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Jeffreys v. Boosey (1854)

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Primary Sources on Copyright (1450-1900)

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Identifier: uk_1854

 

Commentary on Jeffreys v. Boosey (1854)

Ronan Deazley

School of Law, University of Birmingham, UK

 

Please cite as:
Deazley, R. (2008) ‘Commentary on Jeffreys v. Boosey (1854)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

 

1. Full title

2. Abstract

3. Copyright in Britain and the work of Foreign Authors

4. D'Almaine v. Boosey: Protection for Foreign Authors

5. International Copyright Protection in Parliament

6. The Issue Continues in the Courts

7. D'Almaine Under Threat

8. Boosey v. Jeffreys (1851): Protection Regained

9. Jeffreys v. Boosey (1854): The Decision Reversed

10. Jeffreys and Copyright at Common Law: Judicial Opinions

11. Jeffreys and Copyright at Common Law: Discussion in the Lords

12. After Jeffreys

13. Jeffreys and International Copyright Relations

14. References

 

1. Full title

Jeffreys v. Boosey (1854) 4 HLC 815

 

2. Abstract

The second decision of the House of Lords to consider the nature of copyright law. As was the case in Donaldson v. Becket (1774) (uk_1774) the law lords were in disagreement with the majority of common law judges invited to speak to the issue for the consideration of the House. In the course of their opinions, two of the law lords (Lord Brougham and Lord St Leonards) explicitly reject the concept of copyright at common law. Rather than a natural authorial property right, they present copyright as a purely statutory phenomenon specifically grounded in public interest concerns. Ultimately, the Lords decided that a foreign national, resident abroad, but first publishing in Britain, enjoys no protection in his work under British copyright law.

 

3. Copyright in Britain and the work of Foreign Authors

In the early eighteenth century the copyright issue that roused most attention and debate was the library deposit requirement set out, initially within the Licensing Act 1662, and consolidated within both the Statute of Anne 1710 and the Copyright Act 1814.[1] By comparison with developments throughout the remainder of the nineteenth century, the brou-ha-ha that erupted over the policy of library deposit would seem a relatively insular and parochial affair. By the start of the second quarter of the century, questions as to the interplay between national copyright regimes as well as the perceived need for an international system of copyright protection began to dominate the legal landscape - certainly as regards the interests of the book trade. At this particular time it was obvious that the work of British authors received no protection overseas (apart from, that is, within the British dominions);[2] the issue however as to whether and under what circumstances foreign authors might be protected within Britain was not so clear. That issue first arose before the courts.

 

In Clementi v. Walker (1824) the German-born French pianist Friedrich Kalkbrenner (1785-1849) had composed a popular air entitled Viva Henri Quatre the rights to which he sold in France in June 1814 while at the same time reserving to himself the right of publication in England; this he sold to the plaintiffs in July of the same year.[3] The initial agreement with the plaintiffs however was an oral one only and was not set out in writing until 1822. In the interim the defendant, having purchased a copy of the music in Paris, published it in December 1818. Upon the basis that the oral agreement in 1814 did not amount to an assignment of the copyright in the work to the plaintiffs,[4] the question for the court was whether the publication by the defendant in 1818 amounted to an infringement of anyone's rights? Put differently, could an author whose work was first published abroad prevent someone from reproducing the work in Britain? Counsel for the defendant stressed the role of the copyright statutes in encouraging "British industry and capital", a strategy which obviously struck a chord with Bayley J (1763-1841) who presided over the case:

 

[T]he Legislature must be supposed to have legislated with a view to British interests and the advancement of British learning. By confining the privilege to British printing, British capital, workmen and materials would be employed, and the work would be within the reach of the British public. By extending the privilege to foreign printing, the employment of British capital, workmen, and materials might be suspended, and the work might never find its way to the British public. Without very clear words, therefore, to shew an intention to extend the privilege to foreign publications, I should think [the Statute of Anne] must be confined to books printed in this kingdom ... To hold to the contrary would discourage British enterprise, and stop avenues to British knowledge.[5]

 

This line was followed in Delondre v. Shaw (1828) in which Shadwell VC (1779-1850) simply observed that "[t]he Court does not protect the copyright of a foreigner",[6] and Guichard v. Mori (1831) in which Lord Chancellor Brougham (1778-1868), drawing upon Bayley J's theme on the "avenues to British knowledge", observed:

 

[I]t is sufficient to say that the legislature encourages the importation of foreign works; it wishes to keep open the avenues of knowledge; and an author beyond the sea who desires to secure any privilege here, either to himself or any one to take under him, should publish here immediately ... Could he come forward several years after publication abroad, and treat an intermediate publication in this country as a piracy, many foreign works would never be published amongst us at all.[7]

 

4. D'Almaine v. Boosey: Protection for Foreign Authors

In both Clementi and Guichard the works in question had been first published abroad; in D'Almaine v. Boosey (1835) the situation was different.[8] The composer Daniel François Esprit Auber (1782-1871) wrote the music for an opera, Lestocq, first performed in Paris in May 1834, and sold the rights to publish the music in Britain to D'Almaine who registered and published the work in June of that year. Auber however had also assigned the right to publish the work on the continent to a French publisher and, while there was some disagreement as to when he first published his edition of the work, it appears not to have been released in France until July, a few weeks after D'Almaine's edition appeared in London. Twiss for the plaintiff argued simply that "[c]opyright exists at common law, and the power to transfer such a right is recognized by the statute of Anne" - the assignment of the work to his client was then "valid at common law, if not under the act of Parliament".[9] Beames and Wood, for the defendant, relied upon Delondre in which case they suggested "there is an express decision on the subject. In that case one of the grounds of the Vice Chancellor's judgment was, that a foreigner can have no copyright which a Court of equity will protect". Abinger CB (1769-1844) intervened:

 

What has that case to do with copyright? The substantial ground for the relief was, that the property of the plaintiff was injured by the sale of a spurious article by another party. Am I to understand that, if a foreigner residing here were to invent and publish a work, and enter it at Stationers' Hall, he would have no property in that work?[10]

 

Counsel replied: "The present is not that case; but it is difficult to say that a foreigner so circumstanced would have any such property, for the object of the act was solely to encourage British skill and industry".[11] Lord Abinger disagreed with the defendant's reading of both Delondre and the legislation.

 

I have been struck with the authorities [that is, Delondre] produced on behalf of the defendant, and if the Vice Chancellor had decided expressly that a foreigner, quà foreigner, had no protection in England in regard to copyright, I confess I should have doubted the correctness of that decision; ... But the case which has been cited upon the subject does not got to that length; it is in principle not quite intelligible, but there was a clear ground for an injunction independent of the question of copyright. Besides, that was a case where one of the parties resided abroad; and all the Vice Chancellor said was, that the publisher of a work at Paris could not protect himself in a Court of justice in England.[12]

 

The question, Lord Abinger continued, had in fact been settled nearly fifty years earlier in Bach v. Longman (1777) which, although an action concerning the question of whether music could be considered to be "writing" within the Statute of Anne, nevertheless involved a plaintiff who was German born.[13]

 

