Primary Sources on Copyright (1450-1900)
Commentary on Millar v. Taylor (1769)
School of Law, University of Birmingham, UK
Please cite as:
Deazley, R. (2008) ‘Commentary on Millar v. Taylor (1769)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
1. Full title
3. Alexander Donaldson in London
4. Millar v. Taylor (1765)
5. Millar v. Taylor (1769): Dissent in the Court
6. The Vindication of Copyright at Common Law
1. Full title
Millar v. Taylor (1769) 4 Burr. 2303
Decision of the Court of King's Bench providing that, regardless of the provisions of the Statute of Anne 1710 (uk_1710), an author enjoyed the exclusive right of publishing his work in perpetuity.
Lord Mansfield, leading a majority decision of the court, provides a robust and influential justification as to the existence of an author's rights in literary property at common law. Yates, J., focussing upon the potential detriment to the public that would flow from the existence of a perpetual right, provides the dissenting opinion. The commentary explores the background to the litigation, in particular the nature of the threat which the Scottish reprint industry posed to the London book trade, relevant case-law leading up to the decision, as well as the substance of the judicial opinions.
3. Alexander Donaldson in London
Given the substance of the Booksellers Bill that had been brought before Parliament in 1737, and the opportunity which the decision in Baller v. Watson (1737) presented in the guise of both a perpetual injunction and an account of profits for the successful litigant, it is perhaps not surprising that the major metropolitan booksellers decided that continuing to lobby for parliamentary protection did not necessarily represent the best legal avenue by which to bolster their commercial interests. Instead, with the case of Midwinter v. Hamilton (1743-48), the booksellers turned to the courts of common law. This action signalled the beginning of a thirty-year period, often referred to as ‘the battle of the booksellers', during which the London booksellers locked horns with a newly emerging Scottish book trade over the right to reprint works for which the term of copyright protection provided by the Statute of Anne 1710 had expired. In short, the Scottish booksellers argued that no copyright existed in an author's work at common law. The southern monopolists, on the other hand, suggested that the legislation did not create rights de novo, but rather served to supplement and support a pre-existing common law copyright. During this period both the arguments for and against the existence of the common law right were developed through a number of notable cases, including Millar v. Kincaid (1749-1751)  and Tonson v. Collins (1761, 1762), culminating with the two landmark decisions of Millar v. Taylor (1769) and Donaldson v. Becket (1774).
The origins of Millar (1769) lay in the decision of the Scottish bookseller Alexander Donaldson (bap.1727, d.1794) to open a shop in London, near Norfolk Street, in the Strand. When Donaldson published Some Thoughts on the State of Literary Property in 1764, at the end of the tract, he included the following advertisement:
"This is to give notice, that Alex. Donaldson, from Edinburgh has now opened a shop for cheap books, two doors east from Norfolk-street, in the Strand, where they are sold from thirty to fifty per cent. under the usual London prices.-- The London booksellers ... have prevented their brethren from dealing with him, have forced him, in self-defence, to establish this shop. -- Good allowance is made to merchants who buy for exportation, and to country booksellers."
Until now the Scottish reprint industry had remained a largely regional affair, targeting the Scottish market, the provincial English booksellers, and the export trade to America. However, Donaldson's audacity, in bringing his reprint business into the very heart of the capital, could not go unchecked. Soon after he opened his shop, Andrew Millar (1705-1768) proceeded against Donaldson in Chancery. Upon submission of their bills of complaint, he was granted an injunction until answer, to prevent Donaldson printing various works, including: The Seasons by the poet James Thomson (1700-1748); Homer's Iliad by Pope (1688-1744); and Miscellanies, a collection of Swift's (1667-1745) writing, which included a Life of Swift by Hawkesworth (bap.1720, d.1773).
