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LETTER LXXIII.: The Law of Copyright. - David Hume, Letters of David Hume to William Strahan [1756]

Edition used:

Letters of David Hume to William Strahan, ed. G. Birkbeck Hill (Oxford: Clarendon Press, 1888).

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LETTER LXXIII.

The Law of Copyright.

  • [Spring of 1774]

Dear Sir

I have writ you an ostensible Letter on the Subject of literary Property, which contains my real Sentiments, so far as it goes. However, I shall tell you the truth; I do not forsee any such bad Consequences as you mention from laying the Property open1 . The Italians2 and French have more pompous3 Editions of their Classics since the Expiration of the Privileges than any we have of ours: And at least, every Bookseller, who prints a Book, will endeavour to make it as compleat and correct as he can. But when I said, that I thought Lord Mansfield's Decision founded on a vain Subtlely4 , I did not consider the matter in that Light, but only on a simple Consideration of the Act of Q. Anne. The Essay5 I mentioned is not so considerable as to [be] printed apart; yet any pyrated Edition woud be reckond incompleat that did not contain it.

Yours

D. H.

[1]Note 1. On Feb. 22, 1774, a decision was given in the House of Lords on the question of literary property or copyright, by which, to use the words of the Annual Register (XVII. i. 95), ‘Near £200,000 worth of what was honestly purchased at public sale, and which was yesterday thought property, is now reduced to nothing.... The English booksellers have now no other security in future for any literary purchase they may make but the statute of the 8th of Queen Anne, which secures to the author's assigns an exclusive property for 14 years, to revert again to the author, and vest in him for 14 years more.’ Boswell tells how an Edinburgh bookseller, Alexander Donaldson by name, ‘had for some years opened a shop in London, and sold his cheap editions of the most popular English books, in defiance of the supposed common-law right of Literary Property.’ Boswell's Johnson, i. 437. How strictly this copyright had been maintained is shown in the judgment pronounced by Lord Camden, who says:—‘Shakespeare's works, which he left carelessly behind him in town when he retired from it, were surely given to the public if ever author's were; but two prompters, or players behind the scenes, laid hold of them, and the present proprietors pretend to derive that copy from them, for which the author himself never received a farthing.’ Parl. Hist. xvii. 1000. William Johnston, a retired bookseller, in the evidence which he gave two or three weeks later before a Committee of the House of Commons, said that he had held in whole or in part the copyright of Camden's Britannia, Dryden's Works, Locke's Works, and Steele's Tatler, and that, by the threat of filing a bill in Chancery, he had restrained a Coventry bookseller from publishing an edition of The Pilgrim's Progress. Ib. p. 1082. Lord Camden, who as Chancellor for some years enjoyed an income which was reckoned at £13,000 a year1 , took a very lofty view of the position of authors. ‘Glory (he said) 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 is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letterpress.’ Ib. p. 1000. Dunning (afterwards Lord Ashburton), ‘the great lawyer,’ as Johnson called him2 , in his speech for the booksellers had said:—‘Authors formerly, when there were few readers, might get but small prices for their labour; that however had not of late years been the case. Hume's History of England and Dr. Robertson's History of Scotland had been amply paid for.... How was this difference to be accounted for? Not from any uncommon generosity in the booksellers, not from any superiority in point of merit in the books, but from the idea of a common-law right prevailing, and from that idea being established by the determination of the Court of King's Bench in the case of Millar v. Taylor.’ Ib. p. 967. I suspect that the Whig ex-Chancellor Camden, when he sneered at those authors ‘who traffic with a dirty bookseller,’ aimed a blow, which was not too covert to be seen, at the Tory historian, David Hume, and perhaps at the Tory King's-Printer, William Strahan.