5. International Copyright Protection in Parliament

At the time that D'Almaine was decided, the question of what protection foreign authors might receive in Britain (as well as what protection British authors might enjoy abroad), had also begun to attract the attention of the legislature.[14] In the early to mid-1830s a number of continental publishers and booksellers (primarily French) had begun to specialise in English language texts, which editions were infiltrating the British market. In December 1837, Edward Bulwer-Lytton (1803-1873) observed in the Commons that "[a]s soon as a book was published the press of France reprinted it at one-fifth the original price, and the country thus became deluged with foreign piracies", and continued that "the Government ought to take steps to prevent such occurrences".[15] Poulett Thomson (1799-1841), then President of the Board of Trade, in response informed the House that the government was already engaged in "considerable negotiations going forward on the subject", and that he would, in the new year, introduce a measure which would, he hoped, result in establishing with a number of countries "a reciprocity of interest with respect to copyrights".[16] Three months later, on 20 March, Poulett Thomson sought leave to bring in the International Copyright Bill which was designed "simply to give to foreigners for their works in this country that protection with regard to copyright which English authors in return might be enabled to obtain for their works in foreign countries".[17] Many of the European States, and America, he explained, had recently turned their attention to this very subject:

 

In France and Germany commissioners had been appointed upon the law of copyright, and in the United States a committee of inquiry. The commissioners in France and Germany said, that they felt the inconvenience arising from the publication of their works in other countries, but that while they sought to protect their own authors, they should also afford protection to foreign authors. Therefore, in order to obtain protection for ourselves abroad, it was necessary to hold out the prospect of protection in this country to the authors of other countries.[18]

 

It was not possible he continued "to pass one general law, based upon the principle of our own law of copyright" to achieve such ends, as "the law of copyright varied so much in different countries".[19] Instead, the government proposed a Bill that would enable the Crown to negotiate and develop a series of bilateral copyright agreements, by way of Order in Council, with those countries willing to provide reciprocal protection. Four months later the International Copyright Act 1838 was passed to this end.[20] The 1838 Act, which proved largely ineffective, was followed six years later by the International Copyright Act 1844,[21] and then again by the International Copyright Act 1852, which final provision was introduced onto the statute book to give effect to the Anglo-French Copyright Convention that had been agreed in November 1851.[22]

 

6. The Issue Continues in the Courts

In addition to this parliamentary attention, the issue as to what rights a foreign author or composer enjoyed within Britain continued to be debated before the courts, which discussion took place within the larger theoretical context as to how best to understand copyright - whether as a natural common law right, or a purely statutory phenomenon (or a combination of both). Chappell v. Purday (1841) involved an allegation of infringement in the overture to the opera Fra Diavolo, again by Auber, which had been completed and first performed in Paris prior to an assignment to the plaintiff of the right to publish the work in England. In the first instance an injunction was granted which Purday sought to have dissolved.[23] It transpired however that while Chappell had purchased the work in 1830 no assignment in writing was actually executed until June 1836,[24] during which time other booksellers had apparently imported and sold copies of the work without any objection on Chappell's part. Without prejudicing the plaintiff's right to pursue the claim at common law, Abinger CB dissolved the injunction,[25] but given that the issue of copyright in works by foreign authors had been raised, he took the opportunity to "address a few words to that question", and to both Millar v. Taylor (1769) and Donaldson v. Becket (1774) in particular.[26]

 

[W]hen I came to the profession I took a great interest in the case of Millar v. Taylor, and other cases of that sort. In that case Lord Mansfield and two of the judges differed from Mr. Justice Yates, and I own I think that to the material parts of Mr. Justice Yates's argument Lord Mansfield made a successful reply ... Lord Mansfield said, - "That the reasons for supporting the author's right before publication were equally applicable after publication;" and I think that was a successful reply.[27]

 

As for Donaldson, he noted that eight of the judges involved agreed with Lord Mansfield's position and "[t]hat being the case, the law was then settled as regarded the common law right".[28]

 

Chappell did indeed bring the case at common law but by the time it came on to be heard, Abinger CB had been succeeded by Pollock CB (1783-1870) (in April 1844). Unfortunately for Chappell, the new Chief Baron's opinions on the question of copyright at common law were somewhat different from those of the former. In a passage that is useful to set out in full, Pollock CB observed:

 

Two questions of importance were raised in the course of the argument. The first is, whether, at common law, a foreigner, residing abroad, and composing a work, has a copyright in England ...

Upon the first question we do not feel any difficulty; and we are of the opinion that a foreign author, residing abroad, and publishing a work there, has not by the common law of England any copyright here.

A copyright is the exclusive right of multiplying copies of an original work or composition, and consequently preventing others from so doing. The general question, whether there was such a right at common law, was elaborately discussed in the great cases of Millar v. Taylor and Donaldson v. Beckett. In Millar v. Taylor, it was decided by Lord Mansfield, Mr. Justice Aston, and Mr. Justice Willes, that at common law such a right existed, and the judgment was given for the plaintiff; and in Donaldson v. Beckett, which was an injunction founded upon the judgment in Millar v. Taylor, the majority of the judges held that such a common-law right existed; but the majority also held that it was taken away by the statute of Anne. We are, however, all of opinion that no such right exists in a foreigner at the common law, but that it is the creature of the municipal law of each country, and that in England it is altogether governed by the statutes which have been passed to create and regulate it, as in France it must be governed by the law of that country; but such a law has no extraterritorial power, and cannot be enforced beyond the limits of the state.[29]

 

Having dispensed with the argument at common law, Pollock CB proceeded to consider whether a foreign author had any right under the existing statutory regime. On this point he was unequivocal noting that the statutes were passed "for the encouragement of learning and the arts, by ensuring to authors, artists, and inventors, the reward of their labours", but continuing that "prima facie it must be intended that a British Legislature means only to protect British subjects, and to foster and encourage British industry and talent".[30] The court concluded:

 

Upon the whole, then, we think it doubtful whether a foreigner not resident here can have an English copyright at all; and we think he certainly cannot, if he has first published his work abroad before any publication in England ... that as the publication in Paris, by the composer or his assignee there, prevents a copyright from being acquired under the statutes, and there being no right at common law, or under the statutes, the rule for a nonsuit must be made absolute.[31]

 

At first blush there does appear to be some ambiguity about Pollock CB's position on the common law right. At times his observations do seem to suggest that his judgment does no more than explore what rights foreign authors alone did or did not have ("that no such right exists in a foreigner at common law"),[32] rather than calling into question the existence of the right for national authors also ("in England [copyright] is altogether governed by the statutes which have been passed to create and regulate it").[33] However given the position he would later adopt in Jeffreys v. Boosey (1854), any ambiguity must be dismissed in favour of the latter interpretation; put simply, Pollock CB did not consider a common law right existed no matter who the author and regardless of either Millar or what the majority of the common law judges had said in Donaldson.

