Creating a Public Domain in Eighteenth-Century England

Although plagiarism and imitation have long been familiar topics of literary study, the legal issues surrounding these practices have not. The self-reflexive turn that has prompted literary scholars to study the emergence of their own discipline—along with related questions such as the assignment of aesthetics to a distinctive sphere, the processes of canon formation, and the professionalization of authorship—has also spawned a significant amount of research on the interaction between copyright law and the production and circulation of literature.¹ These developments have been compounded by a broader interest in the cross-fertilization between law and literature. As questions about legal modes of reasoning and analysis have become more prominent in literary studies, there has also been a shift in the discussion of topics such as censorship, still an important focus of research on the legal regulation of literature, but now more likely to be studied in connection with other types of regulation, such as copyright and libel.² In consequence, literary scholarship in this area now tends to engage with the various legal arenas in which these issues arise and to delve into the logic of particular legal decisions so that law’s dynamism forms a counterpart to a mobile literary field, rather than serving as a stable framework within which we see literary change. One area that has only recently begun to receive this kind of attention involves the history of public domain, a subject that comes into greater visibility through the development of copyright law in the nineteenth century and is often seen as a back-formation comprising the various literary ingredients that could not be incorporated into copyright’s expanding reach. However, as I argue below, eighteenth-century copyright law and literary practice reveal some aspects of public-domain logic already at work, operating implicitly as a backdrop that helped to define the limits of copyright.

Literary research on authorship and copyright has proceeded in two related forms. On the one hand, a large body of scholarship has examined the features that confer legal protection on some forms of writing (“works”) but not others and has asked how changing views of the object of copyright bear on the conceptualization of the author as the agent who is responsible for a text and who accordingly deserves credit or blame. Although some scholars have considered the copyrightable work and the authorial worker in tandem, research in this vein has often been less concerned with the vicissitudes of copyright’s protective ambit than with the author’s role in the relations that the law establishes. The result, particularly in most of the research on eighteenth-century English literature, has usually been to bracket questions about the legal specification of copyright’s scope and instead to consider what it means to present the author as a holder of rights over a text, how to make sense of a writer’s investment in (or skepticism about) that self-conception, and how texts bear the signs of their legal status.³ Broadly speaking, scholars pursuing these inquiries have been most interested in the forms and consequences of authorship as a legal status. Another line of research has focused on the interrelations between copyright law and literary culture more generally. Research in this area takes up questions such as how stricter or looser copyright protection may spur or impede literary production, how the constitution of the public domain stratifies the reading public by altering the landscape of available texts, how publishers’ views of copyright protection affect their decisions about what to print and their dealings with authors, and how all of these arrangements bear on the forms of literary professionalism.⁴

In what follows, I attempt to bridge these two approaches but will focus primarily on the latter, looking at how the logic of the public domain informed eighteenth-century thought about copyright law. From one perspective, the public domain simply comprises whatever falls outside of copyright’s ambit. As relates to the scope of the copyrightable object, the law excludes from protection whatever is too conceptual or inchoate to count as “expression” in modern copyright doctrine, but includes within its protection those “nonliteral” aspects of the work that, although not reducible to a string of words, find sufficiently concrete delineation in the text as to be recognizably anchored in it (thus, for example, characters and plots enjoy some degree of copyright protection).⁵ As relates to the duration of copyright, the law allows all works to fall into the public domain after a certain period of time—in Britain and the United States, currently seventy years after the death of the author.⁶ Another conception of the public domain focuses not on the residue of the uncopyrightable and the out-of-copyright, but on the question of what writers need in order to be able to create new work.⁷ From this perspective, the public domain is an engine of literary production, characterized more by its generative potential than its role as a home for leftovers. Framed in terms of the Lockean property theory that played such an influential role in eighteenth-century elaborations of copyright’s basis, the public domain could be characterized as the means of ensuring that “enough, and as good” material remains available to others.⁸ Neither perspective can tell us how broad or narrow the scope or duration of copyright should be, but the second one provides a way of seeing the public domain as a coherent and related set of resources that can account for both the scope and duration of copyright, rather than treating these materials as the happenstance by-products of other decisions. Thus, on the view presented here, the public domain did not spring into being as the obverse of the printing rights afforded by the Act of Anne (1710), nor does its existence date from the establishment of doctrines such as fair use (or fair dealing) in the mid-nineteenth century; rather, the public domain developed slowly and intermittently out of practices and assumptions already in place in the seventeenth century and has been further bolstered (and hindered) by various legal and statutory developments over the past three hundred years, insofar as those developments can be seen to reflect an evolving set of ideas about the need to maintain conditions that foster creative production.

