Copyright at Common Law in 1774

59 Pages Posted: 2 Oct 2014 Last revised: 24 Sep 2015

Tomas Gomez-Arostegui

Lewis & Clark Law School

Date Written: October 2, 2014

Abstract

As we approach Congress’s upcoming reexamination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century -- Millar v. Taylor and Donaldson v. Becket. The salient issue is whether copyright was a natural or customary right, protected at common law, or a privilege created solely by statute. These differing viewpoints set the default basis of the right. Whereas the former suggests the principal purpose was to protect authors, the latter indicates that copyright should principally benefit the public.

The orthodox reading of these two cases is that copyright existed as a common-law right inherent in authors. In recent years, however, revisionist work has challenged that reading. Relying in part on the discrepancies of 18th-century law reporting, scholars have argued that the natural-rights and customary views were rejected. The modified account has made great strides and has nearly displaced the traditional interpretation. Using a unique body of historical research, this Article constitutes the first critical examination of the revision. Ultimately, it concludes that the revision is incorrect and that we should return to the orthodox view.

This Article also discusses the procedures of the House of Lords in appeals and the reporting of appeals in newspapers and periodicals.

Keywords: copyright, history, common law, donaldson, becket, beckett, house of lords, procedure, millar, taylor, reporting, newspapers, appeals

Suggested Citation

Gomez-Arostegui, Tomas, Copyright at Common Law in 1774 (October 2, 2014). 47 Connecticut Law Review 1 (2014); Lewis & Clark Law School Legal Studies Research Paper No. 2014-16. Available at SSRN: https://ssrn.com/abstract=2504221

Tomas Gomez-Arostegui (Contact Author)

Lewis & Clark Law School ( email )

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