|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Journal of Legal History |
MARK LEEMING[*]
In 1773, ex parte injunctions were granted by the Lord Chancellor, later to be dissolved, in two suits directed to protecting the valuable property in Hawkesworth’s Voyages,[1] the first authorised account of Cook’s circumnavigation of the globe. In one sense, those proceedings were the first Australian copyright litigation. Both suits were commenced at a critical moment in the development of the law of copyright, in the period between Millar v Taylor in 1769[2] and its overruling in Donaldson v Becket in 1774,[3] when the celebrated ‘Question of Literary Property’ was debated at large and when the law in England was that common law copyright was not extinguished by statute and was of unlimited duration. Fortuitously, those circumstances had enabled Dr John Hawkesworth, commissioned by the Admiralty to write up Cook’s journal, to command an enormous advance from his publisher Strahan, but ironically his Voyages became invoked as a leading example of the restrictive practices of the London publishers in support of the overruling of Millar v Taylor judicially and legislatively.
Despite the foregoing, neither suit is well known. The first, Hawkesworth v Parkinson, although well-publicised at the time, is unreported and seemingly unmentioned by all texts. The second, Strahan v Newbery, is reported only as an anonymous and undated decision from the Chancellor’s Court.[4] Neither is mentioned in Dr Deazley’s excellent study of the period.[5] However, because the publications which were the subject of the litigation have survived and because the Chancery records have been fairly well preserved, it is possible to revisit the proceedings in some detail.
The Endeavour had returned to England in July 1771, and Joseph Banks was elevated into the highest levels of society – he had audiences with the King, and nobility called at his house to see the curiousities of the voyage.[6] A full account was keenly anticipated. Contrary to an order to surrender all journals, one member of the ship’s company managed to arrange for Thomas Becket to publish that September an anonymous journal.[7] Although rapidly translated into French and German in 1772, it was brief at 132 pages, unillustrated, and inaccurate.[8]
The view had been taken, erroneously,[9] that Lieutenant Cook lacked literary ability to prepare an account for publication, and so, on the advice of Burney and Garrick,[10] the Admiralty engaged the journalist Hawkesworth to write the definitive account, leaving it to him to arrange his publisher. The Admiralty also persuaded Joseph Banks to lend his journal[11] and, equally importantly, he acquired the drawings made for Banks by the three draftsmen engaged to travel with him.[12] With the exclusive right to produce what seemed destined to be a perennial best-seller, and on the understanding that the publisher would obtain copyright unlimited in duration, Hawkesworth
had applications from half the Booksellers in London, none of whom offered more than five thousand pounds ... Mr Strahan offered me six thousand, & to furnish me with all the Copies that I had engaged to give away, which, being five & twenty, amounted to seventy five pounds.[13]
Standing in the way of exclusivity was the fact that one of Banks’ draftsmen, Sydney Parkinson, had also kept a diary until his death on the homeward voyage. That diary was in the possession of Banks, and his next of kin were keen to recover it (and his other personal effects and three years’ arrears of wages). As a civilian, he was not subject to Cook’s order to hand in all diaries. After some delay and dispute, on 31 January 1772, Banks paid £500 to Sydney Parkinson’s brother and personal representative Stanfield, a common friend Dr John Fothergill acting as an intermediary. Parkinson then requested that he peruse his brother’s diary, which was granted despite Banks’ misgivings and, according to Fothergill but disputed by Parkinson, ‘with an Express Injunction that no other use than a bare perusal and to satisfy his curiousity should be made of them’.[14] What was not disputed was that Parkinson caused a copy of his brother’s journal to be made, and engaged Messrs Richardson and Urquhart to publish it. After efforts to buy Parkinson off failed,[15] Hawkesworth commenced a suit in chancery, and retained the Solicitor-General, Alexander Wedderburn (later Lord Loughborough LC) to appear.
Injunctions could only be ordered by the Lord Chancellor or, on days he was not available, by the Master of the Rolls.[16] In 1770, after the death of Hardwicke’s son Charles Yorke three days after he was made chancellor,[17] the Great Seal was held by 3 commissioners, one from each of the common law courts, of whom it is said that ‘they were all thought incompetent, and Bathurst the least competent of the three’.[18] A year later, on short notice, Henry Bathurst was created Baron Apsley and made Lord Chancellor.[19] Historians were united in an assessment of his performance: Campbell describes him as affording ‘a memorable example of what may be accomplished by dull discretion’[20] whose most memorable act was the building of Apsley House, later the town residence of the Duke of Wellington.[21] Holdsworth wrote that ‘he was the one Chancellor of the eighteenth century whose ability was obviously inadequate’.[22] Foss wrote that
Overawed by Thurlow, Wedderburn and other counsel practising at his bar, he was so little conversant with either the principles or practice of equity that his decisions have no value in the profession.[23]
Bathurst’s successors, the future Lords Thurlow and Loughborough, were, in 1773, Attorney General and Solicitor General. They were regular, celebrated courtroom opponents and rivals. Thurlow spoke powerfully against the excesses of the press, Wedderburn eulogised it.[24] They were opposed in the Douglas peerage case,[25] and participated in all of the leading copyright cases of these years, Wedderburn invariably for the copyright owner, Thurlow for the defendant.[26] As shall be seen, Thurlow’s speeches as Attorney General in the House of Commons, and as advocate in the House of Lords, reflected his advocacy as counsel against Hawkesworth’s work. It was natural for Parkinson to retain Thurlow to resist the injunction.
