Millar v. Taylor (1769) and the new property of the eighteenth century


University of British Columbia

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Master of Laws - LLM




The reception of copyright in the English common law in the eighteenth century provides a unique opportunity to study the jurisprudential concept of property rights at a moment of change. While copyright, or to use the contemporary term, the "right of copy", had been in the process of development since the introduction of the printing press into England in 1476, it was not until 1709 that Parliament enacted the first copyright statute, the Statute of Anne 8 Anne, c. 19. Sixty years later in Millar v. Taylor 4 Burr 2303, 98 Er 202, the Court of King's Bench considered the nature and purpose of copyright for the first time. The case arose in the course of the "literary property debate", a commercial struggle between rival booksellers for predominance in the emerging book trade. This paper proceeds through a detailed study of the genesis and theoretical background of Millar v. Taylor to address two questions: (1) in what sense did copyright constitute a "new property" in the common law, and how did it contribute to a conceptual change in property rights; (2) how did English courts conceive of "authorship" during the evolution of copyright, and how, in turn, did copyright as it emerged from the literary property debate alter the role of the author ? The judgments of Justice Joseph Yates and of William Murray, Lord Mansfield, offered particular insights into each of these questions. Justice Yates, in dissent, perceived that copyright posed a challenge to traditional property theory, especially to arguments grounded in natural law. As its subject matter was the intangible of literary ideas and expression, he argued the need for limits to be imposed on copyright in the interests of the public domain. The property right could not be derived from value, as it was the right itself which created value. Lord Mansfield adopted a natural law approach, but located it largely in the personal, as opposed to proprietary, interests which copyright served. The author's interests in privacy and in controlling the product of his intellectual labour formed, for him, a principal justification for the property right. The paper explores these ideas, first, by giving a close reading to the precedent cited in Millar v. Taylor (1769), and tracing back through precedent cited therein to the roots of intellectual property in English law. Second, the insights of Justice Yates and Lord Mansfield are taken forward through subsequent developments in legal theory and copyright. In particular, the recognition, which followed Millar v. Taylor and vindicated Justice Yates' position, of copyright as a statutory property designed and limited by political choice is shown as characterising the leading theoretical approaches to property rights-- including utilitarian, Realist and critical approaches—which now predominate in jurisprudence. Further, Lord Mansfield's understanding of the dual purpose of copyright is examined in relation to a personhood justification of property, and in terms of the evolution of copyright as a property regime for protecting factual works of information, and fictional works of imagination. The paper endeavours to highlight both the concern for public domain and for personal interests of authors which had such significance in the early development of copyright.


Copyright; Right of property

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