Millar v Taylor

JurisdictionEngland & Wales
Judgment Date20 April 1769
Date20 April 1769
CourtCourt of the King's Bench

English Reports Citation: 98 E.R. 201

IN THE COURT OF KING'S BENCH

Millar
and
Taylor

Discussed, Jeffereys v. Boosey, 1854, 4 H. L. C. 846, 872; Reade v. Conquest, 1861, 9 C. B. N. S. 767. Referred to, Caird v. Sime, 1887, 12 App. Cas. 357; Philip v. Pennell [1907], 2 Ch. 585; Donaldson v. Becket, 4 Burr. 2408, is also reported, 2 Bro. P. C. 129; Cobbett's Parl. Hist. Vol. Xvii. P. 954. In addition to cases cited above, see Mansell v. Valley Printing Company [1908], 2 Ch. 445.

[2303] millar versus taylor. Thursday 20th April, 1769. Authors are only secured in their copy-right under the stat. of 8 Ann. c. 19. .[Discussed, Jeffereys v. Boosey, 1854, 4 H. L. C. 846, 872; Reade v. Conquest, 1861, 9 C. B. N. S. 767. Referred to, Caird v. Sime, 1887, 12 App. Gas. 357 ; Philip v. Pennell [1907], 2 Ch. 585 ; Donaldson v. Becket, 4 Burr. 2408, is also reported, 2 Bro. P. C. 129 ; Cobbett's Parl. Hist. vol. xvii. p. 954. In addition to cases cited above, see Mansdl v. Valley Printing Company [1908], 2 Ch. 445.] This case was a revival of the old and often-litigated question concerning literary property : and it was the first determination which the question ever received, in this Court of King's Bench. The declaration was of Michaelmas term in the seventh year of His present Majesty, 1766. The first argument at the Bar was on Tuesday 30th of June 1767 : when the Court ordered it to stand over to the next term, for a second argument. It was argued, a second time at the Bar, on the 7th June 1768. The first argument was by Mr. Dunning, for the plaintiff ; and Mr. Thurlow, for the defendant : the second, i y Mr. Blackstone, for the plaintiff; and Mr. Murphy, for the defendant. After the second argument, the following rule was made ; viz. "Tuesday 7th June (in Trinity term, 1768). " Millar. Taylor. - It is ordered that this cause shall stand over for the opinion of this Court, until the next term. And, by the consent of the counsel for both parties, it is further ordered, that the judgment which shall then be given, shall be entered up as a judgment of this term, in the same manner as if the said judgment (a) The case as stated demonstrates his notice, at least of the course of dealing, and that is sufficient notice, whether he knew of the advertisements or not. K. B. xxvii.- 7* 202 MILLAR V. TAYLOR 4 BURR. 2304. had been given on this day. Mr. Blackstone, for the plaintiff; Mr. Murphy, for the defendant." Note.-Mr. Millar died the next morning. In Hilary term 1769, 9 G. 3 (on Tuesday 7th February 1769), The Court ordered it to be set down in the paper, upon the second-paper day of the next terra, for the opinion of the Court. It would be tedious and tautologous, to repeat the arguments of the counsel at the Bar, or the cases and authorities cited by them ; as they were, all of them, so very fully and amply taken up again from the Bench, and so elaborately expatiated upon, canvassed, and discussed by the Judges, in delivering their opinions, and the reasons whereupon they formed them. [2304] Let it suffice to say, in general, that the counsel for the plaintiff insisted, " that there is a real property remaining in authors, after publication of their works; and that they only, or those who claim under them, have a right to multiply the copies of such their literary property, at their pleasure, for sale." And they likewise insisted, " that this right is a common law right, which always has existed, and does still exist, independent of and not taken away by the statute of 8 Ann. c. 19." On the other side, the counsel for the defendant absolutely denied that any such property remained in the author, after the publication of his work : and they treated the pretension of a common law right to it, as mere fancy and imagination, void of any ground or foundation. They said, that formerly the printer, not the author, was the person who was supposed to have the right, (whatever it might be :) and accordingly the grants were all made to printers. No right remains in the author, at common law. They insisted, that if an original author publishes his work, he sells it to the public : and the purchaser of every book or copy has a right to make what uae of it he pleases; and may multiply each book or copy, to what quantity he pleases; and the sole exclusive right of multiplying such copies does not remain in the author, after publication. It would be a monopoly, if it did. The purchaser of the book has the jus fruendi et disponendi. The Act of Parliament of 8 Ann. c. 19, for the encouragement of learning, vests the copies of printed books in the authors or purchasers of such copies, during the times therein limited. But it is only during that limited time; and under the terms prescribed by the Act. And the utmost extent of the limited time is, in the present case, expired. And they argued from the case of mechanical inventions; where it is admitted, " that the rule does not hold." Yet the same rule