 

7. D'Almaine Under Threat

Regardless of Pollock CB's observations in Chappell (1845), on the face of it the decision did not seem to compromise the ability of aggrieved litigants to seek relief in the courts whenever the work by the foreign author was first published in England, or published simultaneously in England and abroad,[34] in which cases the protection claimed seemed to fall squarely within the statute. That even these works by foreign authors should receive protection however was soon to be called into question, again by Pollock CB, in Boosey v. Purday (1849),[35] which concerned the publication of extracts from La Sonnambula (or, The Sleepwalker), an opera by the Italian composer Vincenzo Bellini (1801-1835). In Milan in February 1831, Bellini had assigned his rights in the work to the Italian music publisher Giovanni Ricordi, who, while in London, subsequently sold the right to publish the work within Great Britain to Boosey.[36] In their pleadings, both counsel debated not just the correct interpretation of the statutes, but also the existence (or not) of the common law right - there was a clear inconsistency between the positions of Abinger CB and Pollock CB which called for resolution. Counsel for Boosey referred to the "doctrine of exclusive property prior to publication", suggesting that "[c]opyright existed at common law, and the statute of Anne was in affirmance of, though it controlled the common law right", referring in support of the argument to Millar and Beckford v. Hood,[37] but not Donaldson. "Such being the true foundation of copyright" they continued "it follows, that the right must exist as well in a foreigner as a native".[38] The defendant's counsel did refer to the fact that the perception that Millar settled the issue of the common law right was "not strictly correct", however he dismissed the relevancy of the issue given that, in any case, "the common law right never applied to a foreigner".[39] Not surprisingly Pollock CB resolved the conundrum in his own favour. Rejecting that any foreigner could have copyright in England by the common law, as a result of which neither could the plaintiff,[40] he continued that a proper construction of the statutes must bear in mind that they were "intended for the encouragement of British talent and industry, by giving to British authors, or their assigns, a monopoly in their literary works", and that the object of the legislature was "to promote the cultivation of the intellect of its own subjects, and, as the Act of Anne expressly states ‘to encourage learned men to compose and write useful books'". As a result the court declared that "a foreigner, by sending to and first publishing his work in Great Britain, acquires no copyright".[41]

 

8. Boosey v. Jeffreys (1851): Protection Regained

Less than a year later Boosey was again contesting his copyright in La Sonnambula, this time complaining of an infringement by Jeffreys. Rolfe B (1790-1868), who had been sitting with Pollock CB in Boosey (1849), directed the jury that the plaintiff had no claim to an exclusive copyright in the work under the Statute of Anne; as a result they found for the defendant; Boosey appealed.[42] The appeal, upon a writ of error, alleged that Rolfe J's direction to the jury had been incorrect, and as a consequence the case was argued before seven of the common law judges: Campbell CJ (1799-1861), Patteson (1790-1861), Maule (1788-1858), Wightman (1785-1863), Cresswell (1793-1863), Erle (1793-1880), and Williams (1797-1875) JJ - that is, almost all of the judges who had not been involved in Boosey (1849).[43] Three days later the opinion of the court was handed down by Campbell CJ alone.[44] Deciding that Rolfe B's original direction to the jury had been incorrect and that Boosey did in fact hold the copyright in the work, Campbell CJ remarked:

 

The first question discussed before us was, whether authors have a copyright in their works at common law. This is not essential for our determination of the present case. If it were, we are strongly inclined to agree with Lord Mansfield and the great majority of the Judges, who, in Millar v. Taylor and Donaldson v. Becket, declared themselves to be in favour of the common-law right of authors. But we rest our judgment on the statutes respecting literary property, which we clearly think entitle the plaintiff to maintain this action upon the evidence which he adduced at the trial.[45]

 

Considering the statutes, even if one accepted that the legislature "looked only to the enlightenment of the kingdom", Campbell CJ rejected Pollock CB's analysis: "[M]ay it not be highly for the encouragement of learning in this country, that foreigners should be induced to send their works composed abroad, either in English or in a foreign language, to be first published in London?" He continued: "[W]e may without impropriety observe, that it has been the uniform policy of Parliament to facilitate the importation of foreign literature".[46] In any case, it is clear that Campbell CJ's reading of the policy behind the legislation extended beyond this singular function of the enlightenment of the kingdom - the Acts were passed ‘for the protection of literary property':

 

The right which [an author] has in England is the right of acquiring, upon certain conditions, a monopoly in England for a certain number of years in the sale of his work. But this right, which, though incorporeal, is in the nature of personal property, [the author] carries along with him wherever he is, and all that is to be done fully to enjoy it he can effectually do by another. Where then can be the necessity for [the author's] crossing from Calais to Dover, before giving directions for the publication of his work, and entering it at Stationers' Hall? The law of England will protect his property, and recognize all his rights, and give him redress for any wrong inflicted upon him within our territory, although he never set foot upon it.[47]

 

Jeffreys of course appealed, again on a writ of error, to the House of Lords; when Jeffreys v. Boosey was finally resolved, Rolfe B, now Lord Cranworth, was sitting in attendance as Lord Chancellor and Speaker of the House.[48]

 

9. Jeffreys v. Boosey (1854): The Decision Reversed

In Jeffreys the Lords overturned Campbell CJ's decision in holding that Ricordi, as the assignee of the copyright in a work by a foreign composer, in a foreign jurisdiction, had no rights under British law to pass onto Boosey; Rolfe B, now sitting in the House of Lords as Lord Chancellor Cranworth, saw his original direction reinstated. However he was not the only judge with a previous connection to this protracted litigation to be present during the appeal. As was the case in Donaldson, the common law judges were invited to give their opinions for the consideration of the peers before the House voted on the question at hand - in this case, should the decision of Campbell CJ and the Court of Exchequer be overturned or not? Of the ten who spoke to the issue, six had previously heard arguments as to the existence or not of the plaintiff's copyright in La Sonnambula: Pollock CJ and Parke B (1782-1868),[49] and Maule, Wightman, Erle and Williams JJ;[50] the others who spoke to the issue were Crompton (1797-1865) and Coleridge JJ (1790-1876), Alderson B (bap. 1787, d. 1857), and Jervis CJ (1802-1856).[51] After the judges, three peers spoke: the Lord Chancellor himself, Lord St Leonards (1781-1875),[52] and Lord Brougham, the three law lords who in effect carried out all the judicial business of the House at this time.[53] In summarising the judges' and peers' response to the question at hand, Jeffreys exhibits uncanny parallels with Donaldson. Of the ten judges who provided opinions, six agreed with Campbell CJ's ruling that the direction that Rolfe B had given to the initial jury had been incorrect (Crompton, Williams, Erle, Wightman, Maule, and Coleridge JJ). By contrast Lords Cranworth, Brougham and St Leonards were in agreement with the judges in the minority (Jervis CJ, Pollock CB, Alderson and Parke BB ) and, once again, it was this position which the House endorsed.[54] This is not to say however that the peers voted upon the issue in the same manner that they had in Donaldson. By the mid-nineteenth century the manner in which the Lords carried out its appellate jurisdiction was very different than it had been at the end of the previous century. Indeed since 1844 the lay peers had all but ceased to vote upon appeals to the House;[55] instead the Lords simply exercised its judicial capacity in accordance with the law lords' recommendation on any given issue.[56]

 

10. Jeffreys and Copyright at Common Law: Judicial Opinions

In Jeffreys the manner in which to read and understand Donaldson was brought to the fore, counsel for Boosey arguing the familiar point that the Statute of Anne was simply supplementary to the pre-existing common law copyright, and that, as "there [was] nothing in the terms of the statute which expressly limits the right to a British subject", Ricordi, and his assign Boosey, should by law be protected. Counsel for Jeffreys however countered that "the doctrine in the case of Donaldson" was that "no copyright in books existed at common law" and that the Act created new rights rather than operating to circumscribe a common law right.[57] Of those judges who would have held in the plaintiff's favour only Erle, Wightman and Coleridge JJ spoke directly to the issue of the common law right and the significance of the Donaldson decision.[58] Wightman J recounted that a majority of the judges in Donaldson had decided that "by the common law, an author of any literary composition had the sole right of first printing and publishing the same for sale", that this right was not lost upon publication of the work, but that "after publication, the right and the remedy for any infringement were regulated by the statute".[59] Thus he concluded, any author, including any alien, was possessed of the right to publish according to the common law of England.[60] Similarly, Coleridge J found Donaldson to be illustrative of the fact that "copyright for the author ... exists by the common law, [until] taken away by the statute of Anne, or some succeeding statute".[61] Erle J, however, was slightly more guarded in his interpretation of the case. Donaldson, he commented, had concluded that "the statute had restricted the right to the terms of years therein mentioned"; as to the question of copyright at common law, he felt that Donaldson had left the point "undecided", but nevertheless continued that numerous other authorities "decidedly preponderate in favour of copyright at common law".[62]

