fair use history

In my paper The Pre-History of Fair Use 76 Brooklyn Law Review 1371-1412 (2011) I investigate the origins of copyright’s fair use doctrine. Here are some of the highlights:

When and where did fair use begin?

Fair use does not begin with early American cases such as Folsom v. Marsh in 1841, as many accounts assume. The fair use doctrine began over a century earlier when English courts were considering issues of republishing and abridgment (i.e. remix culture in the 1700’s).

The clearest early pronouncement of the fair use doctrine was made by Lord Hardwicke in the 1741 case Gyles v. Wilcox:

“A real and fair abridgment, . . . may with great propriety be called a new book, because the invention, learning, and judgment of the author are shewn in it, and in many cases abridgments are extremely useful.”

Copyright and Fair Use Evolved Together from the Beginning

The Statute of Anne (1710), the first copyright act, gave the copyright owner “the sole liberty of printing and reprinting” works in their entirety (Statute of Anne, 8 Ann., c. 19 (1710) (Eng.). The defendant publisher in Gyles v. Wilcox urged the court to adopt a similarly narrow reading—arguing that the Statute of Anne, as an act of monopoly, should be strictly construed and should not apply to abridgments (i.e. to shorter extracts). Lord Chancellor Hardwicke rejected this interpretation, saying,

I am quite of a different opinion, and that it ought to receive a liberal construction, for it is very far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompence for their pains and labour in such works as may be of use to the learned world. (Gyles v. Wilcox 26 Eng. Rep. 489, 490).

Hardwicke did not feel confined to a narrow or precise reading of the first copyright act. Instead he expanded the rights of authors by adopting a  purposive reading of the statute. In integral part of Hardwicke’s pro-copyright expansion of authors rights was his attempt to find a balanced position on the legality of abridgments. Distinguishing reprints with minor alterations from “true abridgments,” Hardwicke held that,

“where books are colorably shortened only, they are undoubtedly within the meaning of the [Statute of Anne], and are a mere evasion of the statute, and cannot be called an abridgment.”

But the lord chancellor also noted that

this [proposition] must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new book, because not only the paper and print, but the invention, learning, and judgment of the author is shewn in them, and in many cases are extremely useful, though in some instances prejudicial, by mistaking and curtailing the sense of an author.

These sentiments remain at the core of the modern fair use doctrine in the United States.

Some key lessons:

  • Copyright has always involved some balancing between authors rights and users rights. Fair use is part of the legal tradition of every country that traces its copyright law back to the Statute of Anne.
  • Fair use did not take away from authors rights, it made it possible for the courts to take a purposive reading of the copyright act that actually expanded authors rights.

If you have read this far, you might also be interested to know …

How was the case of Gyles v. Wilcox resolved?

The court allowed an interim injunction and sent the case off for what was in effect an arbitration proceeding by a special master assisted by “two Persons skilled in the Profession of Law”. The result of this court-assisted arbitration proceeding was an agreement that the defendant’s work was a fair abridgment outside the Statute of Anne’s scope. Accordingly, the injunction was dissolved.

Was Gyles v. Wilcox the first copyright case under the Statute of Anne?

Not by a long shot. Recent historical research by Tomás Gómez-Arostegui shows that, although unreported, Tonson v. Baker, C9/371/41 (Ch. 1710), was the first lawsuit filed under the Statute of Anne. In that case, Tonson was able to secure an ex parte temporary restraining order despite his acknowledgment that the defendant’s book was not identical to his own; he merely argued that it was the “Same in Substance & Effect.” See H. Tomás Gómez-Arostegui, The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L.J. 1247 (2010).