When Donaldson entered his answer he "made it a question whether, as the two terms of fourteen years each, under the statute 8 Anne, was expired, the plaintiff was entitled to the sole printing and vending the books on the foot of the common law right". In response, Millar moved that the injunctions formerly granted by the court be continued until the hearing of the cause. When this motion came to be argued before Lord Chancellor Northington (c.1708-1772), only the plaintiff's counsel, Mr. Yorke (1722-1770), was given time to make any representations on the issue. Yorke made reference to a number of cases; however, Lord Northington considered that only Tonson v. Walker (1752) had any relevance to the action at hand, and continued that even that case may have turned on the fact that the works of Milton (1608-1674) printed with additional notes could be considered a new work. Without hearing any more, the Lord Chancellor dissolved the injunctions initially granted against Donaldson. The issue, he explained, was a point of so much difficulty and consequence that he desired not to decide it at the hearing but was instead inclined to send it to law for the opinion of the judges. Emphasising that he wished to be understood as giving no opinion on the subject, he nevertheless observed that "it might be dangerous to determine that the author has a perpetual property in his books". By way of explanation, he continued that "such a property would give [the copyright owner] not only a right to publish, but to suppress too" which he considered "would be a fatal consequence to the public".
4. Millar v. Taylor (1765)
Failing to gain satisfaction against Donaldson, Millar returned to the courts, but choose to litigate against the less formidable figure of Robert Taylor, a printer from Berwick. Moreover, the action concerned a work that fell within the protection of the Statute of Anne. In Millar v. Taylor (1765), Millar and James Dodsley (1724-1797) complained that the defendant Taylor had printed ‘several thousand copies' of Edward Young's (bap.1683, d.1765) book of poems Night Thoughts and sought an account of profits and an injunction from the court. In 1743 and 1744 Young had sold his rights in the first volume of the work to Robert Dodsley (1704-1764), which had, in 1759, been subsequently transferred to James Dodsley. In his defence Taylor relied squarely upon s.11 of the 1710 Act. Admitting that he had exchanged one hundred and fifty copies of Young's work for other books with Alexander Donaldson, he countered the plaintiff's claim, arguing that "the Author of Books of Genius and Composition of the Brain or their Assignees have not vested in them by Law a perpetual indefinite Right or property to the copies of such Books". Rather, "the sole liberty given to the authors" was restrained to the first term of fourteen years provided by the statute after which, he continued, "the sole property of printing and disposing of the copies" returned to the author, Young, who was still very much alive. Conceding that he had printed the works in question, Taylor argued that while Edward Young may have been able to bring a case against him, Millar and Dodsley could not. Sewell MR (b.1710-1784) ordered that the injunction "be continued for the remainder of the two terms of fourteen years and fourteen years" during which Young, as the author, and the plaintiffs "as standing in his place" held the printing right. This decision, he continued, was "without prejudice" to any right the plaintiffs may have had "beyond the said two terms".
Less than a week after this decree, a further order was made by the court in relation to a second action Millar had taken against Taylor. This action, like the one he had previously taken against Donaldson, concerned an edition of Thomson's Seasons. On 26 November 1765, counsel for Millar and Taylor appeared before the court. Millar did not allege that Taylor had printed his work, but rather based his case upon the fact that he had vended and sold it. Where Millar had failed with Donaldson, he sought to succeed against Taylor. The defendant, once again relying explicitly upon the Statute of Anne, denied the right of a purchaser of a given work, to print it for longer than the first fourteen year period delineated in the legislation. Moreover, he pointed out that, unlike Young's work, The Seasons "was first printed and published about 30 years ago, and the author has been dead about 15 years". "[B]y the event of the Author dying after the expiration of 14 years", Taylor submitted that "[Thomson's] works were become the property of the publick uncontrolled and unaffected by any Acts either of the Author or proprietors thereof which extended beyond the term of 14 years". It had by now become clear that the Court of Chancery was not the forum for deciding upon the existence of a perpetual common law right. The Master of the Rolls had been careful with Young's Night Thoughts to restrict the extent of the injunction to the times specified in the Act. Now, faced with a work falling outside the protection of the Statute of Anne, he ordered that "a case be made for the opinion of the judges of the Court of King's Bench" reserving the right to issue judgment "till after the judges shall have made their certificate". It was this direction that gave rise to Millar v. Taylor (1769).