 

Providing a neat counterpoint to the comments of Erle, Wightman and Coleridge JJ, of those judges who spoke in favour of the defendant, three spoke expressly against the existence of the right.[63] Jervis CJ considered it "not necessary to decide in this case whether a British author had copyright at common law" but did concede that "the great majority of Judges ... in Millar ... and Donaldson ... declared themselves to be in favour" of the right. He continued however:

 

It is with extreme diffidence, therefore, that I express an opinion upon the subject, and declare that, in my judgment, a British author has not copyright at common law. I see nothing to distinguish the case of the author, as owner, of a book or manuscript from that of the inventor or owner of a complicated and highly useful machine.[64]

 

 

Not surprisingly neither Pollock CB nor Parke B deviated from their previous reading of the law in Boosey v. Purday (1849). While Parke B did not believe it "necessary to give an opinion" he was nevertheless of the mind that "the rational view of the subject is most clearly against the existence of this right", proceeding that "the weight of authority, taking into consideration the opinions expressed since the decision of the great cases of Millar ... and Donaldson ... is likewise against it".[65] In this regard he drew upon the opinion of Lord Ellenborough (1750-1818) in University of Cambridge v. Bryer (1812) [66] and the more recent decision of the US Supreme Court in Wheaton v. Peters (1834).[67] Similarly Pollock CB observed "that the weight of mere authority, including the eminent persons who have expressed an opinion on the subject since the case of Millar v. Taylor was argued, is very much against the doctrine of a copyright existing at Common Law".[68]

 

11. Jeffreys and Copyright at Common Law: Discussion in the Lords

The judges had delivered their opinions for the consideration of the House on 29 June. When Lords Cranworth, Brougham and St Leonards spoke to the issue they did so over a month later, on 1 August. Of these three only Lord Brougham directly addressed the decision in Donaldson. He began as follows:

 

In coming to a decision on this case, it is not necessary to assume that the much-vexed question of common-law right to literary property has been disposed of either way. Yet as a strong inclination of opinion has been manifested upon it, as that leaning seems to pervade and influence some of the reasons of the learned Judges, and as the determination of it throws a useful light upon the subject now before us, I am unwilling to shrink away from expressing my opinion on the question, the more especially as I am aware that it does not coincide with the impressions which generally prevail, at least, out of the profession.[69]

 

As for Donaldson in particular Lord Brougham noted that the House of Lords at that time had reversed the decree under appeal, however, like Erle J before him, he continued that "upon the general question of literary property at common law no judgment whatever was pronounced".[70] Leaving Donaldson to one side, as to the existence of the common law right in the abstract, if Cranworth LC remained the most tentative of the peers upon the issue,[71] Brougham was the most strident in his rejection of the notion. Given Brougham's earlier parliamentary opposition to Sergeant Talfourd's (1795-1854) efforts between 1837 and 1842 to reform the law of copyright,[72] and the position he had previously espoused in Guichard v. Mori, this should not surprise. Castigating those who argued in support of the right as relying upon "somewhat speculative, perhaps enthusiastic, views" and as having been "led away from strict, and especially from legal, reasoning into rather declamatory courses", he continued that an author:

 

[H]as the undisputed right to his manuscript; he may withhold or he may communicate it, and, communicating, he may limit the number of persons to whom it is imparted, and impose such restrictions as he pleases upon their use of it. ... But if he makes his composition public, can he retain the exclusive right which he had before? ... Has he such a property in his composition as extends universally and en[d]ures perpetually, the property continuing in him wheresoever and whensoever that composition may be found to exist? In other words, can his thoughts, or the results of his mental labour, or the produce of his genius, be considered as something fixed and defined, which belongs to him exclusively at all times and in all places?[73]

 

Lord Brougham considered that the author's (or indeed the composer's) thoughts could not be so defined:

 

That which was before incapable of being dealt with as property by the common law, became clothed by the lawgiver's acts with the qualities of property; and thus the same authority of the law giver, but exercised righteously and wisely for a legitimate and beneficent purpose, gave to the produce of literary labour that protection which the common law refused it, ignorant of its existence; and this protection is, therefore, in my opinion, the mere creature of legislative enactment.[74]

 

As for Lord St Leonards he appears, at first glance, to implicitly concede the existence of the common law right, beginning as he does with the admission that "no common law right exists after publication" (the implication being that before publication a common law right did exist). However his observation has to be read in the context of the distinction that he, and the other Lords,[75] had drawn between an author's "right to his manuscript and to any copy which he may choose to make of it, as his property, just like any other personal chattel" and "the right to multiply copies to the exclusion of every other person". "Nothing" he considered ‘can be more distinct than these two things". The property in an author's manuscript, as an item of tangible personal property, was one thing; the claim to copyright on the other hand was "a totally different thing".[76] Lord St Leonards, in observing that no common law right exists after publication, was referring to the existence of a common law right of property in the manuscript (the paper), and not a common law copyright residing with the author.[77]

 

When Charles Clark produced his Digest of House of Lords Reports in 1866 he noted in the Index that "[c]opyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect", and that "[p]er Lords Brougham and St. Leonards: Copyright did not exist at common law. It is the creature of statute".[78] Whatever ambiguities surrounded the decision in Donaldson, the position of the Lords in general, and of the law lords in particular, in Jeffreys is much more readily ascertainable. Indeed when a report of the decision appeared in the Law Magazine in February 1855 its writer noted that "[t]he question whether copyright existed at common law has long been regarded as a moot point by the Bench, and also by the profession generally; and it is therefore satisfactory to find a decision upon it, pronounced by our highest Court of judicature"; he continued: "The three law lords, the Lord Chancellor, Lord Brougham, and Lord St. Leonards, were unanimous in deciding that no copyright did exist at common law, and thus have terminated this important and long-contested question".[79] Further testament to this, were it needed, lies in the almost immediate and overtly critical response that the decision provoked from one contemporary legal commentator. Less than two months after the decision, in September 1854, Montague Leverson published his treatise entitled Copyright and Patents, or, Property in Thought.[80] Taking a cue from Lord St Leonards dictum, he asserted that "[c]opyright is not the right of multiplying copies, but the right to the produce of a man's labour, often of a kind the most prolific of all labour of benefit to society". Rounding on the decision in Jeffreys he grieved that the Lords might have "made the law" in accordance with "what should be the rights of property"; instead, Leverson bemoaned, "[y]ou have made it to deny the labourer the produce of his labour".[81]

 

12. After Jeffreys

Having dispensed with the arguments based upon the common law right, the three law lords proceeded by considering the nature of the claim that a foreign author might make under the existing statutory regime. The Lords of course ultimately decided that Ricordi, as the assignee of the copyright in a work by a foreign composer, in a foreign jurisdiction, had nothing in British law to pass onto Boosey. The situation however would have been different had Ricordi been resident in Britain at the time that his work was first published. The legislation, in Cranworth's opinion, had to be construed "as referring to British authors only".[82] Nevertheless, he continued:

 