In the eighteenth century, questions of copyright’s scope were only beginning to be raised and were largely left unresolved. Piracy, understood as the unauthorized reproduction of an entire text, was the core object of the statutory copyright prohibitions that came into effect in the Act of Anne (1710).⁹ Efforts to rationalize this policy occasionally addressed other forms of copying—such as sequels, imitations, and abridgments—and although some writers (especially Defoe and Richardson) had much to say about the illegitimacy of these methods, the marketplace abounded in texts and genres that depended crucially on various imitative practices, and the courts rarely even registered the possibility that the statute might operate to prohibit them. The issue of copyright’s duration was far more prominent: on one view, which ultimately prevailed (in 1774), copyright lasted no longer than the twenty-eight-year maximum provided in the Act of Anne; on the other view, promoted by the bookselling industry, copyright had its source in the common law and therefore lasted in perpetuity. What is easily missed in the arguments on both sides—ranging from derisive remarks about property in texts as an “airy Phantom” to outraged declamations about literary theft and robbery—is that none of these criticisms sought to challenge the statute’s validity.¹⁰ They were not designed to show that the statute had no object; rather, the disputants were concerned with the question of what kind of protection existed before the statute came into effect or outside of its temporal limits. The booksellers might have been content with the answer that the common law prohibited piracy (as defined in the statute) and nothing more—but that answer was hardly a foregone conclusion. Although the argument about the common-law origins of copyright was posed as an argument about its length, the answer could have implications for its scope because a common-law right (given its extrastatutory basis) would need to have contours that the courts also defined, whereas the statute appeared to provide a clear definition by extending no further than verbatim reprints. Thus, although questions about copyright’s scope were not as hotly debated, some of the skepticism about common-law rights—skepticism voiced by writers themselves, as well as by other commentators—stemmed from background assumptions about the need for access to the materials of literary production. Writers such as Henry Fielding and James Boswell, who seem to have considered the statutory arrangement perfectly agreeable, showed little enthusiasm for a common-law right, having apparently concluded that a perpetual copyright, although seemingly desirable for the would-be owner, would come at too high a price.¹¹

One reason whythe eighteenth-century debates are not readily transposable into modern terms is that, in contemporary discussions of the public domain, the roles are reversed: we no longer have uncertainty about the duration of copyright (the issue remains controversial, but not ambiguous), and so questions about the public domain are generally directed to copyright’s scope. Moreover, since writers largely took for granted the availability of plots, characters, devices, verse forms, and the other ingredients of imaginative literature, there was no need to defend a conception of the public domain and no need for a term to cover an array of relatively implicit features that would fall into this category—although there were occasional references to textual material that was publici juris (“of public right,” or “open to the public”).¹² Any attempt to understand the role of the public domain in eighteenth-century copyright thought about copyright, then, must rely on unstated assumptions as well as explicit comments about literary practices and attitudes.

A history of eighteenth-century literature through the lens of copyright underscores the law’s significance in the changing literary culture and shows that many writers, rather than simply accepting others’ interpretations of the new legal regime, contributed actively to the development of the law in ways that presented a diverse array of perspectives on its functions and meanings. Defoe, for example, not only was a beneficiary of the new opportunities for political journalists in the years after the lapse of the Licensing Act, but also spent the better part of a decade advocating for the anti-piracy legislation that was adopted in the Act of Anne (1710).¹³ Pope drew aggressively on the new copyright regime as he improvised a literary career, and he was virtually alone among eighteenth-century writers in his ability to exploit the statutory provisions at the booksellers’ expense.¹⁴ Johnson, although sometimes characterized as an advocate for strong copyright laws because of his proposals for a post mortem term of protection, was also sensitive to the needs of working writers, and, to that end, he emphasized, for example, the legality of abridgments.¹⁵ Both through their conduct and their statements about acceptable and inexcusable literary practices, all of these writers offer access to various conceptions of the public domain.

