Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England

This is a pre-review draft of a chapter in the Oxford Literature Handbooks series (2015); please visit the Oxford Handbooks Online site for the final version

22 Pages Posted: 15 Dec 2014 Last revised: 1 Nov 2017

See all articles by Simon Stern

Simon Stern

University of Toronto - Faculty of Law

Date Written: December 12, 2014

Abstract

The advent of statutory copyright in eighteenth-century England raised questions about ensuring access to the materials that writers need to produce new books. The public domain did not spring into being as the obverse of the rights afforded by the Act of Anne (1710), nor was it created by nineteenth-century doctrines such as fair use; rather, it developed out of practices and assumptions predating the Act of Anne, and others that emerged in the statute’s wake. To explore these ideas, the essay considers booksellers’ and authors’ conceptions of copyright as property, the metaphors proposed by advocates of anti-piracy measures, arguments about copyright’s duration and its basis in the common law, and analogies between copyright and patent law during this period. Finally, the essay discusses the booksellers’ strategic litigation in the equity courts, where pleading could rely on imaginative premises that, in some respects, rival those of contemporaneous novelists.

Keywords: copyright law, English literature, legal history, eighteenth century, authorship, intellectual property, property law, public domain, piracy, plagiarism, law and literature, book history, common law

Suggested Citation

Stern, Simon, Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England (December 12, 2014). This is a pre-review draft of a chapter in the Oxford Literature Handbooks series (2015); please visit the Oxford Handbooks Online site for the final version , Available at SSRN: https://ssrn.com/abstract=2537447

Simon Stern (Contact Author)

University of Toronto - Faculty of Law ( email )

78 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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