Abstract

http://ssrn.com/abstract=1299302
 


 



Copyright, Originality, and the Public Domain in Eighteenth-Century England


Simon Stern


University of Toronto - Faculty of Law

November 10, 2008

ORIGINALITY AND INTELLECTUAL PROPERTY IN THE FRENCH AND ENGLISH ENLIGHTENMENT, Reginald McGinnis, ed., pp. 69-101, Routledge, 2008

Abstract:     
Scholarship on the development of copyright in eighteenth-century England, after the Act of Anne (1710), has suggested that aesthetic debates about originality, in the sense of novelty or creativity, had an effect on contemporaneous legal thinkers' ideas about originality as a prerequisite for copyright protection. But when eighteenth-century commentators such as Blackstone and Hargrave spoke of originality for purposes of copyright, they were referring to a prohibition against reprinting books, not a demand for novelty. Recognizing that full-scale copies were prohibited, while partial copies were permitted, is crucial for an understanding of eighteenth-century literary culture, which had room for abridgements, unauthorized sequels, highly imitative parodies, and anthologies that reprinted some poems and excerpted others. The public domain was not understood as the residue of material that was not eligible for copyright protection; rather, all work was presumptively available for use by other writers unless it fell within the narrow bounds of copyright protection.

The chapter begins by showing that arguments in favor of a public domain were implicit in the efforts by Locke and others to eliminate the Licensing Act in the 1690s. The second section discusses the eighteenth-century debate over copyright, emphasizing the limited scope of legal protection and the correspondingly wide reach of the public domain. This section focuses on the case law concerning the permissibility of abridgements, the legal writings of Blackstone and Hargrave, and the aesthetic writings of Richard Hurd and Samuel Johnson. As these sources reveal, literary critics were willing to defend imitative writing, and legal thinkers found little to criticize and much to praise in practices such as abridgement. The third section discusses the kinds of imitations that were allowed to flourish under this legal regime, and shows that imitative practice was crucial for the development of the modern novel in the 1740s. Finally, a short section at the end looks at why writers sometimes call for a strong originality requirement that demands more than Feist (in the U.S.) or C.C.H. (in Canada).

Number of Pages in PDF File: 34

Keywords: copyright, intellectual property, fair use, public domain, parodies, aesthetics, Act of Anne

JEL Classification: K39

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Date posted: November 12, 2008 ; Last revised: September 4, 2013

Suggested Citation

Stern, Simon, Copyright, Originality, and the Public Domain in Eighteenth-Century England (November 10, 2008). ORIGINALITY AND INTELLECTUAL PROPERTY IN THE FRENCH AND ENGLISH ENLIGHTENMENT, Reginald McGinnis, ed., pp. 69-101, Routledge, 2008. Available at SSRN: http://ssrn.com/abstract=1299302 or http://dx.doi.org/10.2139/ssrn.1299302

Contact Information

Simon Stern (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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