To clarify the place of the public domain in eighteenth-century literary culture, it is helpful to turn first to the lapse of the Licensing Act in 1695. Renewed periodically after its initial adoption in 1662, this statute had placed control of the publishing marketplace in the hands of the Stationers’ Company, the London guild of printers and booksellers.¹⁶ In exchange for its exclusive control over access to the presses, the guild was enlisted, along with several officially designated licensers, to guard against the publication of “heretical schismatical blasphemous seditious and treasonable” books (in the language of the 1662 statute). Through its internal regulations, the guild had established a convention that gave exclusive and perpetual control over any publication to the first member who entered the title in the Stationers’ Register. The registered title and the rights associated with it were known as the “copy” of the publication, and the acquisition of a copy (or the “right of copy”) was limited to guild members. Membership was largely restricted to Londoners, and although the guild included various participants in the printing industry, the most powerful group was made up of copy-owning booksellers (who today would be called publishers). From their perspective, there was no doubt that copies were a form of property, in the sense that they could be owned or exchanged by members of the guild on the same terms as a printing press. The booksellers did not, however, refer to copies as “literary property” (a term that came into currency around the middle of the eighteenth century), and their conception of the property right was restricted to the right to print the text; it did not cover sequels, imitations, and various other forms of copying that modern copyright law regulates. Given this very role-specific view of the property right—that is, a right that existed only in the hands of those who were legally authorized to print books—it is hardly surprising that authors generally did not share a conception of the “copy” as a form of property in the early eighteenth century and were slow to adopt this conception and the proprietary mindset that accompanied it.

Opposition to the stationers’ monopoly had caused the Licensing Act to lapse between 1679 and 1685, and, after renewed opposition in the early 1690s, the preprint licensing scheme expired in 1695.¹⁷ In retrospect, the lapse of the Licensing Act may be seen as having inaugurated a new era of press freedom, one marked by a rapid increase in political journalism (creating new job opportunities that benefited writers such as Defoe and Swift).¹⁸ The opponents to the statute, however, did not lean primarily on arguments about freedom of the press. Such arguments were circulating in the 1690s and may have helped to foster animosity toward the licensing regime, but the justifications put forth in Parliament involved monopolistic guild practices that served to inflate prices and to keep inaccurate texts in print and arbitrary licensing standards that were ineffective in suppressing dangerous books.¹⁹ In 1693, John Locke sought to persuade his friend Edward Clarke, a Whig MP, to block the statute’s renewal. Locke argued that Parliament should “have some care of Book buyers as well as all of Book sellers.” The stationers’ monopoly, he complained, effectively prevented the publication of cheap and accurate editions of classical texts:

[T]he Company of Stationers … haveing got a Patent for all or most of the Ancient Latin Authors (by what right or pretence I know not) claime the text to be theirs and soe will not suffer [others to supply] fairer and more correct Editions…. [Thus] a monopoly is put into the hands of the company of ignorant and lazy stationers…. By this monopoly also of these ancient authors noe body here, that would publish any of them a new with comments or any other advantage can doe it without the leave of the learned judicious stationers.²⁰

Commenting sardonically on the stationers’ claims to own “the Ancient Latin Authors,” Locke highlights the problem that no one can produce modern editions of the classics because the “learned judicious stationers” stand in the way, too apathetic to publish quality texts themselves, but too self-interested to let anyone else do it. Locke’s complaints about the difficulties of providing “fairer and more correct Editions” to the public were prompted in part by the guild’s opposition to one of his own editorial projects—a bilingual edition of Aesop’s fables, conceived as a children’s book, that Locke had planned in the early 1690s but was unable to publish until 1703.²¹ In the event, these arguments were not immediately effective in terminating the Licensing Act, but although it was extended again, the opponents succeeded in limiting the extension to two years, thus imposing the shortest renewal term since the statute’s introduction thirty years earlier. Locke’s observations about public access to texts figured among the most trenchant criticisms raised in opposition to the statute. When it was defeated, in 1695, he repeated the argument in a memorandum for Clarke, insisting that “noebody should have any peculiar right in any book which has been in print fifty years.”²²