The booksellers and authors had been ‘hoist with their own petar.’ Up to the passing of the statute of Anne they had by common law a perpetual copyright. That Act was passed, not to limit their right, but to give them additional powers for enforcing it. In ‘one of the Cases given to the Members in 1709 in support of their application for a bill,’ it was stated:—‘...By common law a bookseller can recover no more costs than he can prove damage: But it is impossible for him to prove the tenth, nay perhaps the hundredth part of the damage he suffers; because a thousand counterfeit copies may be dispersed into as many different hands all over the kingdom, and he not be able to prove the sale of ten. Besides, the defendant is always a pauper; and so the plaintiff must lose his costs of suit. Therefore the only remedy by the common law is to confine a beggar to the Rules of the King's Bench or Fleet; and there he will continue the evil practice with impunity. We therefore pray that confiscation of counterfeit copies be one of the penalties to be inflicted on offenders.’ Burrow's Reports of Cases in the Court of King's Bench, iv. 2318. In the preamble to the Act we read:—‘Whereas printers ... have of late frequently taken the liberty of printing ... 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,’ &c. Statutes at Large, xii. 82.

Blackstone, in the first edition of the second volume of his Commentaries published in 1766, says:—‘But exclusive of such copyright as may subsist by the rules of the common law, the statute 8 Anne c. 19 hath protected by additional penalties the property of authors and their assigns for the term of fourteen years; and hath directed that, if at the end of that term the author himself be living, the right shall then return to him for another term of the same duration.’ ii. 407.

The booksellers do not seem to have made much use of the new Act, but to have had recourse, as before, to the Court of Chancery. William Johnston, in his examination before the Committee, ‘being asked why it was not the custom of those who are possessed of copyright to enter them in the books of the Stationers’ Company? He said, he could only answer for himself, that he never thought the penalties prescribed by the Act of the eighth of Queen Anne were worth contending for, as a much shorter and more complete relief might be had by filing a bill in Chancery.’ Parl. Hist. xvii. 1085.

It was not till the year 1769 that in the case of Andrew Millar v. Robert Taylor ‘the old and often litigated question concerning literary property received a determination in the Court of King's Bench.’ Burrow's Reports, iv. 2303. Taylor had reprinted Thomson's Seasons, of which Millar had bought the various copyrights between the years 1727–9. Millar laid his damages at £200. The Jury brought in a special verdict, assessing the damages at one shilling with forty shillings cost. The Lord Chief Justice Mansfield and Justices Willes and Aston held that the perpetual copyright had not been taken away by the Statute of Anne. Justice Yates differed from them. Lord Mansfield prefaced his judgment by a statement which may well excite our wonder. He had now presided over his Court for more than twelve years, yet he was able to say:—‘This is the first instance of a final difference of opinion in this Court, since I sat here. Every order, rule, judgment and opinion has hitherto been unanimous.’ ‘This,’ says the Editor, ‘gives weight and dispatch to the decisions, certainty to the law, and infinite satisfaction to the suitors. And the effect is seen by that immense business which flows from all parts into this channel; and which we who have long known Westminster Hall behold with astonishment.’ Burrow's Reports, iv. 2395.

By this decision the claim of the booksellers for a perpetual copyright seemed to be established; but the matter came before the House of Lords in the case of Donaldsons v. Becket and others, upon an appeal from a decree of the Court of Chancery founded upon this judgment. Ib. p. 2408. There they found to their dismay that the very weapon which their predecessors had forged against their enemies threatened them now with what in their first alarm seemed almost a deadly wound. They at once began to take measures to protect their property. On Feb. 28 they presented a petition to the House of Commons praying for relief. A Committee was appointed to take evidence, and on their report leave to bring in a Copy-right Bill was carried by 54 to 16. Burke was a teller for the majority and Fox for the minority. The smallness of the numbers seems to show great indifference to literature on the part of the members. The Bill was carried through the Commons, the highest total number on any division being 83, and Fox being persistent and violent in his opposition. It was lost in the Lords by 21 to 11. Parl. Hist. xvii. 1077, 1089, 1402. Burke, in one of his speeches, said:—‘The learned advocate has told us that glory is the only reward sought by the Scotch booksellers; let them have their glory,—let the petitioners have [their] property—we will not quarrel about terms.’ Ib. p. 1102. Very likely the ‘ostensible letter’ of which Hume speaks is the one mentioned by Mr. Mansfield, one of the counsel for the London booksellers; who at the bar of the House of Commons, on May 13, said:—‘I have by me letters of Mr. Hume, Dr. Robertson, &c., containing the warmest wishes to the petitioners, lamenting the late decision of the House of Peers as fatal to literature, and hoping that the booksellers might get speedy relief.’ Ib.1098.

