The nature of the right itself, and the reasons why it should be recognized in law, have from the beginning been the subject of bitter dispute. By some it has been described as a monopoly, by others as a kind of property. Each of these words covers certain assumptions from which the most opposite conclusions have been drawn. As a monopoly it is argued that copyright should be looked upon as a doubtful exception to the general law regulating trade, und should at all events be strictly limited in point of duration. As property, on the other hand, it is claimed that it should be perpetual, There would appear to be no harm in describing copyright either as property or monopoly, if care be taken that the words are not used to cover suppressed arguments as to its proper extent and duration. Historically, and in legal definition, there would appear to be no doubt that copyright, as regulated by statute, is a monopoly. The Parliamentary protection of works of art for the period of fourteen years by the 8 Anne c. 19 and later statutes appears, as Blackstone points out, to have been suggested by the exception in the Statute of Monopolies, 21 James I. c. 3. The object of that statute was to suppress the royal grants of exclusive right to trade in certain articles, and to reassert in relation to all such monopolies the common law of the land. Certain exceptions were made on grounds of public policy, and among others it was allowed that a royal patent of privilege might be granted for fourteen years “to any inventor of a new manufacture for the sole working or making of the same.” Copyright, like patent right, would be covered by the legal definition of a monopoly. It is a mere right to prevent other people from manufacturing certain articles. But objections to monopolies in general do not apply to this particular class of cases, in which the author of a new work in literature or art has the right of preventing others from manufacturing copies thereof and selling them to the public. The rights of persons licensed to sell spirits, to hold theatrical exhibitions, &c., are also of the nature of monopolies, and may be defended on special grounds of public policy. The monopoly of authors and inventors rests on the general sentiment underlying all civilized law, that a man should be protected in the enjoyment of the fruits of his own labour.

The first Copyright Act in England is 8 Anne c. 19. The preamble states that printers, booksellers, and other persons were frequently in the habit of printing, reprinting, and publishing “books and other writings without the •consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.” “For preventing, therefore, such practices for the future, and for the encouragement of learned men to compose and write useful books, it is enacted that the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books in order to print or reprint the same, shall have the sole right and liberty of printing auch book or books for the term of one-and-twenty years, and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee, or assignees, shall have the sole liberty of printing and preprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer.” The penalty for offences against the Act was declared to be the forfeiture of the illicit copies to the true proprietor, and the fine of one penny per sheet, half to the Crown, and half to any person suing for the same. “After the expiration of the said term of fourteen years the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, or their representatives, for another term of fourteen years.” The last provision points to a particular view of the nature of copyright, to which we shall call attention further on. To secure the benefit of the Act registration at Stationers’ Hall was necessary. In section 4 is contained the provision that if any person thought the price of a book “too high and unreasonable,” he might complain to the archbishop of Canterbury, the lord chancellor, the bishop of London, the chiefs of the three courts at Westminster, and the vice-chancellors of the two universities in England, and to the lord president, lord justice general, lord chief baren of the Exchequer, and the rector of the college of Edinburgh in Scotland, who may fix a reasonable price. Nine copies of each book were to be provided for the royal library, the libraries of the universities of Oxford and Cambridge, the four Scotch universities, Sion College, and the faculty of advocates at Edinburgh. The copyright of the universities was not to be prejudiced by the Act.