Even the opponents of the Licensing Act seem to have expected that a modified and more acceptable version would soon be adopted.²³ New legislation was quickly proposed, but although the booksellers frequently tried, over the ensuing years, to restore the protection they had formerly enjoyed, they did not succeed until 1710. One reason for this delay involved their inability to rationalize a policy that others perceived as a restraint on trade. Despite the inefficiencies of postprint censorship, the English seem to have found this policy acceptable, and, as a result, the old arrangement, which gave the stationers a monopoly in exchange for their efforts to police the printing houses, no longer seemed appealing. Indeed, the stationers initially resorted to scare tactics, seeking to recover their lost powers on the ground that without preprint censorship the country would drown in blasphemous and libelous publications, but that effort proved unavailing.²⁴ The idea of a property right suggested itself as an alternative justification. Guild members had, in fact, treated copies as a kind of chattel during the seventeenth century (e.g., by using them as collateral for loans),²⁵ but at that time there had been no cause to develop a formal account that would rationalize an analogy between copies and more familiar kinds of property. The booksellers now sought to provide such an account, but their arguments remained fairly rudimentary. Generally, they simply pointed to their own conventions, saying that having paid money for a copy, they were entitled to assume that they could exploit the investment in the same way as any other chattel or piece of real estate. Occasionally, they argued that authors were entitled to control their writings, and, if the condition of publication was a transfer of that right to the bookseller, then the latter acquired the same degree of control.²⁶ Neither of these arguments deals with the many limits on property rights in relation to the claims of neighbors or the public interest, nor even with the boundaries of the property in question. This presumably appeared unnecessary because the booksellers were focused primarily on reinstating the anti-piracy measures of the seventeenth century. They seem to have taken it for granted that any such reinstatement would also endow them, once again, with a monopoly on access to print. Those provisions would have recreated a familiar world, with predictable competitors and predictable forms of commercial rivalry in the print marketplace, obviating any need to delineate more precisely the nature and bounds of the booksellers’ property.

Indeed, even during the lawless period between 1695 and 1710, the booksellers’ main worry involved unauthorized verbatim reprints. Although the extent of unauthorized publication during these years is unclear, the new climate was propitious for insurgent publishers such as Benjamin Bragg and Henry Hills, Jr. (known as “the Pirate Printer”).²⁷ The rhetoric of literary piracy became a much more regular feature of English print culture in this period and would persist throughout the eighteenth century.²⁸ Without any statutory underpinnings for the “right of copy,” new entrants in the publishing marketplace were free to print what they liked and would have seen little point in reprinting less than the full text of any book they chose—except when they were printing it serially. Hence there was no reason to experiment with innovative methods of imitating, excerpting, or revising. The print marketplace did not, for example, offer new varieties of abridgments, arguably a kind of semi-piracy that might have accompanied the full-scale piracies—and this absence would prove significant: having lacked any motive to raise the issue during their lobbying efforts, the booksellers would later resort to both the courts and the legislature in an unsuccessful effort to have abridgments treated as a kind of piracy.²⁹ The generous assortment of extracts in Edward Bysshe’s vade-mecum, The Art of the English Poetry (1702), offers perhaps the best candidate for a novel kind of quasi-piracy, but although Bysshe was often accused of bad taste, no one seems to have accused him of legal impropriety.³⁰ The final years of the century did see the advent of new techniques, such as John Dunton’s question-and-answer format in the Athenian Mercury, but this was not a new permutation on the existing forms of copying—nor, when he later complained that others who set up their own “question-projects” had stolen his idea, could he point to an emergent form of misappropriation that had become possible only because the Licensing Act’s protections were in abeyance.³¹ In short, the booksellers had no reason to elaborate a theory of the copy as a distinctive kind of property because the challenge of unauthorized reprinting that they faced during this period was a familiar one, already understood to be covered by the prohibition (now lacking any legal effect) exemplified in their guild practices.

