Simon Stern

Simon Stern,

“From Author’s Right to Property Right”

This paper examines the arguments developed in eighteenth-century England for regarding copyright as a property right.  The Act of Anne (1710) uses the language of property sparingly, speaking of protection for “authors and proprietors of . . . books and writings,” and explaining the need to safeguard “property in every . . . book” to which the statute applies.  As Ronan Deazley has noted, the original draft of the statute was thoroughly drenched in proprietary language that the drafters minimized (On the Origin, 41).  The statute thus created the possibility of conceiving copyright in terms of rights, duties, or actions that need not be mapped onto a view of the text (or copy) as a form of property.

Commentators generally agreed that authors were entitled to decide whether and how to publish.  This most fundamental author’s right was set out by advocates of the Act of Anne (the author “has certainly a Right to choose the Hand by which he will convey his Work to the Publick”), by Blackstone (the author has a “right to dispose of [the] . . . work as he pleases”), and by De Grey C.J. in Donaldson (the author has the “sole Right to dispose of his Manuscript as he thinks proper,” but no “Right or Property . . . detached from [the] Manuscript”).  This paper will explore how this premise, concerning authorial control, was developed in proprietary terms, rather than supporting a view of copyright as protecting reputation or privacy.

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