It was believed for a long time that this statute had not interfered with the rights of authors at common law. Ownership of literary property at common law appears to have been recognized in some earlier statutes. The Licensing, Act, 13 and 14 Car. II. c. 33, prohibited the printing of any work without the consent of the owner on pain of forfeiture, &c. This Act expired in 1679, and attempts to renew it were unsuccessful. The records of the Stationers’ Company show that the purchase and sale of copyrights had become an established usage, aud the los.) of the protection, incidentally afforded by the Licensing Act, was felt as a serious grievance, which ultimately led to the statute of Anne. That statute, as the judges in Millar v. Taylor pointed out, speaks of the ownership of literary property as a known thing. One of the petitions in support of the proposed legislation in 1709 states that by common law a bookseller can recover no more costs than he can prove damages. “Besides,” it continues, “the defendant is always a pauper, and so the plaintiff must lose his costs of suit. No man of substance has been known to offend in this particular; nor will any ever appear in it.” Therefore the confiscation of counterfeit properties is prayed for. And many cases are recorded in which the courts protected copyrights not falling within the periods laid down by the Act. Thus in 1735 the master of the Rolls restrained the printing of an edition of the Whole Duty of Man, published in 1657. In 1739 an injunction was granted by Lord Hardwicke against the publication of Paradise Lost, at the instance of persons claiming under an assignment from Mil ton in 1667. The question, however, was raised in the case of Millar v. Taylor (4 Burrow, 2303) in 1769, in which the plaintiff, who had purchased the copyright of Thomson’s Seasons in 1729, claimed damages for an unlicensed publication thereof by the defendant in 1763. The jury found that before the statute it was usual to purchase from authors the perpetual copyright of their works. Three judges, among whom was Lord Mansfield, decided in favour of the common law right; one was of the contrary opinion. The majority thought that the Act of Anne was not intended to destroy copyright at common law, but merely to protect it more efficiently during the limited periods. Millar v. Taylor, however, was speedily overruled by the case of Donaldson v. Beckett in the House of Lords in 1774. The judges were called upon to state their opinions. A majority (seven to four) were of opinion that the author and his assigns had at common law the sole right of publication in perpetuity. A majority (six to five) were of opinion that this common law right had been taken away by the statute of Anne, and a term of years substituted for the perpetuity. Lord Mansfield did not deliver an opinion, as it was unusual for a peer to support his own judgment on an appeal to the Lords. Lord Camden argued against tho existence of a common law right, and on his motion, seconded by the lord chancellor, the decree of the court below was reversed. The decision appears to have taken the trade by surprise. Many booksellers had purchased copyrights not protected by the statute, and they now petitioned Parliament to be relieved from the consequences of the decision in Donaldson v. Beckett. A bill for this purpose actually passed the House of Commons, but Lord Camden’s influence succeeded in defeating it in the House of Lords. The university copyrights were, however, protected in perpetuity by an Act passed in 1775. The arguments in the cases above mentioned raise the fundamental question whether there can be any property in literary works, and are really arguments for and against the desirability of recognizing the rights on general principles. Lord Camden was the great opponent of copyright, both as a legislator and as a judge. His sentiments may be judged by his answer to the plea that copyright was a reward to men of genius :—“Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who teaze the press with their wretched productions. Fourteen years are too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, and Locke instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did he acoept the miserable pittance as the reward of his labour; he knew that the real price of his work was immortality, and that posterity would pay it.”

The battle of copyright at this time appears to have been fought mainly in the interests of the booksellers, and more particularly of the London booksellers. One member presented petitions from the country booksellers, another from the booksellers of Glasgow against the Booksellers’ Copyright Bill. Burke supported the bill, and Fox opposed it. In both Houses the opponents of the bill denounced the booksellers vehemently. Speaking of the Stationers’ Company, Lord Camden said, “In 1681 we find a by-law for the protection of their own company and their copyrights, which then consisted of all the literature of the kingdom; for they had contrived to get all the copies into their own hands.” Again, owner was the term applied to every holder of copies, and the word author does not occur once in all their entries. “All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set that price upon it their avarice chooses to demand, till the public become their slaves as much as their hackney compilers now are. Instead of salesmen the booksellers of late years have forestalled the market, and become engrossers.” In the discussions which preceded the. last Copyright Act, the interests of the authors are more prominent, but there are still curious traces of the ancient hostility to booksellers. The proceedings both in Donaldson v. Beckett and in the Booksellers’ Copyright Bill are recorded at considerable length in the Parliamentary History, vol. xvii.

By the 41 Geo. III. c. 107 the penalty for infringement of copyright was increased to threepence per sheet, in addition to the forfeiture of the book. The proprietor was to have an action on the case against any person in the United Kingdom, or British dominions in Europe, who should print, reprint, or import without the consent of the proprietor, first had in writing, signed in the presence of two or more credible witnesses, any book or books, or who knowing them to be printed, &c., without the proprietor’s consent should sell, publish, or expose them for sale; the proprietor to have his damages as assessed by the jury, and double costs of suit. A second period of fourteen years was confirmed to the author, should he still be alive at tho end of the first. Further, it was forbidden to import into the United Kingdom for sale books first composed, written, or printed and published within the United Kingdom, and reprinted elsewhere. Another change was made by the Act 54 Geo. III. c. 156, which in substitution for the two periods of fourteen years gave to the author and his assignees copyright for the full term of twenty-eight years from the date of the first publication, “and also, if the author be living at the end of that period, for the residue of his natural life.”