Another significant feature of the period between 1695 and 1710 is the absence of litigation, in the common-law courts, involving infringement claims. Despite their insistence that copies were and always had been a form of property, so that piracy was and always had been a form of theft, the booksellers refrained from testing the issue at common law. Instead, their frequently rehearsed claims about common-law rights were aimed at producing a legislative fix. A legal victory would have obviated the need for legislation, but a legal defeat, as the booksellers doubtless recognized, would have undermined their arguments, thus creating a risk that even if Parliament stepped in, the weakened rhetorical basis for renewed protection would translate into a weaker statutory regime. The booksellers’ behavior in this regard must reflect a calculated decision because they did not hesitate to invoke the language of common-law rights during this period, and they went to court soon after the legislation came into effect.³² This conduct was especially telling in light of the analogies to criminality that figured prominently in rhetoric of those who advocated for the protection of copies. Defoe, for example, inveighed bitterly against piracy, likening it to theft, robbery, house-breaking, arson, and kidnapping;³³ however—like the booksellers whose complaints he echoed—he seems to have lacked the courage of his convictions or, more likely, to have regarded this litany of crimes as a kind of strategic hyperbole because he evidently took it for granted that only an act of Parliament could reach “Press-Piracy,”³⁴ unlike the seafaring variety, which could be punished at common law. Moreover, when he came to endorse a legislative solution, he said nothing about the criminal penalties that would have been appropriate in light of his rhetoric and instead directed his attention to civil sanctions—just as the booksellers did in their parliamentary petitions. This strategic avoidance of litigation, accompanied by repeated assertions about the very right that a lawsuit could have established, represents a pattern we will encounter again when we consider the booksellers’ resort to Chancery litigation in the mid-eighteenth century.

In the course of the fifteen-year campaign to reinstate legal protection for the right of copy, the booksellers eventually adopted the view (promoted by Defoe, among others) that authors were being unjustly deprived of control over their works and that a legal bar on unauthorized publication was the only way to ensure that authors would receive due compensation for their efforts.³⁵ Although effective in the short term, this strategy would ultimately undermine the booksellers’ goal of maintaining perpetual copyright protection. If Defoe, by virtue of his defense of authors’ rights, became one of the unacknowledged drafters of the 1710 statute, which many regarded as merely a “booksellers’ bill,” then a later turn of the same logic would complete the circle: in using the figure of the dispossessed author to advance their own interests, the booksellers selected a cover story that ultimately proved all too plausible and that helped to promote the logic of the public domain. The result, when the House of Lords declared in 1774 that protection lasted no longer than the statute provided, was to vindicate the rights of both authors and readers.

In several other respects, the statute also promoted aims now associated with the public domain. As noted earlier, the statute limited its protections to the whole unit of publication (forbidding the reprinting of “any Book or Books”), thus allowing for various forms of partial copying. Excerpts, abridgments, anthologies, and sequels, for example, were tolerated throughout the eighteenth century.³⁶ The statute made no provision for translations, and the courts concluded that books could be translated into another language without any need to consult the author or copy owner—a view that persisted until well into the nineteenth century.³⁷ In a provision that appears never to have been applied, but whose inclusion is nevertheless telling, booksellers who sold their wares at “High and Unreasonable” prices could be summoned to appear before a legal official and compelled to explain “the Dearness and Inhauncement of the Price,” which the official could “Limit and Settle” at a “Just and Reasonable” figure; any further efforts to sell the book at the higher price could incur a fine of five pounds per book.³⁸ Foreign imports of books in other languages—including classical languages—were now permitted. The act extended to Scotland and expressly provided for penalties under Scottish law, but it did not reach Ireland; this would prove to be a source of conflict because while the statute did not treat imported Dublin reprints as piracies, that is precisely how the London booksellers saw them.³⁹ Authors were allowed to register copies in their own names, by using the Stationers’ Register, and, most significant of all, the term of protection was limited to fourteen years, renewable for a second term of the same length if the author was still alive when the first term ended. For books published before the statute’s passage, the term of protection was twenty-one years. Taken together, these provisions might be seen as effects of the anti-monopoly sentiment mentioned earlier: if the “right of copy,” conjoined with a monopoly on access to print, amounted to an unreasonable restraint on trade, then opening up access to presses and the Stationers’ Register, along with term limits, measures against price-gouging, and the elimination of an importation ban could transform the “right of copy” into a reasonable restraint on trade. To say that these provisions amount simply to an anti-monopoly measure, however, carries the risk of glossing over the support for the public domain that goes with them. Of course, to the extent that the Act of Anne sought to prevent the recreation of the booksellers’ monopoly, the statute promoted public interests. And again, as noted earlier, the public domain was not yet a distinctive concept that Parliament might have counterposed against the monopoly. Yet the measures in question, even if motivated by hostility toward the old monopoly, took a form that also promoted public access to texts. Parliament might, for example, have contented itself with breaking the stationers’ control over printing presses and the register book, thereby allowing for wider access to print, without actively facilitating it. The provisions concerning importation, pricing, and the term limits, on the other hand, introduce specific means of answering the kind of concerns that Locke had raised in the 1690s.

