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The History of Copyright

Written by Michael Coyle on 23 April 2003

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Copyright was initially concerned with preventing the unlawful copying of printed material. The law has changed and emerged to prevent a variety of Copyright infringement incidents from the designs on t-shirts to the content on CD's, the law now encompasses an increasing amount of subject matter, and this increase has been accompanied by the acts considered to be regarded as infringement.

The initial law of Copyright was to prevent purely literary works being infringed, but now includes the performance of musical and dramatic performances, artistic works and many derived rights, which will be discussed later

Copyright started as a licence granted to publishers as an exercise of the Royal Prerogative.

Initially Copyright existed as a property right that existed only at the level of common law, and it lasted in perpetuity. Statutory Copyright was introduced for published works by the Copyright Act 1709, unpublished works received Copyright protection by virtue of common law.

For the next two centuries, Copyright law advanced by means of piecemeal legislation, which gradually increased the types of works protected as the need arose.

The Copyright Act 1911 attempted to unify all the divulgent branches of the existing Acts into one coherent system, and along with this objective, also abolished the existence of common law Copyright.

In 1956, a further Act was passed in order to bring the United Kingdom in line with further developments both on an international scale on from the point of view of technology

The most recent Act was passed in 1988, and encompassed the area of patents and registered designs as well as the traditional view of Copyright.

The initial idea of Copyright as a property law consisted of it being a 'chose in action', that is an intangible property, (tangible property being that which is attached to legal ownership of a physical item i.e. you may own a book by James Herbert, but he owns the rights that correspond with the book's contents)

The 1709 Act (commonly referred to as the 'Statute of Anne') stated that the author of a new book had the sole printing right on that book for 14 years, when this period had expired, the book Could be freely printed. If the author was still alive at the end of this period, a further extension of 14 years was granted. Authors, whose books were already in publication, had a 21-year sole publication right granted to them from April 10th 1710. It was also a requirement that all books were registered with the Stationers Company. A House of Lords decision in the DONALDSON v BECKETT 1794' case, had the effect of destroying common law Copyright in unpublished works, but common law remained in position until 1911 and could now only exist in statute.

The origin of Copyright lay in the Crown's control over the spread of ideas in literary works, this was exercised by restricting the printing of books; the other types of Copyright protected works that are in existence today didn't receive Copyright protection until much later on, logically one would note that the majority in existence today were not protected because they did not exist then, however there were dramatic works and artistic works that were not protected The spur to conferring protection was developing technology that allowed an increasing number of articles to be printed easily and in a way that was also proving to be cost effective The advances in technology was the continued impetus to the evolvement of Copyright law, and in parallel was the growing commercial value of the works themselves, the right of the author was becoming a more important asset to protect

S4 of the Copyright Act 1814 gave the Author the sole right to print a work for 28 years from the first day of publication, and again, if the author was still alive at the end of this period, his sole right of publication was increased to last the rest of his natural life

The duration of Copyright was increased yet again by the time the 1842 act was passed, and was placed this time at the life of the author plus 7 years, or 42 years from the first date of publication whichever was longer. If the work was published posthumously, the period it was covered by Copyright for was 42 years

Another change was also that the requirement of registering at Stationers Hall was no longer compulsory, it was however, still a precondition before any action of infringement could be taken DONALD V BECKETT had a fundamental influence in determining the development of Copyright law in succeeding centuries, because it blatantly highlighted the conflict between common law and statutory law JEFFERYS V BOOSEY' lead to Pollock CB stating that: 'Copyright is altogether an artificial right, not naturally an unnecessarily arising out of the social rules that ought to prevail amongst mankind, but a creature of municipal laws of each country, to be enjoyed for such time and under such regulations as laws of each state may direct', how different the situation is today, the 'municipal laws' are merging as countries abide by each others laws.

The performance of dramatic work was not classed as a restricted act until the Copyright Act 1933 was passed, this was also known as the Bulmer Lyttons Act, and gave an exclusive right of public performance for a period of 28 years, after this period; there was a reversionary length of time granted to the author for the residue of his life.