Although there had been no determination of the question of authors’ rights to literary property by common law courts until 1769 in Millar v Taylor,[27] common law copyright had come to be readily protected by the Lord Chancellor. Copyright was seen as especially apt for injunctive relief, because damages were inadequate, as the defendants were often men of straw, the magnitude of the copyright owner’s loss difficult or impossible to determine,[28] and because the common law courts lacked the power to prevent further infringements during, and after, the trial of the action.[29] Drawing on the practice in relation to patents, it became standard practice for a plaintiff to obtain an injunction ex parte.[30] As Lord Hardwicke put it, what distinguished these cases from ordinary interlocutory injunctions, was that the whole of the title to the property right was on the plaintiff’s side; the usual course was that no injunction would be allowed until the defendant had answered, or defaulted in answering.[31] The ex parte injunction would be expressed ‘until the said defendant shall fully answer the Petitioner’s Bill and this Court make other orders to the contrary’.[32] No undertaking as to damages was required.[33] Even where there was a fair question whether there was an infringement of copyright, the injunction would either be maintained, with an action forthwith, or dissolved on terms that the defendant undertake to account.[34] All this made the procedure very favourable to plaintiffs, and in time undertakings were required and interim injunctions replaced the earlier wording.[35] This would have made it natural for those advising Hawkesworth, faced with the very imminent prospect of an unwelcome competing publication, to seek to frame his case in copyright, rather than breach of contract.
Originals of Hawkesworth’s bill of complaint, the supporting affidavits of Hawkesworth and Dr Fothergill on which the injunction was initially granted, and Parkinson’s answer, are kept in the Chancery records held at the National Archives, Kew.[36] There are also the entries in the ‘Register’s Book’ (or ‘Reg Lib’), which are not uncommonly cited in the better nominate reports and the eighteenth and nineteenth century practice books, which contain the orders made and a précis of the circumstances in which those orders were made.[37]
Hawkesworth claimed in his bill that Sydney Parkinson had been employed by Joseph Banks to produce drawings on the voyage, and had also kept a journal ‘and made diverse and very many nice and accurate observations, notes and memorandums and wrote down and kept an exact and particular history journal diary and relation of all or most of the remarkable and other incidents and occurrances in such voyage’. Those papers were left in the possession of Joseph Banks after Sydney Parkinson’s death, and were bequeathed to Stanfield Parkinson, who also became his brother’s personal representative. Through the conciliation of Dr John Fothergill, Banks paid £500 in exchange for all of Sydney Parkinson’s papers. That payment was made on 31 January 1772. On the previous day, Banks had assigned his right to Hawkesworth. Following the completion of the manuscript of Cook’s voyage, Banks lent the diary to Parkinson allegedly on terms that it be used solely to check the manuscript,[38] and in breach of that undertaking, Parkinson retained a copy and took steps to have it published. The bill prayed for an injunction in the usual form, and for delivery up of Sydney Parkinson’s papers in his brother’s possession.
The bill, which was required to be candid,[39] disclosed an important matter unstated in the affidavits, namely, that the assignment from Banks to Hawkesworth preceded the acquisition by Banks of the Parkinson materials.
On 4 February 1773, Wedderburn, the Solicitor-General, sought and obtained ex parte an injunction. The Register’s Book records the submission that under the assignment from Banks, ‘the petitioner is become the sole owner and proprietor [of Parkinson’s journal] and hath the Sole Right Title and Property in and to the same’.[40] News of the order circulated; Horace Walpole wrote
that Hawkesworth had received d’avance one thousand pounds from the voyager [Banks] and six thousand from the publishers, Strahan and Co, who will take due care that we should read nothing else till they meet with such another pennyworth.[41]
Parkinson sought and obtained an extension of time to file his answer,[42] which was filed in May, and which put most of the allegations in issue. That day, he moved for the injunction to be discharged, as he had ‘put in a full and perfect answer to the petitioner’s bill and thereby denied the whole equity thereof’, and the Chancellor made an order nisi to that effect.[43] On 28 May 1773, Thurlow appeared for Parkinson, Wedderburn again appearing for Hawkesworth. The record does not disclose any reasons, formulaically stating that the answer was read and counsel ‘offered diverse reasons’ as a result of which the Court ordered that the injunction be dissolved.[44]
There followed some directions relating to the provision of witnesses,[45] but the real dispute had been resolved. Hawkesworth’s Voyages were published not in April as the Chancellor had been told but on 9 June,[46] Parkinson’s Journal two days later.[47] Plainly, work on Parkinson’s Journal had been much further advanced that Hawkesworth’s Voyages, given the four month delay caused by the injunction and the change of publisher from Messrs Clarke and Jaquery to Messrs Richardson and Urquhart. The proceeding abated upon the death of both parties later in 1773.
There is no surviving court record of the arguments of the law officers and any reasons from the chancellor. However, relying in part upon the preface to Parkinson’s Journal, it is possible to hazard an explanation for what took place.
