THE CASE

BETWEEN

THE PUBLIC LIBRARIES

AND

THE BOOKSELLERS.

IN entering upon the consideration of this very important ques

tion, "affecting so great a quantity of interest," it is essentially necessary to revert to the state of literary property previous to the year 1709. From the first introduction of the art of printing into England, until that period, there had been no legislative enactment on the subject; but it had been always understood and acted upon, that the copyright of every author or proprietor was vested in him in perpetuity. As the booksellers and printers were, in former times, almost all members of the Stationers' Company, which was incorporated in 1556, by charter; a plan was devised, for the general benefit and convenience, of keeping a register at their Hall, in which was entered the title of every book, when first published, with the name of the proprietor or proprietors, and also the transfers of copyright, which were from time to time made. By the bye laws of the Company, severe fines were levied on any of the members acting in violation of these rights. In 1684, King Charles II. granted a new charter to that Company, of which the 37th clause is as follows:

"Whereas divers brethren and members of the said Company of master, and keepers or wardens, and commonalty, of the mystery or art of Stationers of the City of London, have great part of their estates in books and copies, and for the space of one hundred

years and upwards now last past, and constantly down to the present time, have had a public register kept in their common hall for the entry and description of books and copies (not granted by our letters patents or any of our royal predecessors) regarding their being printed by or for the members, and brethren, and freemen, of the same Company: We, therefore, willing and desiring to confirm and establish every brother, and member, and freeman, of the said Company, in their just rights and properties, do well approve of the foresaid register; and of our special grace, certain knowledge, and mere motion, we for ourselves, our heirs, and successors, do give and grant by these letters patents to the foresaid master, and keepers or wardens, and commonalty, of the mystery or art of Stationers of the City of London, that every brother, member, and freeman, of the same Company of Stationers, whonow is, or shall hereafter be, a brother, member, and freeman, of the same Company, and shall be, and shall become a proprietor of any book or copy, either by gift or purchase from the author, or afterwards from such other person, who has or shall have the right and power of giving, granting, or selling, of the same, and shall duly enter the same book or copy in the said register of the Company of Stationers, to him, or to them, as his or their copy or copies, that then such person shall have and enjoy the sole right, power, privilege, and authority, of printing such book or copy, as in that case has been usual heretofore, for the space of one hundred years and upwards, strictly forbidding, prohibiting, and commanding, all our subjects, and of our heirs and successors, that they, or any of them, at any time hereafter do not print, or cause to be printed, any book or copy, or part of any book or copy, nor import, or cause to be imported, nor sew, bind, sell, or expose to sale, any book or copy, or the part of any book or copy, printed contrary to these our letters patents."

By the 2nd of William and Mary this charter was repealed, in common with a number of others, on account of some arbitrary regulations materially affecting the liberty of the subject. Between that time (1691) and the year 1709, the proprietors of books appear to have been very much annoyed and injured by the frequent invasion of their copyrights. They applied to Parliament, in 1703 and 1706, for an Act to protect their property from such violaVOL. II. Pam. No. IV. Ꮓ

tion; but did not succeed until the year 1709, when the Act was passed, upon one of the clauses of which the Universities and other public libraries have grounded the claim, which has recently been decided by the Court of King's Bench to be well founded. The reasons of the booksellers for desiring an Act, in which a new security was introduced for the protection of their property, were stated in one of their cases as follow: "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, nor, perhaps, the hundredth part of the damage he suffers; because one 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 he 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 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."

After this preliminary statement, it may be useful to give a summary of the preamble and different clauses of this Act, connecting them with the two subsequent statutes, and stating the construction which has always been put upon them, from that day to this, by all the parties interested, and the reasons which appear to justify such construction.

The title of the Act is, "An Act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned." The preamble states: "Whereas printers, booksellers, and other persons, have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, 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, be it enacted," &c.

Sect. 1. From the 10th of April, 1710, the author or proprietor of any book already printed, shall have sole right of printing such book for the term of twenty-one years; and the author or proprietor of any book not printed or published, shall have sole liberty of printing such book for the term of fourteen years from the day of publication. If any other bookseller, printer, &c. shall print or reprint such books without consent of proprietor, or shall sell, publish, &c. such books, without such consent, they shall forfeit such books, and farther shall forfeit one penny for every sheet found in his custody; one moiety thereof to the Queen, the other to any person suing for the same. By the Act of 41 Geo. III. this forfeiture is increased to three-pence for every sheet.

Sect. 2. In order to prevent persons from ignorance offending against the Act, and to ascertain the property, and the consent of the proprietors to the printing, &c. of books, from time to time, nothing in the Act shall be construed to subject any person to the above penalties, unless the copy of the book shall have been entered, BEFORE PUBLICATION, in the register book of the Stationers" Company, in such manner as hath been usual; the register book to be kept at the Hall; for every entry, sixpence to be paid; such register book to be always open for inspection, without fee or reward; for certificates of entry, the clerk to be paid sixpence. By the 15 of Geo. III. cap. 53. the Universities have copy-right given them in perpetuity, and have the same penalties for the infringement of their copyrights, as other proprietors; but by Sect. 4. no penalties can be recovered, unless the entry be made in the Stationers' Hall register, in such manner as hath been usual.

Sect. 3. If the clerk of the Stationers' Company refuse or neglect to register, he forfeits to the proprietor twenty pounds, who shall, by an advertisement in the gazette, have the like benefit as if such entry, &c. had been made.

Sect. 4. This clause, giving a power to certain personages to regulate the price of books, having been repealed by the 2nd of Geo. II. cap. 36. it is unnecessary to specify it.

Sect. 5. Provided always, that nine copies of each book or books, upon the best paper, that from and after the 10th of April, 1710, shall be printed and published as aforesaid, or reprinted and