From Author's Right to Property Right
University of Toronto Law Journal, Vol. 62 (2012), 29-91
73 Pages Posted: 15 May 2011 Last revised: 1 Nov 2017
Date Written: May 14, 2011
Though copyright is usually categorized as a property right, efforts to justify copyright on other grounds have persisted since the eighteenth century. The Lockean defense, based on the author’s labour, is usually seen as conducive to a property right, but is sometimes linked instead (or in addition) to a personality right. I explore another approach that has been analyzed in the doctrinal literature, but that has received less attention from historians of English copyright law. This approach focuses on the author’s dignitary rights, including communicative rights (bearing on who controls the public presentation of the text), and reputational rights (bearing on the text’s appearance and its status as a reflection of the author). By contrast with the labour theory, the dignitary view of copyright is harder to reconcile with a property right, although as I show, eighteenth-century advocates of strong copyright protection sought to assimilate this view into the property framework. The Statute of Anne (1710) sought to accommodate the competing needs of authors, publishers, and the public. Its protections did not affiliate copyright with a property framework, as the publishing industry would have liked. In the course of the eighteenth century, dignitary concerns jostled with property claims as litigants argued over statutory protection. To explore the relations among these arguments, I reexamine the Statute of Anne and four of the major contemporary copyright judgments: Burnet v. Chetwood (1721), Pope v. Curll (1741), Millar v. Taylor (1769) and Donaldson v. Becket (1774). Each of these cases reveals new dimensions when examined through the lens of dignitary concerns. By studying these materials, we can gain a better understanding of how the property-based view took hold during a vital period in the formation of copyright law. This development, in turn, helps to explain two of the most distinctive features in the recent history of copyright law: the ever-widening reach of derivative rights, and the ever-lengthening term of protection.
Keywords: copyright, property, legal history, Burnet v. Chetwood, Pope v. Curll, Millar v. Taylor, Donaldson v. Beckett
JEL Classification: K11
Suggested Citation: Suggested Citation