By 1773, it had been recognised that a common law copyright existed in unpublished manuscripts, which equity would protect by injunction.[48] In Webb v Rose the son and devisee of a conveyancer enjoined his deceased father’s clerk from publishing draft conveyances which had never been published;[49] in Duke of Queensbery v Shebeare a manuscript of the unpublished ‘History of the Reign of Charles II from the Restoration to 1667’ by Lord Clarendon was inherited by the deceased Duke, whose personal representatives obtained an injunction to restrain its publication.[50] Blackstone had relied on those decisions both as counsel and as author for the general proposition that authors had common law copyright in original works, in addition to that conferred by the Statute of Anne.[51]
Those cases demonstrated that the right was devisable and was accordingly vested in Stanfield Parkinson. And Duke of Queensbury v Shebeare (as well as the Statute of Anne in respect of published works) plainly distinguished the right to the physical paper from the incorporeal copyright. Thus, only if the assignment from Parkinson to Banks of 31 January 1772 included copyright, as well as the physical papers, and only if the assignment from Banks to Hawkesworth of 30 January 1772 was expressed to include an assignment of future property could Hawkesworth have obtained the copyright vested in Stanfield Parkinson.
That those defects in Hawkesworth’s title were at the forefront of the argument is consistent with preface to Parkinson’s Journal:[52]
Put thus to the trouble and expence of defending a suit in chancery, and the publication of my book being delayed when just ready to appear, I had yet no remedy but that of putting in a full answer to the bill, and praying a dissolution of the injunction. This I at length obtained; the reasons for continuing the injunction not appearing satisfactory to the court, and indeed the pretended transfer of the property in my brother’s manuscripts, from me to Joseph Banks, and from Joseph Banks to Dr Hawkesworth, being attended with a circumstance, that, on the very face of it, might reasonably suggest some collusion. This was, that the alledged date of the assignment of such property, from Banks to Hawkesworth, was prior to that of the receipt for the five hundred pounds before-mentioned, given by Stanfield and Britannia Parkinson to Banks, on which the pretended right of the latter to such manuscript was founded. Can it be supposed, that a man of Dr Hawkesworth’s discretion and abilities would enter into an engagement of this nature, and make a purchase of such moment, without enquiring into the title of the vender?
Hawkesworth’s Voyages was controversial from the start. Unsurprisingly, it was not to the taste of Horace Walpole, who wrote
I have almost waded through Dr Hawkesworth’s three volumes of the voyages in the South Seas. The entertaining matters would not fill half a volume; and at best it is but an account of the fishermen on the coasts of 40 islands.[53]
But less sophisticated tastes agreed. Forster wrote that Hawkesworth ‘was eagerly read by all European nations, but incurred universal censure, I had almost said contempt’.[54] For some, there was insufficient reference to Divine Providence.[55] Certainly there were internal contradictions.[56] Hawkesworth’s placing of classical allusions in the mouths of the captains jarred, and, much worse, his embellishments had not been confirmed by the commanders. Beaglehole describes Cook’s reaction:[57]
Cook read them, and was surprised beyond measure; worse, he was “mortified”. He was mortified because he did not recognise himself - and could hardly do so when so much of Banks appeared as Cook, with original nautical blunders by Hawkesworth himself; he was surprised to learn from the introduction that the manuscript had been read to him at the Admiralty for his approval, and such emendations as he had suggested had been made.
When Cook dined with Boswell on 2 April 1776, he ‘set me right as to many of the exaggerated accounts given by Dr Hawkesworth of his Voyages’.[58] Hawkesworth was to die of an opium overdose in November 1773,[59] and the criticism of his last literary effort was such that Horace Walpole wrote that he was ‘out of luck not to have died a twelve month ago’.[60]
The first edition of 2,000 of Hawkesworth’s Voyages sold out in months, but a second edition of 2,500 later that year proved overly optimistic – 610 sets remained unsold twelve years later.[61] Austen-Leigh, after analysing the publisher’s ledgers, said that Hawkesworth’s books were a financial failure for Strahan.[62] Partly that reflected the perceived quality of the work for its price and the competition from Parkinson’s Journals. But there were at least two further reasons for the failure: the competition from pirates and abridgements and the change in legal landscape brought about by Donaldson v Becket, each of which is addressed below.
Many detailed accounts of Millar v Taylor and Donaldson v Becket exist;[63] in outline, the issue was whether authors had a property right in their literary works, and if so, what was the effect of the Statute of Anne upon that right. As Blackstone noted in 1766, there had not been ‘any direct determination upon the right of authors at the common law’,[64] although frequently injunctions had issued in support of what could only be common law copyright. The interlocutory injunctions were of little precedential value – it was clear law that an injunction would issue before a common law right was established.[65] This was a matter for determination by a common law court.
For practical reasons, it was not until 1769 that the question was litigated in a common law court. Finally, in Millar v Taylor, a decision favourable to the booksellers was obtained from all twelve common law judges, whom Mansfield CJ had arranged to sit. No appeal was taken.
For the first time, the London booksellers had secured an authoritative affirmation of the author’s common law right to print and publish his work in perpetuity, and, by extension, had secured their monopoly over the trade’s most profitable titles.[66] Buoyed by this success, the English booksellers sought to persuade the Court of Session to the same view.
The next two decisions involved Alexander Donaldson, who had evaded legislation preventing the importation of works originally published in England by setting up shop in the Strand and reprinting works as they came out of statutory copyright.[67] Fresh from a victory in the Court of Session, which in Hinton v Donaldson[68] declined to follow Millar v Taylor, he published in London ‘The Seasons’, the very same work the subject of Millar v Taylor. Millar’s assignee Becket (the publisher of the Anonymous Journal) obtained an injunction from the Lord Chancellor on the strength of Millar v Taylor, from which Donaldson (as must always have been his intention) appealed to the House of Lords. The case was elaborately argued, and was widely publicised.[69]
Once again, Thurlow and Wedderburn were opposed. Thurlow spoke in reply on 9 February 1774:[70]
If one court’s determination in favour of the common law rights had given three guineas for such a work as Hawkeworth’s Voyages, what would not a determination of the House of Lords give? Six guineas at least, so that the public would be materially injured if the monopoly contended for by the respondent was ratified and confirmed. That it was a monopoly tending to distress the public, injure literature and contrary to every spring of natural justice.