When I say that the Legislature must prima facie be taken to legislate only for its own subjects, I must be taken to include under the word "subjects" all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute; he is within its words and spirit. I go further; I think that if a foreigner, having composed, but not having published a work abroad, were to come to this country, and, the week or day after his arrival, were to print and publish it here, he would be within the protection of the statute ...[83]

 

In settling upon this residency requirement, the law lords threw the business of those British publishers who had developed links with overseas, and in particular American, authors into considerable disarray. Since D'Almaine publishers, such as Richard Bentley, had proceeded on the basis that publishing a work by a foreign author in Britain either before or at the same time as the work was published overseas was sufficient to secure British copyright protection therein. Jeffreys however dispensed with that particular reading of the statutory regime, and, as Barnes notes, the immediate impact of the decision was "to throw open the floodgates to the republication of American works".[84] The Athenæum reported the decision as follows:

 

Jeffreys versus Boosey has come to an end:- and the House of Lords have reversed the judgment of the Court of Exchequer Chamber. Copyright, as regards foreign works in this country, is again in abeyance, and dire is the consternation in the publishing world in consequence thereof. Our newest decision - pronounced by a tribunal from which there is no appeal - would seem to cancel all agreements, destroy all assumed copyrights of aliens in this country. We should say seem: - as it would ill become one of the laity to assert anything otherwise than doubtfully on a point so often established and reversed by the great legal tribunals. This last reversal of judgment was made at one o'clock on Tuesday in the House of Lords - a reversal which, among other things, in effect, upsets all American copyrights, - and before six o'clock that day the printers in London were engaged in printing cheap editions of American works. ... The mails will carry out the bad news to America:- this decision puts an end to all negotiation between the authors of that country and the publishers here. Mr. Bentley, we believe, has just concluded a treaty with Mr. Prescott, the historian, for his ‘Philip the Second' at a thousand pounds a volume. It is now waste paper. The American historian is now in the same position as regards England, as the English author is as regards America.[85]

 

The following week, the commentary upon the decision in Jeffreys continued: "The unsettlement of Copyright Law, as regards American authors, produced by the late decision of the House of Lords, puts us at sea once more. ... It is clear now, that whether right or wrong in morals, the reprinters were decidedly right in point of law".[86]

 

13. Jeffreys and International Copyright Relations

The decision of the House of Lords in Jeffreys had major implications for American authors who had developed fruitful relations with British publishers both after D'Almaine as well as in the wake of Campbell's decision in Boosey v. Jeffreys (1851). When the commentator in The Athenæum observed in August 1854 that the American authors were "now in the same position as regards England, as the English author is as regards America" he was undoubtedly correct; after Jeffreys American and British authors found themselves in a position of absolute parity. British authors received no protection in the America unless they were resident there,[87] and now, following Jeffreys, the same was true for American authors viz a viz Britain. For nearly twenty years the prospect of securing a system of reciprocal copyright protection with America had presented something of a holy grail for both British authors and publishers alike. This was equally the case throughout the course of the Jeffreys litigation in that negotiations, initiated in the first instance by the author Edward Bulwer-Lytton, had been proceeding upon the possibility of an Anglo-American copyright treaty.[88] On 4 September 1852 The Athenæum was able to report to its readers that:

 

The New York Daily Times announces, in its correspondence from Washington, that the English minister in that capital has made a distinct set of proposals to the American Government on the subject of copyright. President Fillmore, if we may trust the word of the correspondent referred to, has received this proposal very courteously, and signified his willingness that his cabinet should proceed to an immediate consideration of the subject. The recent convention with France is to be taken as the basis of the negotiation with America, - and there is some prospect that a copyright law may be at length established between the two countries that shall put an end to that brigandage in works of intellect which has outlived by so many years the general system of marquee and reprisals of which it once formed a logical part.[89]

 

The "English minister" in question was John F. Crampton (1805-1886). Earlier that year Crampton had notified the Foreign Office of his wish to negotiate a copyright treaty with the US upon the basis that "America was becoming more favourably inclined to an Anglo-American agreement".[90] In February 1853 President Fillmore authorized Edward Everett (1794-1865), the US Secretary of State, to sign a treaty ‘for the Establishment of International Copyright' that had been first drafted in July 1852 by Crampton and Daniel Webster (1782-1852), Everett's predecessor.[91] The treaty was brought to Senate for approval, but failed to secure ratification.[92] Despite his best efforts (which efforts involved some particularly shady dealings),[93] Crampton, on 18 June 1854, wrote to Lord Clarendon (1800-1870), the Foreign Secretary, that "the Americans were not yet ready for a Copyright Treaty".[94] Six weeks later the House of Lords handed down its decision in Jeffreys.

 

When Lord St Leonards concluded his opinion, although observing that "nothing could be more improper than to consider the state of international law in deciding a question of our own municipal law",[95] he did nevertheless speak to the international copyright question, the state of relations between the US and Britain, and the significance of the case before him within that broader context:

 

[T]he strained construction which would give to a foreigner the right which is now claimed, would have the effect of placing this country not on a level with the United States. For example, the United States do not allow a foreigner resident out of them to obtain a copyright there; but the American publisher imports his books the moment they are published, and sells them without difficulty and without interruption. In the United States they attempted to bring in a Bill in order to reconcile the laws of the two countries, and to put authors on the same footing in each country. That attempt did not succeed. That of course does not show what our law is, but it shows that we are not called upon to put any strained construction upon our own Act of Parliament in order to give to foreigners a right which their law denies to us.[96]

 

Before Jeffreys, American publishers were free to reprint British works without sanction, and American authors could secure copyright protection in Britain by ensuring that their work was first published therein (or alternatively published simultaneously in both the US and the UK). That being the case, there was a sense that, as things stood between the two countries, the majority of American authors and publishers had little incentive to adopt anything other than a self-interested and protectionist attitude to the question of international copyright protection. Perhaps unsurprisingly, various commentators saw in the decision of the Lords, and in particular in the observations of Lord St Leonards, a less than subtle attempt to revitalise international copyright negotiations between the two nations. The Jurist, for example, observed that:

 

[The decision] will probably point out to the Americans the expediency of respecting British copyright for the purpose of maintaining their own. The American Legislature have expressly enacted that copyright there shall be confined to natives or persons resident within the United States. They may now seek, under the International Copyright Act, 7 Vict. c.12, to avail themselves of a protection which they have long denied to others, and which they can receive only by giving it in their turn to the authors of this country.[97]

 

Whether intended to do so or not, the decision did seem to galvanize and re-focus attention within the US as to the copyright question. On 23 September 1854 The Athenæum reprinted an extract from a commentary upon Jeffreys from Norton's Literary Gazette and Publishers' Circular which predicted that "[t]he attention of American authors will now be turned, as never before, to the importance of at once securing an International Copyright".[98] The position of those Americans, such as the publisher Henry Carey (1793-1879),[99] who rejected the need for and value of an international arrangement, had, in the words of The Athenæum, "been taken in flank and rear by the House of Lords".[100] The Athanæum's reporter continued:

 

Mr. Prescott finds himself as much wronged by the want of law as Mr Grote, - and Mr. Hawthorn is as defenceless against the reprinters in England as Mr Dickens is against the reprinters of the United States. Let Mr. Cary say what he will, Messrs. Prescott, Irving, Bancroft, Hawthorn, Willis, and the multitude of writers who enjoy an English reputation, - whose works have commanded golden rewards as well as golden opinions from the reading world in England, - but cannot do so under our new reading of the law - will scarcely admit his assertions or endure his arguments.[101]

 