In the Act of Anne there was a provision which I have not seen anywhere noticed. A Court of Arbitration was established in case ‘any bookseller shall set a price upon any book as shall be conceived by any person to be too high and unreasonable.’ The Court was to be composed of the Archbishop of Canterbury, Lord Chancellor, Bishop of London, the two Chief Justices, Chief Baron, Vice-Chancellors of Oxford and Cambridge, Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and the Rector of the College of Edinburgh. They were to have ‘full power to limit and settle the price of books from time to time, according to the best of their judgments, and as to them shall seem just and reasonable.’ Statutes at Large, xii. 84. This provision was repealed by 12 G. II. c. 36. Burrow's Reports, iv. 2390.

[2]Note 2. Baretti in his Account of Manners and Customs of Italy, published in 1768, says:—‘It is the general custom for our authors to make a present of their works to booksellers, who in return scarcely give a few copies when printed.... Our learned stare when they are told that in England there are numerous writers who get their bread by their productions only.’ vol. i. p. 236. He was, he said, ‘the first man that ever received copy-money in Italy.’ Boswell's Johnson, iii. 162.

[3]Note 3. Pompous still retained the meaning of ‘splendid, magnificent, grand’; to adopt Johnson's definition. In his Rasselas (Clarendon Press ed. p. 110) he says:—‘The most pompous monument of Egyptian greatness ... are the Pyramids.’

[4]Note 4. Hume must be speaking of the judgment delivered by Lord Mansfield in the Court of King's Bench in the case of Millar v. Taylor, for he declined speaking on the appeal; ‘it being very unusual, from reasons of delicacy, for a peer to support his own judgment upon an appeal to the House of Lords.’ Burrow's Reports, iv. 2417. Lord Camden, in attacking the arguments maintained on the side of the booksellers, talks of the ‘variety of subtle reasoning and metaphysical refinements, by which they have endeavoured to squeeze out the spirit of the common law from premises in which it could not possibly have existence.’ Parl. Hist. xvii. 992. He adds:—‘I pass over the flimsy supposition of an implied contract between the bookseller who sells, and the public which buys the printed copy; it is a notion as unmeaning in itself as it is void of a legal foundation.’ Ib. p. 1000. There had been ‘subtle reasoning and metaphysical refinements’ on both sides. Mr. Justice Aston said:—‘It has been ingeniously, metaphysically, and subtilly argued on the part of the Defendant, “That there is a want of property in the thing itself.”’ Burrow's Reports, iv. 2336. Mr. Justice Yates had asked:—‘Now where are the indicia or distinguishing marks of ideas? What distinguishing marks can a man fix upon a set of intellectual ideas, so as to call himself the proprietor of them? They have no ear-marks upon them; no tokens of a particular proprietor.’ Ib. p. 2366. To this Lord Mansfield replied:—‘If the copy belongs to an Author after publication, it certainly belonged to him before. But if it does not belong to him after, where is the Common Law to be found which says “there is such a property before”? All the metaphysical subtilties from the nature of the thing may be equally objected to the property before. It is incorporeal: It relates to ideas detached from any physical existence. There are no indicia: Another may have had the same thoughts upon the same subject, and expressed them in the same language verbatim,’ &c. Ib. p. 2397. Johnson, who all along held that there was no such common-law right of literary property as was supposed, nevertheless ‘was very angry that the booksellers of London, for whom he uniformly professed much regard, should suffer from an invasion of what they had ever considered to be secure; and he was loud and violent against Mr. Donaldson. “He is a fellow who takes advantage of the law to injure his brethren; for, notwithstanding that the statute secures only fourteen years of exclusive right, it has always been understood by the trade, that he who buys the copyright of a book from the author obtains a perpetual property; and upon that belief numberless bargains are made to transfer that property after the expiration of the statutory term.”’ Boswell's Johnson, i. 437. The London booksellers protected themselves by an ‘honorary copyright, which,’ wrote Boswell in 1791, ‘is still preserved among them by mutual compact.’ Ib. iii. 370.

[5]Note 5. See post, where Hume in his letter of June 8, 1776, says:—‘Two posts ago I sent you a Copy of the small Essay which I mentioned.’ No doubt this Essay is the one entitled Of the Origin of Government, which first appears in the edition of 1777. Hume's Philosophical Works, ed. 1854, iii. 34.