Of course Hawkesworth’s Voyages plainly fell within statutory copyright, and thus had little to do with the issue, apart from emphasising that a decision upholding Millar v Taylor would enable the booksellers to maintain high prices indefinitely. Not only was Hawkesworth’s Voyages notoriously over-priced, but by this time, Thurlow would probably have been briefed for his second case in relation to the same work, this time by the abridger Newbery.
In the event, the House of Lords held that although common law copyright existed, upon publication it was abrogated by the statutory rights under the Statute of Anne.
Following Donaldson v Becket, the London booksellers including Strahan petitioned Parliament for an Act which partially restored the position as previously understood, giving a fourteen year exclusive right in respect of books already printed and published, based primarily on the complaint of many thousands of pounds spent on obtaining ancient copyrights in reliance of Millar.[71] Attorney General Thurlow spoke against the Bill, and returned to his theme:
they were a set of impudent monopolizing men, that they had combined together and raised a fund of 3,000l in order to file bills in Chancery against any person who should endeavour to get a livelihood as well as themselves; that although they had purchased copyright from Homer down to Hawkesworth’s Voyages, which he said was very low indeed, that Hawkesworth’s book, which was a mere composition of trash, sold for three guineas by their monopolizing; and above that the booksellers were highly censurable for not having taken counsel’s opinion whether they had a right in copies or not, and not to rely solely upon the decision of the court of King’s Bench.[72]
Although the Bill was passed by the Commons,[73] passage by the House of Lords was always going to be problematic – for the peers were asked to reverse by legislation the judicial decision they had made four months earlier. On 2 June 1774, knowing that prorogation for summer was at hand, the House of Lords by a majority of 21 to 11 put off the second reading of the bill for 2 months, so that it lapsed on 22 June when Parliament was prorogued.[74]
Thus for his £6075 plus other costs, Strahan received not perpetual common law copyright in Hawkesworth’s Voyages, but a statutory monopoly for a mere 28 years.
Even during the statutory period, Strahan had to fend off other infringers.[75] As early as 31 July 1773 - less than two months after the appearance of Hawkesworth and Parkinson – Newbery was selling a compilation in 48 weekly parts of all of the English circumnavigators, with Parkinson and Bougainville thrown in for good measure, for fourpence halfpenny a part.[76] Just as the greater part (two of the three volumes) of Hawkesworth was Cook’s first voyage, so too the greater part of Newbery’s compilation was to be Cook (most of the third and fourth volumes of what was to be a four volume set). On any view of the Statute of Anne, Hawkesworth was protected, and so Newbery’s plan, capitalising on the complaints of the high price and unnecessary length of Hawkesworth, was to sell an abridgement.
On 11 November 1773, Wedderburn once again sought an ex parte injunction from the Lord Chancellor.[77] In accordance with the usual practice, an injunction was granted until Newbery should fully answer the Bill or further order. Newbery’s answer is dated 12 January 1774,[78] and on 13 January Newbery moved to dissolve the injunction, and an order nisi to that effect was made.[79] After a short delay brought about by a technical objection to the answer,[80] Strahan obtained leave to amend and filed an amended bill, which was met by a further answer dated 9 March, and once again an order nisi dissolving the injunction was obtained.[81]
On 11 April 1774, the real issue came to be argued was Newbery’s work a fair abridgement, or merely a colourable copy, of Hawkesworth? The Statute of Anne contained no exceptions,[82] but it had been established that a bona fide abridgement, as opposed to one which was merely colourable, did not infringe.[83] Lord Eldon was later to express the test as whether there had been a legitimate use of the copyright publication in the fair exercise of a mental operation deserving the character of an original work.[84] Wedderburn appeared for Strahan, Thurlow for Newbery. The outcome was another reference to a master, this time ‘to Mr Harris one of the Masters of the Court to inquire whether the said book published by the defendant is a fair abridgement of the book published by the petitioner’.[85]
Master Harris’ report of 18 May 1774 does not appear to have been preserved.[86] However, the further exception taken to it by Strahan on 30 May is extant,[87] from which it is clear that the Master found that Newbery was a bona fide abridgement of Hawkesworth. On the front page of the exception is written (by a patently later hand), ‘Heard November 1774’. That is consistent with the record, which provided for the exception and the balance of Strahan’s response to the order nisi to be heard simultaneously[88] on 5 August 1774. But on that date, when both Thurlow and Wedderburn appeared, the Lord Chancellor ordered that ‘the Exception do stand over to the next day of Exceptions and in the meantime it is ordered that the Injunction be continued as to the first fourteen Numbers of the Book in Question’.[89]
Nothing appears in the Register’s Book for November, but nor would it be expected to, according to the reported reasons, for the Chancellor reserved his decision in order to consult with Blackstone. In 1776, Strahan published Capel Lofft’s Reports of cases adjudged in the Court of King’s Bench from Easter term 12 Geo 3 to Michaelmas 14 Geo 3, with some select cases in the Court of Chancery and the Court of Common Pleas, and included the following report:[90]
CURIA CANCELLARIA
Before Lord Chancellor Apsley, assisted by Mr Justice Blackstone
On a bill praying an injunction against an edition by Mr Newbery of an abridgement of Dr Hawkesworth’s Voyages.