5. Millar v. Taylor (1769): Dissent in the Court
In court, Millar explained that on 20 January 1763 he had printed two thousand copies of Thomson's Seasons, following which, on 20 May 1763, Taylor had published, exposed to sale, and sold one thousand copies of the same work. These unauthorised editions were declared to have been "injuriously printed by some person or persons" without Millar's licence or consent. In fact, these were the very editions printed by Donaldson of which Millar was all too aware. Omitting any reference to Donaldson, Millar claimed to have suffered damage in the amount of £200, which represented the profit that would have been realised from the thousand copies of his own edition that remained unsold. In response, Taylor pleaded the general issue, "Not Guilty", and the case proceeded to trial before a jury. The jury found that before the Statute of Anne:
"[I]t was usual to purchase from Authors the Perpetual Copy-Right of their Books; and to assign the same from Hand to Hand, for valuable Considerations; and to make the same the Subject of Family Settlements, for the provision of Wives and Children."
They confirmed the facts of the action as asserted by Millar, but sought the advice of the court as to whether or not Taylor was "liable in law to answer the Damages sustained by the said Andrew Millar". If the court found that Taylor was so liable, then the jury would find Taylor guilty of the charge levelled against him, and set damages at one shilling. If the court considered Taylor not so liable, then he would be found not guilty, and the action dismissed.
The first arguments were delivered to the court, on 30 June 1767, by John Dunning (1731-1783) for the plaintiff and Edward Thurlow (1731-1806) for the defendant. Thurlow had previously appeared against the common law right in Tonson (1761). Following these, the court ordered the cause to stand over to the following term for second argument. On 7 June 1768 William Blackstone (1723-1780) set out the arguments on behalf of the plaintiffs; Arthur Murphy (1727-1805) responded. After the delivery of this second set of arguments, it was ordered that the cause once again stand over until the next term for the opinion of the court. On 8 June 1768, however, Andrew Millar died. Millar's state of health must have been made apparent to the court, for at the time that the order was made that the issue stand over for judgment, it was also ordered, with the consent of the counsel for both parties, that "the judgment which shall be then given shall be entered up as a judgment of this term, in the same manner as if the judgment had been given on this day". And so, although the decision of the court was not handed down until 20 April 1769, it stands as having been delivered on 7 June 1768.
The four judges of the King's Bench presiding over the case were Willes (bap.1723, d.1787), Aston (1717-1778), Yates (1722-1770) JJ. and Lord Chief Justice Mansfield (1705-1793). Yates J. had earlier represented the defendant in Tonson (1762), arguing at length against the existence of a common law right. Lord Mansfield, William Murray, had been one of the key protagonists in Millar v. Kincaid (1749-1751), appearing as counsel on behalf of the London interest, as well as arguing in favour of the perpetual right in Tonson v. Walker (1752). Beginning his judgment, Mansfield CJ acknowledged that this was "the first instance of a final difference of opinion in this court ever since I sat here", a small matter of some thirteen years. Despite each of the four having communicated their thoughts on the matter to each other, having "talked the Matter over, several times", and having "all equally endeavoured to persuade one another", Yates J. nevertheless felt compelled to dissent from the opinion of the other three judges. Unanimity of thought upon this issue was not to be achieved. Given the question was "so important to the Literary World" Yates J. expressed his regret that "there should be any Disagreement upon this Bench". For Lord Mansfield, the lack of accord was not so problematic; indeed, he implied the reverse, suggesting that the dissent actually strengthened the force and conviction of the majority decision:
"I do not know whether it may not be very advantageous, that there has been a difference of opinion, for it has been the occasion of going into the whole of the question, and the whole of the arguments much more at large; and it is a general question that concerns a vast number of people, now and for the time to come, it concerns the whole kingdom: And therefore I think it is of publick advantage that we have had different perceptions of this question, that has occasioned its being so minutely and so thoroughly gone into." 
6. The Vindication of Copyright at Common Law
For Willes J., delivering the first judgment, there were two relevant questions for consideration: "Whether the copy of a book, or literary composition, belongs to the author, by the common law", and, "[w]hether the common law-right of authors to the copies of their own works is taken away by 8 Ann. c.19.". Aston J. framed the problem slightly differently:
"1st, Whether an author's property in his own literary composition is such as will entitle him, at common law, to the sole right of multiplying copies of it, or 2ndly, supposing he has a property in the original composition, whether the copy-right by his own publication of the work, is necessarily given away ... or, 3rdly, taken away from him, or restrained, by the Statute of Queen Ann." 
