Rethinking Copyright

Rethinking Copyright

History, Theory, Language

Ronan Deazley

This book provides the reader with a critical insight into the history and theory of copyright within contemporary legal and cultural discourse. It exposes as myth the orthodox history of the development of copyright law in eighteenth-century Britain and explores the way in which that myth became entrenched throughout the nineteenth and early twentieth centuries. To this historical analysis are added two theoretical approaches to copyright not otherwise found in mainstream contemporary texts. Rethinking Copyright introduces the reader to copyright through the prism of the public domain before turning to the question as to how best to locate copyright within the parameters of traditional property discourse. Moreover, underpinning these various historical and theoretical strands, the book explores the constitutive power of legal writing and the place of rhetoric in framing and determining contemporary copyright policy and discourse.

Chapter 2: History II: 1774–1854

Ronan Deazley

Subjects: law - academic, intellectual property law


Two years after the House of Lords handed down their seminal decision in Donaldson v. Becket (1774) (Donaldson),1 reversing Millar v. Taylor (1768) (Millar),2 Capel Lofft, a young barrister attached to Lincolns Inns, published his first, and only, collection of cases (which cases were principally decided in the King’s Bench).3 Among the cases contained within Lofft’s volume is Hawkesworth v. Newbery (1774), concerning an abridgement of Dr Hawkesworth’s Voyages by the defendant. The question for Lord Chancellor Apsley was whether Newbery, in producing his abridged text, had infringed the copyright in the original work. Lofft records the decision as follows: The Lord Chancellor was of opinion that this abridgement of the work was not any violation of the author’s property whereon to ground an injunction. That to constitute a true and proper abridgement of a work the whole must be preserved in its sense: And then the act of abridgement is an act of understanding, employed in carrying a large work into a smaller corpus, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgement in the nature of a new and meritorious work. That this had been done by Mr. Newbery, whose edition might be read in a fourth part of the time, and all the substance preserved, and conveyed in language as good or better than the original, and in a more agreeable and useful manner. That he had consulted Mr. Justice Blackstone whose...

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