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 abridgment 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 compass, and rendering it less expensive, and more convenient both to the time and use of the reader. Which made an abridgment in the nature of a new and a meritorious work.
That this had been done by Mr Newbery, whose edition might be read in the fourth part of the time, and all the substance preserved, and conveyed in language as good or better than in the original, and in a more agreeable and useful manner. That he had consulted Mr Justice Blackstone, whose knowledge and skill in his profession was universally known, and who as an author himself had done honour to his country.
That they had spent some hours together, and were agreed that an abridgement, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. And that this abridgement of Mr Newbery’s falls within the reasons and description.
Therefore the bill praying an injunction ought to be dismissed.
Bill dismissed.[91]
It is difficult to conceive that Lofft and his publisher Strahan were unaware that the plaintiff in this decision, the publisher of Hawkesworth’s famous Voyages, was Strahan himself! The most likely explanation is that the decision has been unnecessarily anonymized by the publisher’s attempt to conceal his own loss.
The reported reasons show that Strahan v Newbery was one of a handful of generous decisions permitting abridgements of copyright works. Those decisions came to be criticised – both because the Lord Eldon’s statement of principle in Wilkins v Aiken was merely ‘another mode of stating the difficulty, rather than a test affording a clear criterion to discriminate between the cases’,[92] and because it seemed less clear that an abridger was a benefactor. The tenor of later decisions was colourfully put by Wood V-C (later Lord Hatherley) when he said that he regarded the abridger ‘rather as a sort of jackall to the public, to point out the beauties of authors’.[93]
Hawkesworth’s Voyages and Parkinson’s Journal were milestones in the publication of Pacific exploration, to which Hawkesworth v Parkinson and Strahan v Newbery are small footnotes. The litigation also yields insights into chancery practice in the late eighteenth century. Moreover, although not directly turning upon the larger question of the nature of literary property, Hawkesworth’s Voyages, because of the coincidence of its timing, its price and its quality, served as an effective example of the issues at stake in the curial and parliamentary development of the law. As the debate concerning the recent extension of the copyright period in Australia,[94] (following extensions in Europe[95] and the United States[96]) shows, the underlying issue of balancing the rights of authors, their publishers and the public debated in the 1770s is with us still.
[*] Barrister, Sydney; Challis Lecturer in Equity, University of Sydney. I am grateful for the kind assistance of the staff of the National Archives at Kew, and the House of Lords Record Office.
[1] An Account of the Voyages undertaken by the Order of His Present Majesty for Making Discoveries in the Southern Hemisphere (1773) 3 vols. Both Hawkesworth’s Voyages and Parkinson’s Journal have been made accessible by the National Library of Australia at http://southseas.nla.gov.au/index_voyaging.html.
[2] [1769] EngR 44; (1769) 4 Burr 2303; 98 ER 201.
[3] (1769) 4 Burr 2408; 98 ER 257; more elaborately reported in Cobbett, Parliamentary History of England from the Earliest Times to the Year 1803 (1813) xvii, 954-1003.
[4] Lofft 775 [98 ER 913]. It is erroneously cited as ‘Dr Hawkesworth’s case’ in Tinsley v Lacy [1863] EngR 762; (1863) 1 H & M 747, 750 [1863] EngR 762; [71 ER 327, 328].
[5] Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (2004).
[6] Beaglehole, The Life of Captain James Cook (1974) 273; O’Brien, Joseph Banks (1987) 148-149.
[7] Journal of a Voyage Round the World in His Majesty’s Ship Endeavour [1768-71]. Originals are in the Mitchell and British libraries; a facsimile reproduction was privately printed by Antonio Giordano Adelaide 1975. The work is most likely that of James Matra or Magra as he was then known, a midshipman. The best discussion is by Beaglehole, Journals of Captain Cook (1955) vol 1, cclvi-cclix.
[8] ‘The subject is so interesting that there is no putting the book down, at the same time the inaccuracy with which it is wrote makes it most tiresome and indeed the most provoking reading I ever met with’ wrote Captain Bentinck to Cook on 10 October 1771 (quoted by Beaglehole, above, n 6, 290).
[9] As demonstrated by Cook’s account of his subsequent voyage, ‘one of the great events in the history of Pacific exploration’: Beaglehole, above n 6, 471.
[10] Beaglehole, above n 6, 289-90.
[11] Hawkesworth to Sandwich, 19 November 1771, cited by Beaglehole, above n 6, 290.
[12] Deed of 30 January 1772, referred to in the Bill of Complaint (PRO C12/1624/8) and in Hawkesworth’s affidavit of 3 February 1773 (PRO C31/187 folio 79).
[13] Hawkesworth to Garrick, nd ‘Wed Evening’ BM Add MS 28104 ff 45-6, (quoted by Beaglehole, above n 6, 290).
[14] Affidavit of John Fothergill sworn 28 January 1773, PRO C31/187 folio 80; cf answer of Stanfield Parkinson dated 11 May 1773 PRO C12/1624/8.
[15] According to Fothergill’s affidavit, Parkinson initially agreed to receive some £64 to meet his expenses, then claimed that an additional expense of £300 had been incurred and that in any event he intended to publish.