However, regardless of the hopes expressed on both sides of the Atlantic that an agreement might be obtained sooner rather than later, little happened;[102] if indeed Jeffreys did amount to a deliberate attempt to kick-start international negotiations, then, as Seville succinctly puts it: "the attempt failed".[103] In any event, the question of copyright relations between the two countries would not seriously be revived again until the late 1860s when the American Copyright Association was established with the object of promoting the enactment of an international law,[104] and no substantive developments would be secured until the passing of the ‘Chace Act' in the US in 1891.[105]

 

14. References

Government papers and legislation

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

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

Licensing Act, 1662, 3 & 4 Car.II, c.33

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

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

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

International Copyright Act, 1852, 15 & 16 Vict., c.12

Copyright Act, 1831, (US), 21st Cong., 2d Sess., 4 Stat. 436

Cases

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

Power v. Walker (1814) 3 M. & S. 7

Page v. Townsend (1832) 5 Sim. 395

Delondre v. Shaw (1828) 2 Sim. 237

Guichard v. Mori (1831) 2 Coopers 216

D'Almaine v. Boosey (1835) 1 Y. & C. 288

Bach v. Longman (1777) 2 Cowp. 623

Chappell v. Purday (1841) 4 Y. & C. 485

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408

Chappell v. Purday (1845) 14 M. & W. 303

Chappell v. Purday (1843) 12 M. & W. 303

Boozey v. Tolkien (1848) 5 CB 476

Cocks v. Purday (1846) 2 Car. & K. 269

Boosey v. Davidson (1847) The Times, 22 June 1847

Fellowes v. Chapman (1848) The Times, 8 December 1848

Cocks v. Lonsdale (1849) The Times, 29 March 1849

Boosey v. Purday (1849) 4 Ex. Rep. 145

Beckford v. Hood (1798) 7 D. & E. 620

Boosey v. Jeffreys (1851) 6 Ex Rep 580

Jeffreys v. Boosey (1854) 4 HLC 815

Novello v. Sudlow (1852) 12 CBR 177

Buxton v. James (1851) 5 DeG. & S. 80

University of Cambridge v. Bryer (1812) 16 East's 317

Wheaton v. Peters 33 US 591(1834)

Books and articles

Anon., "Notes of Leading Cases", Law Magazine, 53 (1855): 368

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

Bellini, V., The Sleepwalker (London: Brettell, 1831)

Bellini, V., Beauties of Bellini: Trois amusements, pour le piano forte, sur la motifs favoris de l'opéra La Sonnambula (London: Purday, 1850)

Clark, A.J., The Movement for International Copyright in Nineteenth Century America (Connecticut: Greenwood Press, 1973)

Clark, C., Digest of House of Lords Reports, 1814-1866 (London: Butterworths, 1866)

Deazley, R., Rethinking Copyright: History, Theory, Language (Cheltenham: Edward Elgar Press, 2006)

Leverson, M.R., Copyright and Patents, or, Property in Thought (London: Wildy & Sons, 1854)

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

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

Stevens, R., Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (London: Weidenfeld and Nicolson, 1979)

Stewart, R., Henry Brougham, His Public Career 1778-1868 (London: The Bodley Head, 1986)

Turberville, A.S., The House of Lords in the Reign of William III (Oxford: Clarendon Press, 1913)

Turberville, A.S., The House of Lords in the Eighteenth Century (Oxford: Clarendon Press, 1927)

Turberville, A.S., The House of Lords in the Age of Reform, 1784-1837 (London: Faber & Faber, 1958)

 

 

 



[1] See: uk_1710; uk_1814. Before the concept of library deposit was formalised within the Licensing Act, 1662, 3 & 4 Car.II, c.33 (see: uk_1662), Thomas Bodley had secured an arrangement with the Stationers' Company in 1610-11 to ensure the delivery of a single copy of every new book that was published; R.C.B. Partridge, The History of the Legal Deposit of Books Throughout the British Empire (London: The Library Association, 1938), 8-9. For more on the general history of the library deposit requirement, see in general Partridge, in ibid.

[2] The Copyright Act, 1801, 41 Geo.III, c.107, extended the protection provided for British copyright owners to the United Kingdom as well as "any part of the British Dominions in Europe" (s.1); the Copyright Act, 1814, 54 Geo.III, c.156, extended the reach of the copyright regime to incorporate "any part of the United Kingdom of Great Britain and Ireland, ... the Isles of Man, Jersey or Guernsey, or ... any other Part of the British Dominions" (s.4).

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

[4] The statute required all assignments to be "in writing"; see Power v. Walker (1814) 3 M. & S. 7.

[5] Clementi v. Walker, 867-68, 870. See also Page v. Townsend (1832) 5 Sim. 395, concerning prints published in Paris two days before they were published in London, in which Shadwell VC commented: "It is plain that the object of the Legislature was to protect those works which were designed, engraved, etched or worked in Great Britain, and not those which were designed, engraved, etched or worked abroad, and only published in Great Britain"; ibid., 404.

[6] Delondre v. Shaw (1828) 2 Sim. 237. Delondre concerned the copyright in a label on a bottle of medicine, which had been invented and was sold by the plaintiff in Great Britain, but was manufactured for the plaintiff by a French chemist, Pelletier, who had also designed the label. See also Shadwell VC's decision in Page v. Townsend to the effect that the legislation protecting engravings was concerned with protecting "those works which were designed, engraved, etched or worked in Great Britain, and not those which were designed, engraved, etched or worked abroad, and only published in Great Britain"; Page v. Townsend, 404.

[7] Guichard v. Mori (1831) 2 Coopers 216. That Brougham should have stressed the role of the legislature in keeping open "the avenues of knowledge" should not surprise given the extent to which he was involved in educational reform throughout his life. Described by one of his contemporaries as "the foremost advocate of popular education" Brougham was involved in the operation of Mechanic's Institutes (which sought to encourage working men to educate themselves upon matters of philosophy and the natural sciences), and played a central role in the establishing of the Society for the Diffusion of Useful Knowledge in 1826, as well as the founding of the University of London. Later in 1856, in his seventy-ninth year, he was instrumental in establishing the National Association for the Promotion of Social Science. In general see R. Stewart, Henry Brougham, His Public Career 1778-1868 (London: The Bodley Head, 1986), 183-204.

[8] D'Almaine v. Boosey (1835) 1 Y. & C. 288.

[9] Ibid., 293.

[10] Ibid., 295.

[11] Ibid.

[12] Ibid., 297.

[13] Bach v. Longman (1777) 2 Cowp. 623; see: uk_1777.

[14] In general, see: uk_1838.

[15] Hansard, 3rd Ser., 39 (1837): 1092.

[16] Ibid.

[17] Hansard, 3rd Ser., 41 (1838): 1097.

[18] Ibid., 1099-1100.

[19] Ibid., 1100. The possibility of negotiating a single multi-lateral treaty had at one stage been entertained but this was subsequently rejected on the grounds of impracticality. As Sherman and Bently comment: "[T]he reason why the option of a multilateral treaty was rejected as the means of establishing international copyright protection can be traced to the belief that just as literature was said to reflect national character, copyright laws reflected the national character of the country in which they operated. As such it was considered too difficult to develop a treaty which could singularly transcend and unite all the variation that existed between the proposed member states. As a consequence of these envisaged difficulties, the plans for a multilateral treaty were rejected in favour of more flexible bilateral agreements which the Crown would be able to pass in specific circumstances"; B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 113-14.