[1]Note 1. On Feb. 22, 1774, a decision was given in the House of Lords on the question of literary property or copyright, by which, to use the words of the Annual Register (XVII. i. 95), ‘Near £200,000 worth of what was honestly purchased at public sale, and which was yesterday thought property, is now reduced to nothing.... The English booksellers have now no other security in future for any literary purchase they may make but the statute of the 8th of Queen Anne, which secures to the author's assigns an exclusive property for 14 years, to revert again to the author, and vest in him for 14 years more.’ Boswell tells how an Edinburgh bookseller, Alexander Donaldson by name, ‘had for some years opened a shop in London, and sold his cheap editions of the most popular English books, in defiance of the supposed common-law right of Literary Property.’ Boswell's Johnson, i. 437. How strictly this copyright had been maintained is shown in the judgment pronounced by Lord Camden, who says:—‘Shakespeare's works, which he left carelessly behind him in town when he retired from it, were surely given to the public if ever author's were; but two prompters, or players behind the scenes, laid hold of them, and the present proprietors pretend to derive that copy from them, for which the author himself never received a farthing.’ Parl. Hist. xvii. 1000. William Johnston, a retired bookseller, in the evidence which he gave two or three weeks later before a Committee of the House of Commons, said that he had held in whole or in part the copyright of Camden's Britannia, Dryden's Works, Locke's Works, and Steele's Tatler, and that, by the threat of filing a bill in Chancery, he had restrained a Coventry bookseller from publishing an edition of The Pilgrim's Progress. Ib. p. 1082. Lord Camden, who as Chancellor for some years enjoyed an income which was reckoned at £13,000 a year1 , took a very lofty view of the position of authors. ‘Glory (he said) 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 is too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke instructed and delighted the world; it would be unworthy such men to traffic with a dirty bookseller for so much a sheet of a letterpress.’ Ib. p. 1000. Dunning (afterwards Lord Ashburton), ‘the great lawyer,’ as Johnson called him2 , in his speech for the booksellers had said:—‘Authors formerly, when there were few readers, might get but small prices for their labour; that however had not of late years been the case. Hume's History of England and Dr. Robertson's History of Scotland had been amply paid for.... How was this difference to be accounted for? Not from any uncommon generosity in the booksellers, not from any superiority in point of merit in the books, but from the idea of a common-law right prevailing, and from that idea being established by the determination of the Court of King's Bench in the case of Millar v. Taylor.’ Ib. p. 967. I suspect that the Whig ex-Chancellor Camden, when he sneered at those authors ‘who traffic with a dirty bookseller,’ aimed a blow, which was not too covert to be seen, at the Tory historian, David Hume, and perhaps at the Tory King's-Printer, William Strahan.

The booksellers and authors had been ‘hoist with their own petar.’ Up to the passing of the statute of Anne they had by common law a perpetual copyright. That Act was passed, not to limit their right, but to give them additional powers for enforcing it. In ‘one of the Cases given to the Members in 1709 in support of their application for a bill,’ it was stated:—‘...By common law a bookseller can recover no more costs than he can prove damage: But it is impossible for him to prove the tenth, nay perhaps the hundredth part of the damage he suffers; because a thousand counterfeit copies may be dispersed into as many different hands all over the kingdom, and he not be able to prove the sale of ten. Besides, the defendant is always a pauper; and so the plaintiff must lose his costs of suit. Therefore the only remedy by the common law is to confine a beggar to the Rules of the King's Bench or Fleet; and there he will continue the evil practice with impunity. We therefore pray that confiscation of counterfeit copies be one of the penalties to be inflicted on offenders.’ Burrow's Reports of Cases in the Court of King's Bench, iv. 2318. In the preamble to the Act we read:—‘Whereas printers ... have of late frequently taken the liberty of printing ... 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,’ &c. Statutes at Large, xii. 82.

Blackstone, in the first edition of the second volume of his Commentaries published in 1766, says:—‘But exclusive of such copyright as may subsist by the rules of the common law, the statute 8 Anne c. 19 hath protected by additional penalties the property of authors and their assigns for the term of fourteen years; and hath directed that, if at the end of that term the author himself be living, the right shall then return to him for another term of the same duration.’ ii. 407.