The Copyright Act 1842 provided similar protection for the performance of musical works, and the period granted was extended to bring it into line with the protection offered to literary works. The range of works protected was greatly increased, however many different statutes were passed with no consideration to creating a unified system.

A Royal Commission was formed in 1875, to solve the problems of the disjointed laws, the report was published in 1978 and stated: -

"The law is wholly destitute in any sort of arrangement, incomplete, often obscure, and even when it is intelligible upon long study, it is in many parts so ill-expressed that no-one who does not give such study to it can expect to understand it".

The domestic complexities of Copyright law spread to an international level, and the United Kingdom needed to secure reciprocal copyright protection from other countries.

1886 saw the first international treaty on Copyright law. The Berne Convention was a multinational agreement that enabled reciprocal Copyright protection to be secured in all member states so long as the author is connected with a member state or the work was first published in a member state.

The United Kingdom was a signatory to this convention and the international Copyright Act was passed in Great Britain in 1886 in order to fulfil obligations to foreign authors that arose upon the UK ratifying the Berne Convention on September 8 1887

The Berne Convention was first revised in 1908 (in Berne again!), and a committee was appointed to report to Parliament on any necessary changes that arose to give domestic effect to the revised convention. As a result, the committee said that the existing Act should be revised and so in 191 1, an Act was passed that repealed all previous Copyright legislation that had been in force in the UK.

The 1911 Copyright Act came into force on July 1 1912, the most significant measure it introduced was the abolition of common law Copyright; protection could now only be conferred by statute. Copyright also existed in both published and unpublished works, as the Act stated that copyright arose in the act of creation, not the act of publishing. The duration of Copyright protection was also extended to the life of the author plus 50 years, and widened the scope of Acts to be considered for infringement. Section 19(1) gave producers of sound recordings an exclusive right to prevent others reproducing their recordings, or playing them in public - GRAMOPHONE CO LTD V STEPREN CAWARDINE.

Literary, dramatic and musical works could be infringed by the making of a film or other mechanical performance incorporating the above vessels of creation (section 1(2)(d)). The Beme Convention was further revised in 1928 (this time in Rome), and again, in Brussels in 1948 these further revisions strengthened the position of the author in the member states of the convention, but did not lead to further Copyright legislation being passed in the form of Acts of Parliament in the United Kingdom The United States was not a signatory to the Beme Convention, nor to its subsequent revisions, and this left it isolated from any international agreement for the reciprocal granting of copyright protection - there were temporary agreements during the two world wars, but these were allowed to lapse. This was not an ideal situation when you consider the Commercial Capital United 'Gramophone Co Ltd v Stephen Cawardine and Co (1943) Where there is the finance the technology advances, as we have seen, this encourages new and inventive creations that require protection, Ratified countries of other treaties of course required protection in such an important country as the United States as their creators would be the ones who lost out, UNESCO organised a new convention to bring the United States into line on the International front; the treaty that was proposed aimed to guarantee reciprocal treatment, but on terms less stringent than those required by the Beme Convention, for example, the minimum term of protection was the life of the author plus 25 years, or if the country already had a measured term of protection from the date of publication, it had to amount to at least 25 years.

This new agreement was called the Universal Copyright Convention (UCC) and was signed in Geneva in 1952. There were no provisions for authors moral rights - this was one of the major obstacles to the United States signing up to the Berne Convention - the United States signed up to the UCC and was one of the original signatories. The United States required all works to be registered therefore Copyright was vested - in order to accommodate this the UCC said if the work bore the Copyright symbol, with the name of the Copyright owner and the first year of publication, it would be deemed as registration, as all the requirements had been satisfied (Article 111 (1)). The origin of the Copyright symbol (that initially originated on English works), allowed for the works to receive reciprocal treatment.