[16] 3 Geo II c30, intended to validate orders and decrees of the Master of the Rolls, left his powers unclear, because it did not apply to ‘orders and decrees of such nature or kind as, according to the course of the said court, ought only to be made by the Lord Chancellor’. ‘It has been supposed that the Master of the Rolls does not grant injunctions; the practice, however, is otherwise’: Chitty, The Practice of the Law in All its Principal Departments (3rd ed, 1837) vol 2, 445.
[17] Campbell, Lives of the Lord Chancellors, (3rd ed, 1849) vol 5, 415-426.
[18] Foss, A Biographical Dictionary of the Judges of England (1870) 62, a view endorsed by Holdsworth xii, 313.
[19] The appointment was unexpected. Lord Eldon recorded that ‘de Grey LCJ gave a dinner to his family and friends on account of his being to have the Great Seal, as Chancellor, next morning – but that in the Interim between the Dinner and the next Morning, Mr Justice Bathurst, it was determined, should be Chancellor and received the Seal’ (Anecdote Book, Lincoln and McEwen (eds), (1960) 108).
[20] Campbell, above n 17, vol 5, 437.
[21] Ibid 477.
[22] Holdsworth, xii, 314.
[23] Foss, above n 18, 62.
[24] Campbell, above n 17, v 505; vi 78-79.
[25] Campbell cites Charles Fox as often declaring that ‘Wedderburn’s speech on this occasion was the very best he ever heard on any subject’: above n 17, vol 6, 63.
[26] Notably, Tonson v Collins [1746] EngR 663; 1 Black W 301 [96 ER 169].
[27] [1769] EngR 44; (1769) 4 Burr 2303; 98 ER 201.
[28] ‘[A]dequate relief could not be given by any action for damages, it being impossible to lay before a jury the whole evidence as to all the publications which go out to the world to the plaintiff’s prejudice; and the sale of copies by the defendant is in such instance not only taking away the profit upon the individual book which the plaintiff would have sold, but may injure him to an incalculable extent, which no inquiry into the extent of damages can ascertain’: Chitty, above n 16, vol 1, 719-720, citing Hogg v Kirby [1803] EngR 513; (1803) 8 Ves Jun 215, 225 [1803] EngR 513; [32 ER 336, 340] and Wilkins v Aikin [1810] EngR 465; (1810) 17 Ves 422, 424 [1810] EngR 465; [34 ER 163, 164].
[29] Goldsmith, The Doctrines and Practice of Equity (6th ed, 1871) 151-152.
[30] ‘Where there has been an infringement of Copyright; or where the Proprietors of a New invention under Letter Patent, file a Bill for an injunction to stay other persons from infringing upon their Patent, the Court will grant an injunction on the filing of the Bill, and before the Answer, on affidavit and certificate’: Maddock, A Treatise on the Principles and Practice of the High Court of Chancery (2nd ed, 1820) vol 2, 217. ‘Immediately after the bill has been filed, and upon proper affidavits, and a motion ex parte, even before the defendant has been served with process on the bill or knows of any proceeding, an injunction may, in cases requiring immediate interposition, be obtained, even within a very few hours after the cause of proceeding has arisen. The cases in which the Court usually interferes thus summarily are those of irreparable waste, plain nuisance, infringement of a clear copyright, forcible entry, wasteful trespass, executors wasting assets, and danger of a bill being unjustly negotiated’: Chitty, above n 16, vol 1, 700.
[31] Lowther v Stamper [1747] EngR 93; (1747) 3 Atk 496 [26 ER 1085]; Anon [1750] EngR 117; (1750) 1 Ves Sen 476 [27 ER 1152]; Chitty, above n 16, vol 1, 700. Indeed, until it was dismissed in Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84, 96-97, the notion that interlocutory injunctions were especially readily granted in copyright suits continued to attract support.
[32] In addition to the two injunctions ordered in relation to Hawkesworth’s Voyages which took this form, see eg Potter v Chapman (1750) Dick 146 [21 ER 224]; Barfield v Nicholson [1824] EngR 371; (1824) 2 Sim & Stu 1, 9 [1824] EngR 371; [57 ER 245, 248] where the orders are reproduced from the Register’s Book; see also Hill v Thompson [1817] EngR 834; (1817) 3 Mer 622 [36 ER 239].
[33] Undertakings began to be required in the 1840s: Chappell v Davidson (1856) 8 De M & G 1, 2 [1856] EngR 73; [44 ER 289] ‘Has it not been for the last twelve or thirteen years an almost universal practice to require, on granting an injunction, an undertaking on the part of the plaintiff, to be answerable in damages?’ per Knight Bruce LJ. Thereafter, the registrars were under instructions to insert the undertaking: Seton, Forms of Decrees in Equity (3rd ed, 1862) vol ii, 870. See also Smith v Day (1882) 21 Ch D 421, 424.
[34] Wilkins v Aikin [1810] EngR 465; (1810) 17 Ves Jun 422, 426 [1810] EngR 465; [34 ER 163, 165].
[35] ‘It appears not to be the practice now so much as formerly to allow an injunction on an application ex parte, but to grant what is denominated an interim order, restraining the defendant until after a particular day stated in the order’: Goldsmith, The Doctrine and Practice of Equity (6th ed, 1871) 140.
[36] The Bill dated 26 January 1773 and Answer dated 11 May 1773 (tied together as was the custom) are large pieces of parchment comprising item 8 in PRO C12/1624. The affidavits are C31/187 at folios 79 and 80. The best account of Chancery records at Kew and how to locate them is Horwitz, Chancery Equity Records and Proceedings 1600-1800 – A Guide to Documents in the Public Records Office (2nd ed, 1998).