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

[21] International Copyright Act, 1844, 7 & 8 Vict., c.12; see: uk_1844.

[22] International Copyright Act, 1852, 15 & 16 Vict., c.12; see: uk_1852.

[23] Chappell v. Purday (1841) 4 Y. & C. 485.

[24] Chappell himself had died in 1834; it was his wife, and executrix, who secured the assignment after his death.

[25] Abinger CB commented as follows: "[I]t is a question of considerable doubt, and I cannot decide it on motion ... The question is, whether a party who, before the copyright had actually parted with to him (because at that time there was no conveyance), had permitted the books to be imported here, and sold without interference, is afterwards to be at liberty to come forward and say, that no party shall do the like again? It is an important question, and I think it is sufficiently doubtful to prevent any interference by injunction until it is decided"; Chappell v. Purday, 495.

[26] See: uk_1769; uk_1774.

[27] Chappell v. Purday, 494.

[28] Ibid., 495.

[29] Chappell v. Purday (1845) 14 M. & W. 303, 316-17; see also Chappell v. Purday (1843) 12 M. & W. 303.

[30] Chappell v. Purday (1845), 317-18.

[31] Ibid., 321-22, emphasis added.

[32] Indeed in the later case of Boozey v. Tolkien (1848) 5 CB 476, counsel for the plaintiff sought to bring an action upon the common law right, relying upon both Donaldson v. Becket and Chappell v. Purday (1845) as authority; ibid., 479.

[33] Emphasis added.

[34] See for example: Cocks v. Purday (1846) 2 Car. & K. 269, concerning Labitzky's Der Elfin Walzer; Boosey v. Davidson (1847) The Times, 22 June 1847, concerning Bellini's La Sonnambula; Fellowes v. Chapman (1848) The Times, 8 December 1848, concerning Wheaton's Elements of International Law; Cocks v. Lonsdale (1849) The Times, 29 March 1849, concerning Labitzky's La Victoria National Polka.

[35] Boosey v. Purday (1849) 4 Ex. Rep. 145.

[36] Although Boosey suggests that the work was first published by him in June 1831, the holdings of the British Library indicate that while the work did first appear in English in 1831, it was actually first published by a T. Brettell and not by Boosey (V. Bellini, The Sleepwalker (London: Brettell, 1831)). It is not until 1835 that various editions of La Sonnambula published by T. Boosey & Co. begin to appear.

[37] Beckford v. Hood (1798) 7 D. & E. 620.

[38] Boosey v. Purday, 152.

[39] Ibid., 150-51.

[40] Ibid., 154-56. Pollock CB opened his judgment in the following manner: "This Court, in the case of Chappell v. Purday, had previously intimated its opinion, that the right of the plaintiff must depend upon the statute law of this country, the laws of foreign nations having no extra-territorial power, and the plaintiff no right at common law"; ibid., 154.

[41] Ibid., 155, 157. Following this decision Purday published a new edition of the contested work: Beauties of Bellini: Trois amusements, pour le piano forte, sur la motifs favoris de l'opéra La Sonnambula (London: Purday, 1850).

[42] Boosey v. Jeffreys (1851) 6 Ex Rep 580.

[43] The only remaining common law judge not to be involved was Jervis CJ. While his opinions on the question of copyright in the works of foreign authors would later be aired in Jeffreys v. Boosey (1854) 4 HLC 815, he did provide some indication as to his thoughts on the existence of the common law right in Novello v. Sudlow (1852) 12 CBR 177, in suggesting that the plaintiff "had better assume, for the purpose of your argument, that there is no copyright at common law"; ibid., 181.

[44] Interestingly Campbell CJ was Lord Abinger's son-in-law, having married Abinger's daughter in 1821.

[45] Boosey v. Jeffreys, 592-93.

[46] Ibid., 594.

[47] Ibid., 593, 595.

[48] Rolfe B was appointed Lord Chancellor in December 1852 seven months after Campbell CJ's decision; see Chapter 3. After Campbell CJ's decision in Boosey v. Jeffreys work by foreign authors received the protection of the courts in both Buxton v. James (1851) 5 DeG. & S. 80, and Novello v. Sudlow.

[49] In Boosey v. Purday (1849).

[50] All four were present during the initial appeal in Boosey v. Jeffreys (1851).

[51] Crompton J also had considerable experience with this issue having been involved, as counsel for the defendant, in Chappell v. Purday (1845), Boosey v. Davidson (1848), and Boosey v. Purday (1849).

[52] Lord St Leonards (Edward Burtenshaw Sugden) had held the position of Lord Chancellor briefly in 1852.

[53] Stevens cites the following statistics: "In 1852, of 48 days of judicial business, Brougham sat for 32 and St. Leonards for 43. 1852-53: of 80 days of business - Cranworth, 67; Brougham, 40; St. Leonards, 36; 1854: of 78 days of business - Cranworth, 78; Brougham, 71; St. Leonards, 43. In 1854-55: of 83 days of business - Cranworth, 82; Brougham, 58; St. Leonards, 48"; R. Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (London: Weidenfeld and Nicolson, 1979), 39.

[54] Of the 51 peers who voted to overturn the decision of the lower court, and reinstate the original direction of the Lord Chancellor, only ten were present throughout all of the proceedings; amongst these ten were, of course, Lords Cranworth, Brougham and St Leonards. The remaining seven were Lords Somerhill, Monteagle, Sundridge, Newcastle, Derby, Shaftesbury and Sydney. Of the other 41 peers, only 33 had been present to hear the opinion of the common law judges on 29 June.

[55] See Stevens, 32-33.

[56] In 1855 the Commons established a Select Committee to investigate the general question of Appellate Jurisdiction. For Stevens this was as a result of then widespread dissatisfaction as to the cost of appeals to the Lords, that the Court only sat during the legislative term, and the absence of a regular supply of law lords and so the need to rely upon lay peers to get through the business of the appellate Court; Stevens, 39-40. The Committee reported to the House in May 1856 (1 HL Sessional Papers (1856) Rep. 46) and while it was strongly in favour of reform of the current system, it did stop short of recommending the establishment of a discrete judicial committee within the House to deal with appeals. It was not until the passing of the Appellate Jurisdiction Act, 1876, 39 & 40 Vict., c.59, that a court of the House of Lords was established which performed an appellate function that was distinct from the work of the Lords as a legislative body. In general see Stevens, 37-76. See also: A.S. Turberville, The House of Lords in the Reign of William III (Oxford: Clarendon Press, 1913); A.S. Turberville, The House of Lords in the Eighteenth Century (Oxford: Clarendon Press, 1927); A.S. Turberville, The House of Lords in the Age of Reform, 1784-1837 (London: Faber & Faber, 1958).

[57] Jeffreys v. Boosey, 815, 821-24.

[58] Crompton J commented that it was not "necessary to enter into the much-disputed question, as to whether the statute of Anne created a new right, or was an abridgment of an old one"; ibid., 846. Neither Williams nor Maule JJ made any explicit reference to Donaldson v. Becket.

[59] Jeffreys v. Boosey, 884-85.

[60] Wightman J observed that "[t]he right of property is merely personal, and an alien friend, by the common law, has as much capacity to acquire, possess, and enjoy such personal right or property as a natural-born British subject"; ibid., 885.

[61] Ibid., 903.

[62] Ibid., 872.

[63] Parke B, Pollock CB and Jervis CJ; Alderson B did not consider it "material for the present case" to decide upon the common law issue; ibid., 912.

[64] Ibid., 944-45.

