On World Intellectual Property Day, the modern Irish constitutional relevance of an Irish angle on Donaldson v Beckett (1774)

Arthur Murphy via Wikpedia
Arthur Murphy by Nathaniel Dance
Today is World Intellectual Property Day. In 2000, the World Intellectual Property Organisation (WIPO) designated 26 April – the day on which the WIPO Convention came into force in 1970 – as World IP Day to increase general understanding of IP and to celebrate “the role that intellectual property (IP) rights play in encouraging innovation and creativity”. I’ve marked it in the past (here and here) on this blog. To join in this year’s celebrations, Frank McNally’s Irishman’s Diary in yesterday’s Irish Times considered “Ireland’s chequered history of copyright law“. It is illustrated with a picture of a young reader in the Long Room of Trinity College Dublin’s Old Library (sadly, the young reader does not appear in the cropped version of the photograph in the print edition); and the column ends with an account of the dispute over St Columba’s copying of St Finian’s copy of the Vulgate of St Jerome (though not mentioned in the column, these elements of the story are connected, since a highlight of the Old Library is the Book of Kells, written in the scriptoria of Columba’s monasteries in Kells and Iona).

Apart from these obvious tropes, the centrepiece of McNally’s Diary is a genuinely interesting story about Roscommon-born, but London-based, writer and lawyer Arthur Murphy (1727–1805) (pictured above left). Though not all that well-remembered today, he is an important enough playwright to merit entries in the Oxford Dictionary of National Biography (sub req’d; an earlier version is here (open access)) and the Dictionary of Irish Biography (open access) as well as a biography as recently as 1979. As McNally says

he was a leading London barrister of his time and a successful comic dramatist. He was also for a while a newspaper columnist. … Murphy’s most notable cases included one concerning, of all things, copyright. … Murphy, it turns out, was one of the protagonists in a landmark ruling of 1774, by which the British House of Lords rejected the idea that book publishers could own the rights to a work in perpetuity. He had argued against this, in fairness. As a result of the case, book owners’ rights remained limited to a maximum 28 years; a privilege itself relatively new then, having been granted only by an Act of 1709.

The 1774 case (noted briefly on this blog here) is one of the most famous in the history of copyright; it is Donaldson v Becket (1774) 2 Bro PC (2d) 129, 1 ER 837, [1774] EngR 47 (22 February 1774) (pdf); (1774) 4 Burr 2408, 98 ER 257 (pdf). Murphy was on the right side of history in it. He was led by the Attorney General, Edward Thurlow, who would go on to serve four Prime Ministers as Lord Chancellor, and Sir John Dalrymple, 5th Earl of Stair, who was a scion of a great Scottish legal family. In the earlier case of Millar v Taylor (1769) 4 Burr 2303, 98 ER 201, [1769] EngR 44 (20 April 1769) (pdf) (wikipedia), Lord Mansfield, for the majority, had held that copyright conferred a perpetual common law right to publish a work:

I use the word “copy,” … to signify an incorporeal right to the sole printing and publishing of somewhat intellectual, communicated by letters. It has all along been expressly admitted, “that, by the common law, an author is intitled to the copy of his own work until it has been once printed and published by his authority;” … The property of the copy, thus narrowed, may equally go down from generation to generation, and possibly continue for ever; …

He justified this conclusion on the basis of a classical Lockean labour-desert theory: “… it is just, that an author should reap the pecuniary profits of his own ingenuity and labour. It is just, that another should not use his name, without his consent”. And he held that this position was not altered by the Statute of Anne (the Copyright Act 1710): the Act “is no answer. We are considering the common law, upon principles before and independent of that Act … it is, I think, impossible to imply this Act into an abolition of the common-law right, …”.

In Donaldson v Becket, Murphy, with Thurlow and Dalrymple, persuaded the House of Lords to overrule this high authority. It was no mean feat; Lord Mansfield was the pre-eminent judge of the age; and he was overruled only half-a-dozen times in a 32-year career as Lord Chief Justice of the King’s Bench. They argued that the “notion of a perpetual privilege and monopoly, … were it established, would be fatal to the interest of letters, and the fame of every valuable author”. They persuaded a bare majority of the judges advising the House of Lords; as Brown reports “… five of them … were in favour of the perpetuity, or common law right; and the other six … were of opinion against it”; and, as Burrows reports, the majority held that any common law right had been displaced by the Statute of Anne.

