James Boswell?s Decision of the Court of Session ? summarising the Court of Session?s judgment in favour of Donaldson that led to the appeal to the House of Lords for a confirmation and final judgment (Sp Coll BE3-x.21)
Napster, the Pirate Bay, SOPA & PIPA, Kim Dotcom and his Megaupload site, the list goes on? It?s fair to say that questions of copyright, intellectual property, who owns what and what she or he is allowed to do with it are ever-present and increasingly clamorous in our modern networked world. Recent years have seen the battle lines drawn: on one side a proliferation of pressure groups and newly constituted political parties set on securing our ?right? to share information freely; opposing them, the massed ranks of the publishing and creative industries, sectors of commerce and governments set on clamping down on what they see as copyright infringement and ?piracy?. As we all know, there?s nothing new under the sun, and in some respects our current cluttered copyright battlefield can be compared with the middle years of the 18th century, when Scottish and Irish printers and booksellers went to war against the London booktrade over the interpretation of copyright and who was allowed to print what.
At centre stage was the Edinburgh printer and bookseller Alexander Donaldson, the son of a wealthy linen manufacturer and ? depending on your opinion ? either a Scottish patriot and champion of free trade, or an opportunistic pirate, plain and simple. In a landmark legal case, Donaldson v. Becket (2 Brown?s Parl. Cases 129), on 22nd February 1774, the House of Lords ? the highest court in the land ? found in favour of the Scot, changing the legal landscape forever. His champions rejoiced the victory for free trade with bonfires and illuminations in the streets of Edinburgh; the vanquished London booksellers declared their trade ruined, with nearly 200,000 pounds of ?stock? wiped out in one fell swoop. Following the victory, James Boswell, the famous biographer of Samuel Johnson and friend of Donaldson, was moved to write that like Alexander the Great, Donaldson could now?
?sit down and weep that he had no more booksellers to conquer.
The titlepage of a ?pirate? (or not?) copy of Pope printed by the Glasgow University printers Robert and Andrew Foulis (Sp Coll Mu47-c.39)
The matter at issue was the nature of copyright as set out in the world?s first ever copyright law, the 1710 Statute of Anne. The matter was particularly confusing owing to the contrasting legal heritage of England and Scotland, only recently united in political union. The 1710 Act enshrined in statute for the first time a period of legal copyright protection (of 21 years for works already published and a potential 28 years in total for new works) during which any person unauthorised by the copyright holder could be prosecuted for printing a protected title. The confusion and conflict erupted after this restricted term had passed: many Scottish and Irish booksellers understood the copyright period to have lapsed and the titles in question free for anyone to re-print. Consequently, a plethora of cheaply produced reprints of these valuable titles ? Milton, Fielding, Pope, Gay, Swift ? were produced by Scottish printers, both for sale domestically and for sale (at a considerably lower price than previously available) in England and the colonies. The London booksellers (the owners of the copyrights for these texts) were up in arms! They understood copyright to be perpetual and the statutory term to be simply the period during which the specific penalties would apply for abuses set out in the 1710 Act. Often they had paid substantial sums of money to secure the valuable monopoly rights and they were not going to relinquish them without a fight!
A series of legal cases took place over several decades between London booksellers and the so-called pirates, with no fatal blow dealt by one side or the other. English courts, which accepted the notion of text as property, tended to find in favour of the London booktrade. But cases heard in Scotland favoured the ?pirates? since Scottish law tended not to admit the concept of incorporeal rights: a book could be someone?s property but the same could not be said of the text.
Advertisement for one of Donaldson?s works in the Edinburgh Advertiser of 9 July 1765 (Sp Coll Bm20-c.25)
The final decision against perpetual copyright and in favour of the fixed-term period was made by the House of Lords on 22nd February 1774 in Donaldson v. Becket. For the duration of the three week-trial, public interest was intense?? all of the newspapers carried speculation and comment, spectators were turned away from the over-full galleries in their droves while many an important literary figure (including Burke, Garrick and Goldsmith) watched the drama unfold. Much was at stake as was acknowledged by William Woodfall, the editor of the Morning Chronicle:
There hardly exists a person connected in the most distant manner with the press, who will not, in some degree, be affected by the event of this appeal.
Following lengthy speeches for and against, and an advisory vote by the law lords, the House voted to overturn the injunction against Donaldson: from now on, copyright would be limited in term ? the pirates had won!
Special Collections holds a number of interesting items related to the case (pictured) ? please feel free to pop up to level 12 of the library to see any of them. To learn more about this case, the history of copyright and of piracy in general, several interesting works are available, including those by John Feather, Alastair Mann, Ronan Deazley, Mark Rose and Adrian Johns.
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