[37] The detail recorded depended on the nature of the hearing and in part on the particular clerk responsible. See for example Burnett v Chetwood, noted by Lord Eldon in Southey v Sherwood [1817] EngR 351; (1817) 2 Mer 435, 441 [35 ER 1001, 1008]; and see the reliance placed by all members of the High Court, particularly Barton J, in Penny v Milligan [1907] HCA 62; (1907) 5 CLR 349 upon the Register’s Book record of Sympson v Hornsby and Hutton. The relevant pages of the Register’s Book are found at PRO C33/439 at folios 159-160, 240, 249, 251, 256, 304, 345, 544, 545.
[38] In the Register’s Book it was put thus: ‘with an Express Injunction that no other use but a bare perusal thereof to satisfy his curiosity’.
[39] Chitty, above n 16, vol 1, 699, ‘The bill must be carefully prepared and with due candour ...’ (emphasis in original).
[40] PRO C33/439 folios 159-160.
[41] Walpole to Rev Mason, 15 May 1773 Yale edition (Lewis ed) vol 28, 85.
[42] Folio 240, 7 April 1773. The time for answer ‘is very short (and hardly a cause in which it is not necessary to pray further time)’: Travers v Lord Stafford (1750) 2 Ves 19, 21 [1750] EngR 158; [28 ER 13, 14].
[43] Folio 256 12 May. An affidavit of 21 May establishing service of this order is folio 149 of C31/187. ‘In the usual course of practice, after answer comes in, defendant moves to dissolve injunction on the merits, which is generally granted, if the defendant has fully answered the equity of the plaintiff’s bill, otherwise not’: Harrison, The Accomplished Practitioner in the High Court of Chancery (6th ed, 1779) 224.
[44] Folio 304, 28 May 1773.
[45] Folios 345, 543 and 544.
[46] Public Advertiser, 9 June 1773 (copy in Burney collection, British Library).
[47] A Journal of a Voyage to the South Seas in His Majesty’s Ship The Endeavour Faithfully Transcribed from the Papers of the late Sydney Parkinson, sold by Richardson & Urquhart, Evans, Hooper, Murray, Leacroft, Riley 1773.
[48] There was no statutory protection for unpublished works until 41 Geo III c107 s1. Common law copyright was abolished in the United Kingdom by the Copyright Act 1911, and in Australia by s 8 of the Copyright Act 1912; see now s 8 of the 1968 Act and see Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1998) 86 FCR 244, 257.
[49] 24 May 1732, Jekyll MR, cited by Blackstone in Millar v Taylor 4 Burr 2330 [98 ER 216]; as Dr Deazley has observed, this decision was based solely on a clam to the physical property in the papers, rather than any copyright: Deazley, above n 5, 69-70.
[50] [1765] EngR 72; (1758) 2 Eden 329 [28 ER 924].
[51] See Tonson v Collins [1746] EngR 662; (1752) 1 Black W 321, 330 [1746] EngR 662; [96 ER 180, 184] and Blackstone, Commentaries on the Laws of England (1766) Book II, Ch 26, §8.
[52] Page 21 (page 16 in the version posted on the internet by the National Library of Australia). Stanfield Parkinson died insane before publication, and it seems that Dr Kenrick was the author of the preface: see the note by Dr Fothergill, 18 of the new edition of Parkinson’s Journal in 1784, and its review in Gentleman’s Magazine in 1785 (52). But this does not detract from the plausibility of the account in the preface reflecting what was decisive in court.
[53] Walpole to Rev Mason, Yale edition (Lewis ed) vol 28, 96.
[54] Forster, A Voyage round the World in his Britannic Majesty’s Sloop, Resolution ... during the Years 1772, 3, 4 and 5 (1777) vol 1, ix-x.
[55] Gentleman’s Magazine (1773) 330, 505.
[56] Ibid 286-290.
[57] Beaglehole, above n 6, 439.
[58] Boswell, Life of Samuel Johnson, 3 April 1776.
[59] Gentleman’s Magazine (1773) 582 (17 November 1773); (1781) 370 (16 November 1773).
[60] Letter from Horace Walpole to Rev William Mason 19 November 1773.
[61] Pearson, ‘Hawkesworth’s Voyages’ in Brissenden (ed), Studies in the Eighteenth Century (1973) vol II, 239.
[62] See R A Austen-Leigh, ‘William Strahan and his Ledgers’ (1923) Librarian 4th serv iii 285-286. However, at the one English public library whose borrowing records have survived, it was easily the most frequently borrowed book between 1773 and 1784: ibid.
[63] See Deazley, above n 5, 169-210; Patterson Copyright in Historical Perspective (1968) 151-179; Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (3rd ed, 2000) vol 1, 2.2-2.7; Rose, Authors and Owners – The Invention of Copyright (1993), ch 5, 6; Rose, ‘The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship’ in Sherman and Strowel (eds), Of Authors and Origins: Essays in Copyright Law (1994) 23; Zach, The First John Murray and the Late Eighteenth Century London Book Trade (1998) 52-61; Kaplan, An Unhurried View of Copyright (1967) 11-18.
[64] Commentaries, Book II, ch 26, §8.
[65] Manly v Hammet (1773) Dick 488 [21 ER 359]; Donaldson v Becket in Cobbett, above n 3, 989-990 per De Grey LCJ, per Lord Camden, 996-997.
[66] Deazley, above 5, 178.