[65] Ibid., 920.

[66] University of Cambridge v. Bryer (1812) 16 East's 317.

[67] Wheaton v. Peters 33 US 591(1834).

[68] Jeffreys v. Boosey, 935.

[69] Jeffreys v. Boosey, 961.

[70] Ibid., 961.

[71] The Lord Chancellor observed that copyright "if not the creature of our statute law, as I believe it to be, of our statute law, is now entirely regulated by it"; ibid., 954.

[72] See: uk_1842. On the various debates surrounding the passage of the 1842 Act see C. Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999); on Brougham's position in these debates see, in particular, ibid., 51-59.

[73] Jeffreys v. Boosey, 962.

[74] Ibid., 968. Like Parke B, Brougham made reference to Lord Ellenborough's opinion as to the common law right in University of Cambridge v. Bryer; again this should not surprise given that Brougham had been counsel for the defendant in that case.

[75] See for example Lord Chancellor Cranworth's observation that "it is proper to bear in mind that the right now in question ... is not the right to publish, or to abstain from publishing a work not yet published at all, but the exclusive right of multiplying copies of a work already published, and first published by [Boosey] in this country"; Jeffreys v. Boosey, 954. Similarly Lord Brougham noted that "[t]he right of the author before publication we may take to be unquestioned, and we may even assume that it never was, when accurately defined, denied"; ibid., 962, emphasis added.

[76] Ibid., 977-79.

[77] Parke B had earlier expounded upon this distinction in similar terms, observing that "[t]he term ‘copyright' may be understood in two different senses". He continued: "The author of a literary composition which he commits to paper belonging to himself, has an undoubted right at common law to the piece of paper on which his composition is written ... This sense of the word ‘copyright' has nothing to do with the present question, though, in the course of the argument, it has sometimes been used in that sense, when it was convenient to do so, particularly when it was contended that a copyright existed at common law. The other sense of that word is, the exclusive right of multiplying copies: the right of preventing all others from copying, by printing or otherwise, a literary work which the author has published. This must be carefully distinguished from the other sense of the word, and is alone to be looked at in the discussion of this case, and it would tend to keep our ideas clear in determining the question, if, instead of copyright, it was called the exclusive right of printing a published work, that being the ordinary mode of multiplying copies"; ibid., 919-20.

[78] C. Clark, Digest of House of Lords Reports, 1814-1866 (London: Butterworths, 1866), 63.

[79] Anon., "Notes of Leading Cases", Law Magazine, 53 (1855): 368 (371-73).

[80] M.R. Leverson, Copyright and Patents, or, Property in Thought (London: Wildy & Sons, 1854).

[81] Ibid., 12, 19. For an account on how this aspect of the Lords' decision was subsequently dealt with throughout the remainder of the nineteenth century and into the start of the twentieth century, see R. Deazley, Rethinking Copyright: History, Theory, Language (Cheltenham: Edward Elgar Press, 2006), 56-97.

[82] Jeffreys v. Boosey, 955.

[83] Ibid. Lord St Leonards made the same point in very similar terms: "I think we may fairly consider that it ought not to be denied that, speaking generally, an Act of our own Parliament, having a municipal operation, cannot be held to extend, prima facie, beyond our own subjects. It is not that an Act of Parliament may not, like the common law itself, extend its benefits to foreigners who come here and acquire that which it has been the policy of this country to give them; namely, the rights in a great measure of natural-born subjects. ... an Act of Parliament of this country ... cannot be considered to provide for foreigners, except as both statute and common law do provide for foreigners when they become resident here, and owe at least a temporary allegiance to the sovereign, and thereby acquire rights just as other persons do; not because they are foreigners, but because being here, they are here entitled ... to the general benefit of the law for the protection of their property, in the same way as if they were natural-born subjects"; ibid., 980.

[84] J.J. Barnes, Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815-1854 (London: Routledge & Kegan Paul, 1974), 172; in general see in ibid., 172-76.

[85] The Athenæum, 5 August 1854, 971.

[86] The Athenæum, 12 August 1854, 995.

[87] The US Copyright Act, 1831, 21st Cong., 2d Sess., 4 Stat. 436, provided that: "[A]ny person or persons, being a citizen or citizens of the United States, or resident therein, who shall be the author or authors of any book or books, map, chart, or musical composition, which may be now made or composed, and not printed or published, or shall hereafter be made or composed, and not printed or published, or who shall invent, design, etch, engrave, work, or cause to be engraved, etched, or worked from his own design, any print or engraving, and the executors, administrators, or legal assigns of such person or persons, shall have the sole right and liberty of printing, reprinting, publishing, and vending such book or books, map, chart, musical composition, print, cut, or engraving, in whole or in part, for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed"; s.1 (emphasis added).

[88] This fascinating period in Anglo-American copyright negotiations is recounted at length in Barnes, 177-262.

[89] The Athenæum, 4 September 1852, 953.

[90] Barnes, 218; Barnes continues: "[Crampton] addressed his remarks to Lord Granville, but they were received by the new Tory Foreign Secretary Lord Malmesbury who gave Crampton full authorization to negotiate, suggesting that any copyright treaty with America be patterned on the one signed recently between Britain and France. Malmesbury then consulted the Board of Trade and received their views. On 21 May he forwarded an annotated copy of the Anglo-French Copyright Treaty with appropriate modifications to Crampton"; ibid.

[91] Barnes, 239.

[92] In February 1854 The Athenæum reported upon the progress of the proposed treaty in the following terms: "Letters from America bring us word that the International Copyright Treaty has advanced a stage. The Committee on Foreign Relations has reported to the Senate, - and the treaty, as amended by Mr Everett, has been printed and laid on the table. The Committee it is noted has not made a formal recommendation:- out of fear, it may reasonably be assumed, of the Great Pirate Party. All the particulars of the treaty are not yet before us, - for the printing of it was only known in New York when the last mail-packet left that city; but enough of detail is known to make us doubtful whether such a treaty, even if passed by Congress, can be accepted as a settlement of the points at issue. When the terms of the treaty negotiated with Mr Crampton were made known last year, the [American] printers declared that their craft was in danger, as all books would be printed abroad. In order to meet this objection, Mr Everett has now suggested that works printed in Great Britain shall not enjoy the benefits of the treaty. This is the law which Congress is asked to sanction and English authors to accept. Its want of logic is scarcely less remarkable than its want of justice. The English author, as such, is to have no right in his work. He can convey to another - that is, to an American publisher - a right in his intellectual labour, - and that other can hold the right so conveyed to him against the pirates"; The Athenæum, 25 February 1854, 247-48.

[93] See in particular Barnes, 216-40.

[94] Barnes, 259.

[95] Jeffreys v. Boosey, 989.

[96] Ibid., 989-90.

[97] The Jurist, 18 (1854): 286.

[98] The Athenæum, 23 September 1854, 1146.

[99] See: uk_1801.

[100] The Athenæum, 14 October 1854, 1233.

[101] Ibid.

[102] See for example the Publishers' Circular, 16 August 1854, which, as Seville points out, "expressed the hope that [the decision in Jeffreys] would provide a further motive for an Anglo-American convention"; Seville, 187.

[103] Seville, 190.

[104] The formal title of the organisation was The Copyright Association for the Protection and Advancement of Literature and Art; see A.J. Clark, The Movement for International Copyright in Nineteenth Century America (Connecticut: Greenwood Press, 1973), 86-181.

[105] For a summary of events between 1854 and 1891, see Clark, ibid., and Seville, 190-252.


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