These cases were the culmination of a century of politics and litigation about the nature and extent of copyright, and the story is well told by Mark Rose Authors and Owners: The Invention of Copyright (Harvard University Press, 1993), Brad Sherman & Lionel Bently The Making of Modern Intellectual Property Law (Cambridge University Press, 1999) chapters 1&2, Ronan Deazley On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775) (Hart Publishing, 2004), and Isabella Alexander Copyright Law and the Public Interest in the Nineteenth Century (Hart Publishing, 2010) chapter 2. As a consequence of Donaldson v Becket, the nature and extent of copyright were determined by the Statute of Anne. McNally picks up the story:

For almost a century after it was introduced in England, that law did not apply this side of the Irish Sea. Thus, throughout the 1700s, Dublin was a haven for book piracy, with titles freely republished here and then often finding their way back into the English market. … That all ended with the Act of Union.

Thereafter, various amendments and supplements to the 1710 Act were consolidated in 1911; after Independence, that Act was was replaced in Ireland in 1927, 1963, and 2000. Each Act has been more extensive than its predecessor. Notwithstanding such comprehensive legislation, the labour-desert theory of copyright has gained some traction in modern Irish law. In Phonographic Performance Ireland Ltd v Cody [1998] 4 IR 504, 511, [1994] 2 ILRM 241, 247, (noted here on this blog; discussed by Rónán Kennedy “Was it Author’s Rights All the Time? Copyright as a Constitutional Right in Ireland” (2011) 33 Dublin University Law Journal (ns) 253–284 (SSRN)), Keane J said:

The right of the creator of a literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of Article 40.3.2° and Article 43.1 of the Constitution of Ireland, 1937, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. … The statements in some English authorities that copyright other than by statutory provision ceased to exist with the abolition of common law copyright are not necessarily applicable in Ireland.

Keane J did not tell us which English authorities he had in mind, but doubtless they included Donaldson v Becket. He made these comments in the context of an application pursuant to Order 39, Rule 1 (RSC), and his decision on that point was reversed by the Supreme Court without reference to his constitutional dictum. Indeed, despite his reversal on the Order 39, Rule 1 (RSC) issue, his dictum has prospered. Smyth J considered it in Sweeney v NUI Cork (t/a UCC Press) [2001] 2 IR 6, [2001] 1 ILRM 310, [2000] IEHC 70 (9 October 2000) [17]. In EMI Records v Eircom Ltd [2010] 4 IR 349, [2010] IEHC 108 (16 April 2010) [28]-[29] Charleton J held that statutory copyrights were identified by Keane J in Cody “as having a pre-legislative origin and super-legislative effectiveness as part of the unenumerated fundamental rights under the Constitution” and he regarded “that authority as both binding and sound”. He made comments to similar effect in EMI Records v UPC Communications Ireland Ltd [2010] IEHC 377 (11 October 2010) [85], as did Cregan J in the High Court in Sony Music Entertainment (Ireland) Ltd v UPC Communications Ireland Ltd (No 1) [2015] IEHC 317 (27 March 2015) [122]-123]. On appeal to the Court of Appeal in the latter case, [2016] IECA 231 (28 July 2016) [18] (noted here on this blog) Hogan J (Finlay Geoghegan and Faherty JJ concurring) held that “the right to be identified with a creative work and to enjoy protection whereby others are not allowed to copy it without permission … [is] protected by the Constitution”. It may be that, in an appropriate case in which the limits of statutory protection of copyright are reached, constitutional considerations may come into play, and Arthur Murphy’s legacy in Donaldson v Becket may be re-examined. A Millar v Taylor perpetual copyright is vanishingly unlikely, but other aspects of the ghost of that case may persist, and a constitutional remedy for an infringement of the constitutional right identified by Keane J in Cody cannot be ruled out.

Finally, there were two letters in yesterday’s Irish Times in praise of McNally’s Irishman’s Diary:

Sir, – A word of thanks to your columnist Frank McNally. His Irishman’s Diary, which is always interesting, informative and entertaining, is a much-needed relief from the the worrying and sad news which cannot but dominate the media in these grim days. – Yours, etc,

Dublin 16.

Sir, – I never cease to be amazed at the wonderful and divergent topics Frank McNally deals with in An Irishman’s Diary. Keep up the great work. – Yours, etc,

Co Kildare.

Hear hear! Meanwhile, happy World Intellectual Property Day.