ought to hold, in all similar instances. And the copy of one of these is just like the copy of the other: and a great deal of mental labour is often bestowed upon mechanical inventions, as well as upon literary productions. [2305] Of Michaelmas Terra, in the Seventh Year of the reign of King George the Third. London, to wit,-Be it remembered, that on Thursday next after the morrow of All Souls in this same term, before our lord the King, at Westminster, comes Andrew Millar, by John Stirling his attorney, and brings into the Court of our said lord the King now here, his bill against Kobert Taylor, in the custody of the marshal, &c. a plea of trespass upon the case : and there are pledges of prosecuting, to wit, John Doe and Richard Roe. Which said bill follows in these words, to wit, London to wit, Andrew Millar complains of Robert Taylor, being in the custody of the marshal of the Marshalsea of our lord the King himself; for this, to wit, that whereas the said Andrew, on the 20th day of January in the year of our Lord 1763, to wit, in the parish of St. Mary le Bow, in the ward of Cheap, was, and hath ever since been, and still is, the true and only proprietor of the copy of a certain book of poems, intituled " The Seasons, by James Thomson," And whereas the said Andrew, after he became and whilst he was proprietor of the said copy as aforesaid, to wit, on the day and in the year above mentioned, in the parish and ward aforesaid, did, at his own proper costs and charges, cause 2000 books of the said copy to be printed for sale, and afterwards, to wit, on the 20th day of May, in the third year of the reign of His present Majesty, in the parish and ward aforesaid, had a great number, to wit, 1000, of the: 4 BURR. 3306. MILLAR V. TAYLOR 208 said books so printed of the said copy intituled, " The Seasons, by James Thomson," remaining in his hands for sale; nevertheless the said Robert, not ignorant of the premisses, but contriving and fraudulently intending to deprive the said Andrew of the whole profit and benefit of the said 1000 books of the said Andrew, intituled, "The Seasons, by James Thomson," then remaining in his hands for sale, and injuriously to prevent the sale thereof; afterwards, to wit, the day and year last above mentioned, to wit, in the parish and ward aforesaid, did publish and expose to sale several other books, intituled, "The Seasons, by James Thomson," to wit, 1000 other books of the like copy, which last-mentioned books, intituled, " The Seasons, by James Thomson," had been injuriously printed by some person or persons without the licence or consent of the said Andrew; and then and there sold several, to wit, 20, of the said last-abovementioned books so printed as last mentioned ; he the said Robert then and there well knowing that the same had been so injuriously printed without the licence or consent of the said Andrew; by means whereof, the said Andrew was deprived of the profit and benefit of the said copy and book, intituled, "The Seasons, by James Thomson," and of the said [2306] 1000 books so printed at his costs and charges as aforesaid, and then remaining in his hands unsold: whereby the said Andrew is injured and hath damage to the amount of £200; and therefore he brings this suit, &c. The defendant pleaded the general issue, " not guilty." And, upon the trial, the jury found a special verdict, as follows,-that the said work intituled "The Seasons" is an original composition in one volume, composed by James Thomson, Esq; a natural born subject resident in that part of Great Britain called England ; and first printed and published by the said James Thomson, the author, for his own use and benefit as the proprietor thereof, at several times, between the beginning of the year 1727 and the end of the year 1729, in the City of London ; the same having never before been printed elsewhere. And the said jurors upon their said oath further say, that the said Andrew Millar, in the year 1729, purchased the said work called "The Seasons," for a valuable and full consideration, from the said James Thomson, the said author and proprietor, to him and his heirs and assigns for ever. And the said jurors upon their said oath further say, that from the time of the said purchase, the said Andrew Millar hath printed and sold the said work as his property, and now hath and constantly hath had a. sufficient number of books of the said work exposed to sale at a reasonable price. And the said jurors upon their oath further say, that before the reign of Her late Majesty Queen Anne, it was usual to purchase from authors the perpetual copy-right of their books ; and to assign the same from hand to hand, for valuable considerations ; and to make the same the subject of family settlements, for the provision of wives and children. And the said jurors upon their oath further say, that the Stationer's-Company, to secure the enjoyment of the said copy-right as far as in them lay, made several by-laws, particularly the two following: At an...

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