The Copyright Act now in force is the 5 and 6 Vict. c. 45, which repealed the previous Acts on the same subject. The principal clause is the following (§ 3) :—That the copyright in every book which shall after the passing of this Act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assignees; provided always that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book the copyright shall in that case endure for such period of forty-two years; and that the copyright of every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author’s manuscript from which such book shall be first published and his assigns. The benefit of the enlarged period is extended to subsisting copyrights, unless they are the property of an assignee who has acquired them by purchase, in which case the period of copyright will be extended only if the author or his personal representative agree with the proprietor to accept the benefit of the Act. By section 5 the judicial committee of the Privy Council may license the republication of books which the proprietor of the copyright thereof refuses to publish after the death of the author. The sixth section provides for the delivery within certain times of copies of all books published after the passing of the Act, and of all subsequent editions thereof, at the British Museum. And a copy of every book and its subsequent editions must be sent on demand to the following libraries :—The Bodleian at Oxford, the public library at Cambridge, the Library of the Faculty of Advocates in Edinburgh, and that of Trinity College, Dublin. The other libraries entitled to this privilege under the old Acts had been deprived thereof by an Act passed in 1836, and grants from the treasury, calculated on the annual average value of the books they had received, were ordered to be paid to them as compensation. A book of registry is ordered to be kept at Stationers’ Hall for the registration of copyrights, to be open to inspection on payment of one shilling for every entry which shall be searched for or inspected. And the officer of Stationers’ Hall shall give a certified copy of any entry when required, on payment of five shillings; and such certified copies shall be received in evidence in the courts as prima facie proof of proprietorship or assignment of copyright or licence as therein expressed, and, in the case of dramatic or musical pieces, of the right of representation or performance. False entries shall be punished as. misdemeanours. The entry is to record the title of the book, the time of its publication, and the name and place of abode of the publisher and proprietor of copyright. Without making such entry no proprietor can bring an action for infringement of his copyright, but the entry is not otherwise to affect the copyright itself. Any person deeming himself aggrieved by an entry in the registry may complain to one of the superior courts, which will order it to be expunged or varied if necessary A proprietor may bring an action on the case for infringement of his copyright, and the defendant in such an action must give notice of the objections to the plaintiff’s title on which he means to rely. No person except the proprietor of the copyright is allowed to import into the British dominions for sale or hire any book first composed or written or printed and published in the United Kingdom, and reprinted elsewhere, under penalty of forfeiture and a fine of £10. The proprietor of any encyclopaedia, review, magazine, periodical work, or work published in a series of books or parts, who shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication on the terms that the copyright therein shall belong to such proprietor, shall enjoy the term of copyright granted by the Act. But the proprietor may not publish separately any article or review without the author’s consent, nor may the author unless he has reserved the right of separate publication. Where neither party has reserved the right they may publish by agreement, but the author at the end of twenty-eight years may publish separately. Proprietors of periodical works shall be entitled to all the benefits of registration under the Act, on entering in the registry the title, the date of first publication of the first volume or part, and the names of proprietor and publisher. The interpretation clause of the Act defines a book to be every volume, part, or division of a volume, pamphlet sheet of letter-press, sheet of music, map, chart, or plan separately published The Act is not to prejudice the rights of the universities and the colleges of Eton, Westminster, and Winchester.

The Copyright Act was the result of a Parliamentary movement conducted by Mr Sergeant Talfourd and afterwards by Lord Mahon. Talfourd’s bill of 1841 proposed to extend copyright to a period of sixty years after the author’s death. The proposer based his claim on the same grounds as other property rights,—which would of course, as Macaulay pointed out, go to justify a perpetual copyright. He refused to accept any shorter term than sixty years. He was answered by Macaulay in a speech full of brilliant illustration and superficial argument. If copyright is to be regarded, as Macaulay regarded it, as a mere bounty to authors,— a tax imposed upon the public for the encouragement of people to write books,—his opposition to an extended term is not only justified, but capable of being applied to the existence of the right for any period whatever. The system of bounty, or of taxation for the special benefit of any class of citizen, is condemned by the principles of political economy and the practice of modern legislation. But if copyright is defended...