The booksellers do not seem to have made much use of the new Act, but to have had recourse, as before, to the Court of Chancery. William Johnston, in his examination before the Committee, ‘being asked why it was not the custom of those who are possessed of copyright to enter them in the books of the Stationers’ Company? He said, he could only answer for himself, that he never thought the penalties prescribed by the Act of the eighth of Queen Anne were worth contending for, as a much shorter and more complete relief might be had by filing a bill in Chancery.’ Parl. Hist. xvii. 1085.

It was not till the year 1769 that in the case of Andrew Millar v. Robert Taylor ‘the old and often litigated question concerning literary property received a determination in the Court of King's Bench.’ Burrow's Reports, iv. 2303. Taylor had reprinted Thomson's Seasons, of which Millar had bought the various copyrights between the years 1727–9. Millar laid his damages at £200. The Jury brought in a special verdict, assessing the damages at one shilling with forty shillings cost. The Lord Chief Justice Mansfield and Justices Willes and Aston held that the perpetual copyright had not been taken away by the Statute of Anne. Justice Yates differed from them. Lord Mansfield prefaced his judgment by a statement which may well excite our wonder. He had now presided over his Court for more than twelve years, yet he was able to say:—‘This is the first instance of a final difference of opinion in this Court, since I sat here. Every order, rule, judgment and opinion has hitherto been unanimous.’ ‘This,’ says the Editor, ‘gives weight and dispatch to the decisions, certainty to the law, and infinite satisfaction to the suitors. And the effect is seen by that immense business which flows from all parts into this channel; and which we who have long known Westminster Hall behold with astonishment.’ Burrow's Reports, iv. 2395.

By this decision the claim of the booksellers for a perpetual copyright seemed to be established; but the matter came before the House of Lords in the case of Donaldsons v. Becket and others, upon an appeal from a decree of the Court of Chancery founded upon this judgment. Ib. p. 2408. There they found to their dismay that the very weapon which their predecessors had forged against their enemies threatened them now with what in their first alarm seemed almost a deadly wound. They at once began to take measures to protect their property. On Feb. 28 they presented a petition to the House of Commons praying for relief. A Committee was appointed to take evidence, and on their report leave to bring in a Copy-right Bill was carried by 54 to 16. Burke was a teller for the majority and Fox for the minority. The smallness of the numbers seems to show great indifference to literature on the part of the members. The Bill was carried through the Commons, the highest total number on any division being 83, and Fox being persistent and violent in his opposition. It was lost in the Lords by 21 to 11. Parl. Hist. xvii. 1077, 1089, 1402. Burke, in one of his speeches, said:—‘The learned advocate has told us that glory is the only reward sought by the Scotch booksellers; let them have their glory,—let the petitioners have [their] property—we will not quarrel about terms.’ Ib. p. 1102. Very likely the ‘ostensible letter’ of which Hume speaks is the one mentioned by Mr. Mansfield, one of the counsel for the London booksellers; who at the bar of the House of Commons, on May 13, said:—‘I have by me letters of Mr. Hume, Dr. Robertson, &c., containing the warmest wishes to the petitioners, lamenting the late decision of the House of Peers as fatal to literature, and hoping that the booksellers might get speedy relief.’ Ib.1098.

In the Act of Anne there was a provision which I have not seen anywhere noticed. A Court of Arbitration was established in case ‘any bookseller shall set a price upon any book as shall be conceived by any person to be too high and unreasonable.’ The Court was to be composed of the Archbishop of Canterbury, Lord Chancellor, Bishop of London, the two Chief Justices, Chief Baron, Vice-Chancellors of Oxford and Cambridge, Lord President of the Sessions, Lord Justice General, Lord Chief Baron, and the Rector of the College of Edinburgh. They were to have ‘full power to limit and settle the price of books from time to time, according to the best of their judgments, and as to them shall seem just and reasonable.’ Statutes at Large, xii. 84. This provision was repealed by 12 G. II. c. 36. Burrow's Reports, iv. 2390.

[1]Walpole's Memoirs of George III, iv. 45.

[2]Boswell's Johnson, iii. 128.