All three of the majority judges made reference to the printing patent cases of the late seventeenth century and the more recent decision of Baskett v. University of Cambridge (1758), as well as the various Chancery cases following the 1710 Act, both of which strands, they found, supported the existence of a common law right pre-dating the Statute of Anne. Similarly, all three investigated the wording of the 1710 Act, finding nothing therein that was contrary to the author's right at common law. While Willes J. examined the pre-history of the 1710 Act at some length, Aston J. preferred instead to enquire into the nature of property itself. It was appropriate "to consider certain great truths and propositions, which we, as rational beings, that is, to whom reason, as the great law of nature, has laid down the obligation of being governed by". Relying then upon truths "respecting mankind in general, antecedent to all human laws", Aston J. expounded a "great theory of property", drawing upon Pufendorf, Grotius, and John Locke (1632-1704), ending with the declaration that:
"[A] Man may have Property in his Body, Life, Fame, Labours, and the like; and, in short, in anything that can be called His: That it is incompatible with the Peace and Happiness of Mankind, to violate or disturb, by Force or Fraud, his Possession, Use or Disposal of those Rights; as well as against the Principles of Reason, Justice, and Truth." 
Where Aston J. drew upon "great truths and propositions" as to the nature of property, Lord Mansfield turned to fundamental principle as the cornerstone of the common law. Having set out that "what is agreeable to natural principles is common-law; what is repugnant to natural principles is contrary to common-law", he continued: "[I]t is agreeable to natural principles that an author should have a copy of his own works before publication". Why?
"[B]ecause it is just, that an Author should reap the pecuniary Profits of his own Ingenuity and Labour. It is just, that Another should not use his Name, without his consent. It is fit, that He should judge when to publish, or whether he will ever publish. It is fit he should not only choose the Time, but the Manner of Publication; how Many; what Volume; what Print. It is fit, that he should choose to Whose care he will Trust the Accuracy and Correctness of the Impression; in whose Honesty he will confide it, not to foist in Additions ... I allow them sufficient to shew it is agreeable to the Principles of Right and Wrong, the Fitness of Things, Convenience, and Policy, and therefore to the Common Law to protect before Publication ... The 8th of Queen Ann is no Answer. We are considering the Common Law, upon Principles before and independent of that Act." 
This focus upon principle, upon reason and justice, and upon the rights of the author as central protagonist, for Yates J., obscured the wider social implications of the majority position. In short, the "rest of mankind" was being overlooked. He found it impossible to accept that a right could or should accrue to an author in perpetuity, and it was this element of perpetuity, and its consequences, which the majority judges had omitted from their reasoning:
"Shall an Author's Claim continue, without Bounds of Limitation; and for ever restrain all the Rest of Mankind from their natural rights, by an endless Monopoly? Yet such is the claim that is now made; a Claim to an exclusive Right of Publication, for ever: For, Nothing less is demanded as a Reward and Fruit of the Author's Labour, than an absolute Perpetuity."
It was essential to explore "the consequences the publick will feel, if this claim should be established". The exclusive property sought by the booksellers would hand them the opportunity either to suppress works or sell them at whatever exorbitant price they considered appropriate. Could this really be considered "an encouragement of the propagation of learning?" He stressed the prospect of perpetual litigation over a property that bore no "proprietory marks in itself, and by common law is not bound to any formal stipulation", as well as disputes arising between authors "whether the work of one ... were or were not the same as those of another". Such questions would be liable to "great uncertainties and doubts". Such a property right would "imbroil the peace of society with frequent contentions, most highly disfiguring the face of literature, and highly disgusting to a liberal mind". Yates J. concluded: "[I]t is equally my duty, not only as a judge, but as a member of society, and even as a friend to the cause of learning, to support the limitations of the statute".