The important difference between the UCC and the Beme Convention concerns works that have fallen into the public domain because the Copyright has expired; under the UCC once Copyright has been lost, it cannot acquire protection retrospectively, should its country of origin subsequently ratify the UCC, under Berne, this retrospective protection does occur. The United Kingdom was also a founding signatory of the UCC and so another parliamentary committee was appointed to consider whether or not any changes were needed in the existing domestic legislation to comply with increasing international obligations. The committee also considered the effect of new technology on Copyright works, it was known as the Gregory Committee after its chairman, and reported to Parliament. The report was published in 1952 and as a result the 1956 Copyright Act was passed.

This Act came into force on June 1 195 7, this repealed the few remaining acts of copyright that remained despite the 1911 Act, and indeed, the entire 1911 Act, bar sections 15, 34 and 37, were repealed. Three new types of work on which Copyright could subsist were introduced - cinematograph films, broadcasts and the typographical arrangements of published editions.

The arrangement of this Act was such that original works such as literary, dramatic, artistic and musical works appeared in Part 1, whilst derivative works, such as sound recordings, broadcasts, cable programmes and so on were covered in Part 2; derivative is for example a film where the script is based on a book, or the recording of a concert where the music is covered by Copyright. Derivative works are one removed from the central creative work.

In modern day, this distinction is becoming increasingly outdated, films, for example, are seen as works of merit in their own right. The principle change in the Copyright Act 1956 was brought about by the Design Act 1968, this was intended to deal with the position of Copyright in design drawings for is mass produced items.

The development of smaller more sensitive recording equipment has allowed the unauthorised recording or musical and film creations to be easily carried out. Illicit recordings can be sold to the general public at a large profit to the person who made the recording - this is often called bootlegging - and a great financial loss to the composer whose creation it is in the first place.

Protection was offered by the Dramatic and Musical Performers Protection Act 1925, which offered some limited sanctions to these creative groups further strengthened by the Dramatic and Musical Performers Protection Act 1958, Performers Protection Act 1963 and Performers Protection Act 1972. The recording industry complained that none of these provided sufficient protection, and this was indeed one of the major commercial pressures that led to the repeal of the Copyright Act 1956. Other issues that needed consideration were computers and the software and databases that accompany them along with major advances in audio and visual reproduction and transmission.

1973 saw another committee appointment which also considered recent international developments - the Beme Convention was further revised in Stockholm in 1967, and again in Paris in 1971, and at the same time the UCC was revised. The Committee submitted its report in 1977, and is known as the Whitford Report after the Judge who presided over its preparation.

There were two important papers presented to Parliament before the full report was presented: -

'The Reform of Law Relating to Copyright, Designs and Performers Protection' 1981

'Intellectual Property Innovation' 1986

As a result of both the papers and the "Whitford Report, the 1988 Copyright, Designs and Patents Act was passed. This forms the current framework for today's legislation and repealed the 1956 Copyright Act, the Copyright Computer Software Act 1985 and the Performers Protection Acts 1958163172. The new provisions provided by this Act came into force on August I 1989.

The 1988 Act introduced a number of new rights, such as rental rights in respect of sound recordings, films and computer programmes (section 18(3)); sections 77-89 introduced a comprehensive system of moral rights for authors. The issue of Industrial Designs which had troubled both the courts and parliament for many years resulted in the creation of a new property right called the design right.

Although this is now the principal legislation covering Copyright, it is not the sole source to be consulted, and certain areas have been amended by the Broadcasting Act 1990.

Intellectual Property issues continue to arise within the European Union and the International market, the United Kingdom for example, officially revised the Beme Convention (Paris 1971) with effect from January 2nd 1990.

The European Union is continually struggling to cope with the wishes of its member states, as well as remaining in line with international thinking and the new technological state society is finding itself in It is widely accepted that Copyright as a law will never be fully complete, and can only ever exist as a continually evolving law, adapting to the new challenges that face it, and the governments that create the legislation.

The Law was as year 2000 and the Copyright Directive has been accepted by the EU and is due to become UK law at the end of this year.

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