[67] Zach, The First John Murray and the Late Eighteenth Century London Book Trade (1998) 56.
[69] The appellant’s written submissions were typeset and distributed: see PRO TS 11/1075. Donaldson published an account by Boswell of his Scottish success 3 days before the hearing in the House of Lords commenced: Rose, above n 63, 95-96.
[70] Cobbett, above n 3, 970.
[71] See Cobbett above n 3, 1078ff (February 28, 1774). A copy of the Bill survives in the House of Lords Parchment Collection.
[72] 24 March 1774; Parl Hist xvii 1086. The scheme was ‘for totally preventing the sale of Scotch and Irish books, which were first printed in England’, by replacing such imports with English editions, and commencing proceedings in Chancery ‘with the utmost severity’ against any bookseller who sold the imports: Deazley, above n 5, 170.
[73] First reading passed 84:16: Cobbett, above n 3, 1089. Second reading passed (May 16) 57:26: Cobbett, above n 3, 1109. Third reading passed (May 26) 40:22: Cobbett, above n 3, 1110.
[74] Cobbett, above n 3, 1400, 1402, 1407.
[75] A further injunction (noted in Seton Forms of Decrees Judgments and Orders (4th ed, 1877) vol 1, 345) was issued in 1784 by Lord Thurlow in Nicol v Kearsley (16 August 1884, B461) presumably to prevent publication by Kearsley of A compendious history of Captain Cook’s first and second voyages. But by 1788, a 6th edition was published, so the injunction must either have been dissolved or the litigation compromised.
[76] An Historical Account of all the voyages round the world performed by English navigators including those undertaken by order of his present Majesty the whole faithfully extracted from the journals of the voyages of Drake undertaken in 1577, Cavendish in 1586-1588 ... and Cook 1768-1771 together with that of Sydney Parkinson ... and the Voyages of Mons Bougainville in 4 volumes London printed for F Newbery No 20 St Pauls Churchyard MDCCLXXIII. For dates of publication, see PRO C33/442 folio 1.
[77] PRO C33/442 and 444 contain the orders made in the litigation. The initial application is folios 1-2.
[78] Within PRO C12/1629/11.
[79] PRO C33/442 folio 38: ‘... as the defendant had since put in a full and perfect answer to the petitioner’s Bill and thereby denied of the whole equity thereof and therefore it was prayed that the said injunction may be dissolved ...’.
[80] Strahan filed an exception to the answer, and on 3 February 1774 succeeded in having the exception referred to a master: PRO C33/442 folio 129. The Master’s report or certificate, if there was one, is lost, but Newbery filed a further answer, with a slight amendment, dated 8 February, which is within PRO C12/1629/11.
[81] PRO C33/442 folio 148.
[82] See Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’ (2001) 4 IPQ 361, 366.
[83] Gyles v Wilcox [1740] EngR 76; (1740) 2 Atk 143 [26 ER 489, 490]; Tonson v Walker [1752] EngR 43; 3 Swanst 672 [36 ER 1017].
[84] Wilkins v Aiken [1810] EngR 465; (1810) 17 Ves 422, 426 [1810] EngR 465; [34 ER 163, 165].
[85] PRO C33/442 folio 179.
[86] The index of reports, PRO IND 1/10700/15, does not list any reports from this litigation.
[87] It may be found within PRO C40/3, the bundle of 1774 exceptions. It stated: ‘First exception: For that the Master hath certified that the final fifteen numbers of the book published by the defendant were taken from and contain the substance of the major part of so much of the book published by the complainant as relates to the description of the countries discovered the Latitude and Longitude in which they lie and the customs and manner of the natives thereof - with the most remarkable occurrences that happened during the said voyages but not in the same words or phraseology. Whereas in fact the said final fifteen numbers were taken from and contain the substance of nineteen parts in twenty at least of so much of the book published by the complainant as abovementioned and are in many places taken in the same words and throughout in the same phraseology and the said Master ought to have so found.’ Second exception: ‘For that the Master hath reported that the said first fifteen numbers of the said book published by the defendant (except a few pages therein which are taken from other books) is a fair abridgement of the above mentioned book published by the complainant whereas he ought to have reported that the same is not a fair abridgement thereof.’
[88] PRO C33/442 folio 513 (14 June 1774).
[89] PRO C33/442 folio 368 (5 August 1774). Newbery was permitted to publish the subsequent numbers of the book (Parkinson and Bougainville) in respect of which, of course, Strahan could have no complaint.
[90] Lofft 775 [98 ER 913].
[91] The bill was dismissed with costs to be taxed on 5 July 1775: PRO C33/444 folio 575 (5 July 1775). This order, made on the application of defendant’s counsel, must have post-dated the Chancellor’s decision.
[92] Story, Commentaries on Equity Jurisprudence (5th ed, 1849) vol II, 269.
[93] Tinsley v Lacy (1863) 11 WR 877. The reference to ‘jackalls’ is not reproduced in any other reports of this judgment: see [1863] EngR 762; 1 H & M 747, 2 NR 438, 32 LJ Ch 538. See further Story, Commentaries on Equity Jurisprudence (5th ed, 1849) vol II, 269-275.
[94] US Free Trade Agreement Implementation Act 2004, Sch 9, Pt 6.
[95] Council Directive 93/98/EEC (29 October, 1993).
[96] Copyright Term Extension Act 1998, validity affirmed Eldred v Ashcroft [2003] USSC 722; 123 S Ct 769; 537 US 186 (2003).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUJlLegHist/2005/9.html