Despite his protestations, Yates J. remained in the minority, and following the decision, Millar's executors returned to Chancery. It had now been established that when Millar had originally filed his bill against Taylor he did have a property in the writings of James Thomson, he had had a property in The Seasons. In July 1770 the new Lord Chancellor, Lord Apsley (1714-1794), ordered Taylor to account for all the copies he had sold and the plaintiffs were granted a perpetual injunction preventing him printing the work again. Moreover, unlike the injunction granted by Lord Talbot (bap.1685, d.1737) in Baller (1737), there was to be no ambiguity about the duration of this decree. This one was clearly anticipated to last in perpetuity. For the first time, the London booksellers had secured an authoritative affirmation of the author's common law right to print and publish his work in perpetuity, and, by extension, had secured their monopoly over the trade's most profitable titles. The debate that had begun following Midwinter (1743-1748) had finally been brought to an explicit determination.
Governmental papers and legislation
Statute of Anne, 1710, 8 Anne, c.19
Baller v. Watson (1737) (1729-1737), NA, c.11 1739/34, 1272/7, 2427/24, 1272/17, 1272/18, 1727/16, 2433/14, 2434/18, 1738/35; c.33 351/305, 353/5, 353/38, 353/153, 353/202, 353/292, 353/401, 355/20, 355/27, 357/132, 357/249, 357/271, 357/272, 357/273, 357/419, 357/547, 359/378, 361/14, 361/17, 367/5, 367/23, 367/37, 367/83, 367/188, 369/315
Midwinter v. Hamilton (1743-48)
Millar v. Kincaid (1751) British Library, 18th century reel, 4065/03, 04
Tonson v. Walker (1752) 3 Swans 672
Basket v. University of Cambridge (1758) 2 Keny. 397
Tonson v. Collins (1761) 1 Black W. 301
Tonson v. Collins (1762) 1 Black W. 329
Millar v. Taylor (1765) 4 Burr. 2303
Millar v. Taylor (1769) 4 Burr. 2303
Donaldson v. Becket (1774) 4 Burr. 2408
Books and Articles
Donaldson, A., Some Thoughts on the State of Literary Property (London: 1764). Reprinted in The Literary Property Debate: Six Tracts 1764-1774. Edited by Parks, S. (New York and London: Garland, 1975)
Mann, A., The Scottish Book Trade 1500-1720, Print Commerce and Print Control in Early Modern Scotland (East Lothain: Tuckwell Press, 2000)
McDougall, W., "Copyright Litigation in the Court of Session, 1738-1749, and the Rise of the Scottish Book Trade", Transactions, 5 (1988): 2-31
McDougall, W., "Scottish books for America in the mid 18th Century". In Spreading the Word: The Distribution Networks of Print 155-1850. Edited by Myers, R., and Harris, M. (Winchester: St. Paul's Bibliographies, 1990), 21-46
Parks, S., ed., The Literary Property Debate: Eight Tracts 1774-1775 (New York and London: Garland, 1974)
Parks, S., ed., The Literary Property Debate: Seven Tracts 1747-1773 (London: Garland Publishing, 1974)
Walters, G., "The Booksellers in 1759 and 1774: The Battle for Literary Property", The Library, 5th ser., 29 (1974): 287-311
 See: uk_1737.
 See: uk_1737a.
 There exist a number of documents relating to this action available in the Bodleian Library, the British Library, and the Advocate's Library, Edinburgh. See for example: Petition of the Booksellers of London against the Booksellers of Edinburgh and Glasgow, 15 July 1746; Answers for the Booksellers of Edinburgh and Glasgow to the petition of Andrew Millar and other Booksellers in London, July 29 1746; and, Answers for the Booksellers of Edinburgh and Glasgow to the Petition of Daniel Midwinter and other booksellers in London, 21 December 1746. See also S. Parks, ed., The Literary Property Debate: Seven Tracts, 1747-1773 (London: Garland Publishing, 1974).
 See for example Gwyn Walters, "The Booksellers in 1759 and 1774: The Battle for Literary Property", The Library, 5th ser., 29 (1974): 287-311.
 The Case of the Appellants, 8 February 1751, British Library, 18th century reel 4065/03; The Case of the Respondents, 11 February 1751, British Library, 18th century reel 4065/04.
 Tonson v. Collins (1761) 1 Black W. 301; Tonson v. Collins (1762) 1 Black W. 329.
 Millar v. Taylor (1769) 4 Burr. 2303.
 Donaldson v. Becket (1774) 4 Burr. 2408; see: uk_1774.
