Common law copyright

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Common law copyright is the legal doctrine that grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law.

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In part, it is based on the contention that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property.

The "natural right" aspect of the doctrine was addressed by the courts in the United Kingdom ( Donaldson v. Beckett , 1774) and the United States ( Wheaton v. Peters , 1834). In both countries, the courts found that copyright is a limited right under statutes and subject to the conditions and terms the legislature sees fit to impose. The decision in the UK did not, however, directly rule on whether copyright was a common-law right.

In the United States, common law copyright also refers to state-level copyrights. These are ordinarily preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For instance, in the New York State 2005 case, Capitol Records v. Naxos of America , the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common law copyrights, [1] a ruling that was clarified and limited with 2016's Flo & Eddie v. Sirius XM Radio.

Battle of the booksellers (UK)

Until the enactment of the Statute of Anne publishers could pass on their royal grants of copyright to their heirs in perpetuity. [2] When the statutory copyright term provided for by the Statute of Anne began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743–1748), the London booksellers turned to common law and starting a 30-year period known as the battle of the booksellers. The battle of the booksellers saw London booksellers locking horns with the newly emerging Scottish book trade over the right to reprint works falling outside the protection of the Statute of Anne. The Scottish booksellers argued that no common law copyright existed in an author's work. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v. Kincaid (1749–1751) and Tonson v. Collins (1761). [3]

When Donaldson v Beckett reached the House of Lords in 1774 only one Lord, Thomas Lyttelton, spoke in favour of common law copyright. But a majority of the judges who were consulted by the Lords spoke in favour of common law copyright. Lord Camden was most strident in his rejection of the common law copyright, warning the Lords that should they vote in favour of common law copyright, effectively a perpetual copyright, "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". Moreover, he warned that booksellers would then set upon books whatever price they pleased "till the public became as much their slaves, as their own hackney compilers are". He declared that "[t]his perpetuity now contended for is as odious and as selfish as any other, it deserves as much reprobation, and will become as intolerable. Knowledge and science are not things to be bound in such cobweb chains." [4] The House of Lords ultimately ruled that copyright in published works was subject to the durational limits of the statute. The reasoning behind the decision is disputed, though most scholars agree that the House did not rule against common-law copyright.

The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it" (Lord Chief Justice De Grey), but that prior to the Statute of Anne the right to copy was "founded on patents, privileges, Star Chamber Decrees and the bylaws of the Stationers' Company" (Lord Camden). In any event, they determined, the Statute of Anne superseded any common law rights of the author which may have existed prior to the statute. The previous entry here maintained that the Lords found that "parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good," quoting Ronan. [5] However, the use of the phrase "natural rights" is not justified by the historical record. Lord Chief Baron Smythe stated that the Statute of Anne was "a compromise between authors and printers contending for a perpetuity, and those who denied them any statute right," but the Lords in no way accepted that such a common law or 'natural' right of the author in perpetuity ever existed or developed. Lord Chief Justice De Grey saw no evidence of any such right in the courts in the 300 years since the invention of the printing press and charged that "the idea of a common-law right [of the author] in perpetuity was not taken up till after that failure in procuring a new statute for an enlargement of the term." [6]

According to Patterson and Livingston there remains confusion about the nature of copyright ever since the Donaldson case. Copyright has come to be viewed as a natural law right of the author as well as the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that it origin exists only through the copyright statute. [7]

Wheaton v. Peters (US)

In 1834 the Supreme Court ruled in Wheaton v. Peters , a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work. [8]

Common law copyright is also the term used in the United States to refer to most state law copyright claims. In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102 (Subject matter of copyright: In general) or Section 103 (Subject matter of copyright: Compilations and derivative works) except for sound recordings fixed before February 15, 1972. [9] This leaves a sizable amount of work that still falls under a mixture of state statutes and common law copyright. [10]

Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For instance, in the New York State 2005 case, Capitol Records v. Naxos of America , the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common law copyrights. [1] This precedent was partially overruled in 2016 in Flo & Eddie Inc. v. Sirius XM Radio , which determined that the extent of common law copyright in New York did not cover the performance of a sound recording. [11]

Major changes to the federal laws of copyright for pre-1972 sound recordings were made in the 2018 enactment of the Music Modernization Act, including the CLASSICS Act. Such works are now covered by federal copyright law. Federal preemption over the state common law (and conflicting state statutes) implies that federal copyright for those works will now have definite scope and duration, as specified in the federal statutes. Potentially non-preempted common law rights may remain to be identified and addressed as further rulings unfold under the new statute.

See also

Related Research Articles

<span class="mw-page-title-main">Copyright</span> Legal concept regulating rights of a creative work

A copyright is a type of intellectual property that gives the creator of an original work, or another right holder, the exclusive and legally secured right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

<span class="mw-page-title-main">Statute of Anne</span> 1710 legislation in Great Britain regulating copyright

The Statute of Anne, also known as the Copyright Act 1709 or the Copyright Act 1710, was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the government and courts, rather than by private parties.

<span class="mw-page-title-main">History of copyright</span>

The history of copyright starts with early privileges and monopolies granted to printers of books. The British Statute of Anne 1710, full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned", was the first copyright statute. Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright and copyright now covers a wide range of works, including maps, performances, paintings, photographs, sound recordings, motion pictures and computer programs.

<span class="mw-page-title-main">Copyright Act of 1790</span> First U.S. federal legislation on copyright

The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War. The stated object of the act was the "encouragement of learning," and it achieved this by securing authors the "sole right and liberty of printing, reprinting, publishing and vending" the copies of their "maps, charts, and books" for a term of 14 years, with the right to renew for one additional 14-year term should the copyright holder still be alive.

<i>Millar v Taylor</i> English legal case concerning common law copyright

Millar v Taylor (1769) 4 Burr. 2303, 98 ER 201 is an English court decision that held there is a perpetual common law copyright and that no works ever enter the public domain. It represented a major victory for the bookseller monopolies.

Wheaton v. Peters, 33 U.S. 591 (1834), was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright in published works. The Court also declared that there could be no copyright in the Court's own judicial decisions.

Donaldson v Becket (1774) 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep. 257; 17 Cobbett's Parl. Hist. 953 is the ruling by the British House of Lords that held that copyright in published works was not perpetual but was subject to statutory limits. Some scholars disagree on the reasoning behind the decision.

Perpetual copyright, also known as indefinite copyright, is copyright that lasts indefinitely. Perpetual copyright arises either when a copyright has no finite term from outset, or when a copyright's original finite term is perpetually extended. The first of these two scenarios is highly uncommon, as the current laws of all countries with copyright statutes set a standard limit on the duration, based either on the date of creation/publication, or on the date of the creator's death. Exceptions have sometimes been made, however, for unpublished works. Usually, special legislation is required, granting a perpetual copyright to a specific work.

Crown copyright is a type of copyright protection. It subsists in works of the governments of some Commonwealth realms and provides special copyright rules for the Crown, i.e. government departments and (generally) state entities. Each Commonwealth realm has its own Crown copyright regulations. There are therefore no common regulations that apply to all or a number of those countries. There are some considerations being made in Canada, UK, Australia and New Zealand regarding the "reuse of Crown-copyrighted material, through new licences".

<span class="mw-page-title-main">Public domain</span> Works outside the scope of copyright law

The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because no one holds the exclusive rights, anyone can legally use or reference those works without permission.

The Booksellers's Bill was a 1774 bill introduced into the Parliament of Great Britain in the wake of the important copyright case of Donaldson v. Beckett.

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989), is a decision of the United States Supreme Court holding a state anti-plug molding law preempted because it partially duplicated and therefore interfered with the balance Congress had struck by federal patent law. The decision reaffirmed the Supreme Court's earlier decision in Sears, Roebuck & Co. v. Stiffel Co. (1964), which held a state unfair competition law preempted on the same ground.

