property right in the author or his assigns. Following this, in 1710, Parliament enacted the Statute of Anne ' which was entitled: "An act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies, during the .times therein mentioned." Millar v. -Pay- lor was th& first important case decided after the passage of this Act. The suit was brought by an assignee of the au- thor of the book, The Seasons. The author sold all his rights and interest to the plaintiff who then began to print the book. The defendant is alleged to have encroached upon the assignee's rights by printing and selling copies of the book without the consent of the plaintiff. Since prior to the bring- ing of the action the period of years granted by the Statute of Anne had expired the plaintiff's case had to rest upon the 8 Anne c. 19 (1710). NOTRE DAME LAWYER theory that 'ome rights existed outside those given by the Statute. The questions therefore before the King's Bench were: first, whether the copy of a book, or literary composi- tion, belonged to the author under the common law, and second, if the first be true, whether the common-law rights of authors were taken away by the Statute. By a vote of three to one the court decided that the author did have com- mon-law rights which were not impaired by the Statute of Anne. These questions were soon envolved once more in Donaldson v. Beckett,' this time before the House of Lords. Here eleven judges expressed their opinions upon the ques- tions raised. The majority determined that the author at common law had the right of first printing and publication for sale and could maintain an action against anyone who infringed upon that right, that the law did not take away such rights upon publication of the work but that the au- thor's common-law rights were perpetual. But, however, in a six-five decision the court held that the Statute of Anne took away that perpetual right and left the author to his remedy under the Statute for the period of protection limited there- in, after which he was forever barred from any further rights. Thus stood the law of England at the time the question came up in the United States. In this country the rights of an author came up for review for the first time in 1834 in the case entitled Wheaton v. Peters.7 Wheaton as the reporter for the Supreme Court of the United States was able to obtain the opinions of the judges in United States Supreme Court cases. Attempting to copyright these reports he made certain deposits and no- tices required by the act, but failed to comply with all of the requisites. For consideration he assigned his rights to one Coney who in turn assigned to the plaintiff, Donaldson. Peters, succeeding Wheaton as reporter, and his publisher, Griggs, published without consent these reports unaltered 6 4 Burr. 2408, 1 Eng. Rep. 837 (1774). 7 33 U. S. 591, 8 L. Ed. 1055 (1834). PRE-COPYRIGHT RIGHTS along with his own. The plaintiffs contended that the requi- sites set forth in the Copyright Act were merely directory and not mandatory, and further stated that though mandatory, they would be entitled to relief under their common-law rights independently of the Act. The defendants' conten- tion, sustained by the majority of the court, was that the only rights which the plaintiffs might have had were under the statute but that these*were lost through plaintiffs' failure to comply with the requirements. The majority's opinion con- sisted of the following arguments.
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