 Alexander Donaldson had first begun to print and publish books in Edinburgh in 1750. His decision, to embark on a career as a bookseller, had been taken in the wake of Midwinter (1743-1748). Donaldson, in 1774, explained how, having "consulted some of the ablest advocates both in England and Scotland", they had confirmed his belief that "literary property depended entirely upon, and was wholly regulated by, the statute of Queen Anne". As a result, he "entered very largely into the bookselling business" publishing new works as well as "a great number of old and valuable books"; see: To the Honourable the Commons of Great Britain, in Parliament assembled, The Humble Petition of Alexander Donaldson, Bookseller in St.Paul's Church-yard, London, in Petitions and Papers relating to the Bill of the Booksellers, now before the House of Commons, reprinted in S. Parks, ed., The Literary Property Debate: Eight Tracts 1774-1775 (New York and London: Garland, 1974).
 A. Donaldson, Some Thoughts on the State of Literary Property (London: 1764), reprinted in S. Parks, The Literary Property Debate: Six Tracts 1764-1774 (New York and London: Garland, 1975).
 In general see: W. McDougall, "Copyright Litigation in the Court of Session, 1738-1749, and the Rise of the Scottish Book Trade", Transactions, 5 (1988): 2-31; W. MC Dougall, "Scottish books for America in the mid 18th Century", in R. Myers and M. Harris, ed., Spreading the Word: The Distribution Networks of Print 155-1850 (Winchester: St. Paul's Bibliographies, 1990), 21-46. See also A. Mann, The Scottish Book Trade 1500-1720, Print Commerce and Print Control in Early Modern Scotland (East Lothain: Tuckwell Press, 2000).
 Millar v. Donaldson (1765) 2 Eden 329; see also: Osbourne v. Donaldson (1765) 2 Eden 329.
 Millar v. Donaldson, 329.
 Tonson v. Walker (1752) 3 Swans 672.
 A report of the Lord Chancellor's comments is also provided in Donaldson's ‘Information' for the later case of Hinton v. Donaldson (1773); see: uk_1773.
 Millar v. Taylor, NA, c.33 426/60.
 The first five parts of the poem were sold in 1743; the sixth part of the first volume was sold in 1744.
 NA, c.33 426/60.
 Ibid. It was also ordered that one of the Masters of the Court "take an account of the defendant of the profits of the Books mentioned in the plaintiffs Bill" and that "the said defendant do pay the same as the master shall direct"; ibid.
 NA, c.33 426/68.
 The injunction, formerly granted, was continued in the meantime; NA, c.33 426/68. There are two main reports of the decision in Millar v. Taylor (1769). The first is a transcript of the decision printed by the Leith bookseller William Coke in 1771: Speeches or Arguments of the Judges of the Court of King's Bench in April 1769; In the Cause of Andrew Millar against Taylor for printing Thomson's Seasons, to which are added Explanatory Notes, And an appendix, containing a short state of Literary Property, by the Editor. The second is a note of the case by Sir James Burrow, printed in 1773: The Question Concerning Literary Property, determined by the Court of the King's Bench, on 20th April 1769, in the cause between Andrew Millar and Robert Taylor, with the separate Opinions of the four Judges and the Reasons given by each in support of his opinion (London: Strahan and Woodfall, 1773). Note also that there is essentially an exact transcript of this 1773 report in 4 Burr. 2303-8. Given that the editor of Coke's edition apologises that the speeches "are not so complete as he could have wished", and that Burrows concedes that "[i]t is impossible to take down every Thing that is said, with Accurate precision", it should not surprise that there are variations between the two texts. For the most part however what differences exist are relatively minor in nature, the largest divergence between the two texts coming at the very end of Lord Mansfield's speech: Coke, 104-106; Burrows, 124-27.
 In addition to this Millar was to be awarded 39 shillings costs and charges.
 Burrows, 112.
 Ibid., 63.
 Coke, 106; note that this passage is omitted from the Burrows' report.
 Burrows, 11.
 Ibid., 41.
 Basket v. University of Cambridge (1758) 2 Keny. 397.
 Ibid., 42-44.
 Ibid., 115-16.
 Ibid., 70.
 Ibid., 108-11; emphasis added.
 See: uk_1737a.