<span class="mw-page-title-main">Copyright Act 1911</span> United Kingdom legislation

The Copyright Act 1911, also known as the Imperial Copyright Act 1911, was an act of the Parliament of the United Kingdom (UK) which received royal assent on 16 December 1911. The act established copyright law in the UK and the British Empire. The act amended existing UK copyright law, as recommended by a royal commission in 1878 and repealed all previous copyright legislation that had been in force in the UK. The act also implemented changes arising from the first revision of the Berne Convention for the Protection of Literary and Artistic Works in 1908.

<i>Gyles v Wilcox</i> 1740 English court case which set the groundwork for fair use

Gyles v Wilcox (1740) 26 ER 489 was a decision of the Court of Chancery of England that established the doctrine of fair abridgement, which would later evolve into the concept of fair use. The case was heard and the opinion written by Philip Yorke, 1st Earl of Hardwicke, and concerned Fletcher Gyles, a bookseller who had published a copy of Matthew Hale's Pleas of the Crown. Soon after the initial publication, the publishers Wilcox and Nutt hired a writer named Barrow to abridge the book, and repackaged it as Modern Crown Law. Gyles sued for a stay on the book's publishing, claiming his rights under the Statute of Anne had been infringed.

<span class="mw-page-title-main">Public domain in the United States</span>

Works are in the public domain if they are not covered by the intellectual property right known as copyright, or if the intellectual property rights to the works have expired. Works automatically enter the public domain when their copyright has expired. The United States Copyright Office is a federal agency tasked with maintaining copyright records.

Alexander Donaldson was a Scottish bookseller, publisher, and printer. Donaldson was the founding publisher of the weekly newspaper, the Edinburgh Advertiser. He was also known for selling cheap copies of books after their copyright had expired in disregard to London booksellers' opinions on literary property.

<i>Capitol Records, Inc. v. Naxos of America, Inc.</i> US copyright legal case

Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540 (2005), is one of "the most notable case[s]" concerning the copyright status of US-published sound recordings issued before February 15, 1972. In this case, the New York Court of Appeals held that pre-1972 sound recordings, which are not given copyright under U.S. federal law, may be covered under state common law copyright.

Goldstein v. California, 412 U.S. 546 (1973), was a United States Supreme Court case in which the high court ruled that California's state statutes criminalizing record piracy did not violate the Copyright Clause of the United States Constitution.

The copyright law of the United States has a long and complicated history, dating back to colonial times. It was established as federal law with the Copyright Act of 1790. This act was updated many times, including a major revision in 1976.

Hinton v Donaldson was a case by which the Court of Session rejected the claim that copyright in Scots law existed beyond the limited term which had been introduced under the Statute of Anne.

References

  1. 1 2 Capitol Records v. Naxos of America, 2005 NY Slip Of 02570 (NY Ct App April 5, 2005)
  2. ↑ McGreal, Rory (2004). Stealing the Goose: Copyright and learning. The International Review of Research in Open and Distance Learning.
  3. ↑ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 14. ISBN   978-1-84542-282-0.
  4. ↑ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 19. ISBN   978-1-84542-282-0.
  5. ↑ Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing. p. 24. ISBN   978-1-84542-282-0.
  6. ↑ "The History of Copyright: Donaldson v. Beckett". Copyrighthistory.com. Retrieved 2012-07-18.
  7. ↑ Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. pp.  34–35. ISBN   978-0-387-94832-4.
  8. ↑ Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 143. ISBN   978-0-275-98883-8.
  9. ↑ 17 U.S.C.   § 301(c)
  10. ↑ "Protection for Pre-1972 Sound Recordings" . Retrieved 2010-06-25.
  11. ↑ Klepper, David (December 20, 2016). "OWNERS OF 1967 HIT SONG 'HAPPY TOGETHER' LOSE COPYRIGHT CASE". Associated Press. Archived from the original on December 21, 2016. Retrieved December 20, 2016.
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