Although relieved to have their copies protected once again, the booksellers were dismayed by the term limits and managed to ignore them through the expedient of requiring authors to sell the copy, for once and all, as a condition of publication. The renewal period became irrelevant (because the bookseller had already acquired all rights), and, if threatened with a rival edition after the statutory period had expired, the copy-owner would seek an injunction rather than suing under the statute. Several implications that were crucial for literary culture followed from the booksellers’ success, for most of the century, in evading the statutorily limited term. If copyright protection for “old” books had lapsed in 1731, as the statute contemplated, the resulting landscape for readers and prospective authors would have been radically different. Doubtless, the London booksellers would have tried to maintain a de facto monopoly, just as they sought to do in the last quarter of the century.⁴⁰ Nevertheless, even if some of these efforts had succeeded, it would have taken only a few innovative newcomers, plus their imitators, to produce enough disruption to change the whole industry. In 1774, a jubilant pamphleteer celebrated the legal affirmation of the term limits by proclaiming that “the Works of Shakespeare, of Addison, Pope, Swift, Gay, and many other excellent Authors of the present Century, are, by this Reversal, declared to be the Property of any Person.”⁴¹ Of course, this list of excellent authors, which implicitly gestures at a developing canon, is itself the product of a system that had been financed by a regime of perpetual copyright protection. The Tonsons, perhaps the most powerful and influential booksellers of the era, published works by all the writers on this list except for Swift and were key players in the battle to maintain perpetual copyright: Jacob Tonson II worked energetically in the 1730s to oppose the threat of Robert Walker’s cheap Shakespeare editions, and Jacob Tonson III was a frequent litigant, going up twice against Walker (in 1739 and 1752) over editions of Paradise Lost, and acting in 1761–62 as the named plaintiff in a dispute over the Spectator that squarely confronted the question of copyright’s duration at common law.⁴² Among the many unanswerable questions that this hypothetical exercise raises is how a different canon might have been formed if access to older texts had begun in the early 1730s, rather than the mid-1770s, and if newer texts had enjoyed no more than twenty-eight years of protection.

With heightened competition over the old books, the most well-established members of the London trade could no longer have relied on a permanently insulated backlist to support their new ventures. Enterprises such as Johnson’s Dictionary might have proved impossible to finance. At the same time, with less capital locked up in the copies and the printing of older texts, a larger part of the overall trade might have been devoted to new books. If authors had been able to avail themselves of the statute’s fourteen-year renewal provision, there would also have been heightened competition for new books: the author would be free to seek better terms (and perhaps another publisher) for a title that had done well during its first run. If the author took the copy to a new bookseller, it would be in the latter’s interest to ensure that no further editions appeared under the original imprint. Renegotiating book contracts would have become part of the routine of a successful literary career, thus adding a new dimension to the image of the professional author.

Indeed, the unsuccessful legislative proposals of the 1730s would have strengthened both authors’ and readers’ rights in a fashion that followed the logic of the 1710 statute. In the mid-1730s, the booksellers, growing uneasy about the ambiguous legal status of their copies, lobbied Parliament for a term extension. A proposal in 1735 seems to have failed for political reasons, but it is significant that Parliament used the opportunity to add another reader-oriented provision to the statutory edifice, thus ensuring ongoing access to older books that “become scarce and out of Print.” If the copy-owner should “neglect or refuse to reprint and publish” the text, then various officials might summon the owner and demand that the book be reprinted. If the demand were refused, the person who brought the issue to the officials’ attention could be “authorize[d] and impower[ed]” to the print book and to “make such Satisfaction and Recompence as they shall think fit, to the Author [or] Proprietor … for the Liberty of Printing the same.”⁴³ The system of compulsory licensing contemplated by this provision reflects the view that, in exchange for the legal protection afforded by the statute, the owner had an obligation to make the text permanently available. The idea that others were entitled to take over out-of-print texts to ensure their continued availability recalls the already well-established use of “working clauses” in patents, which terminated the rights of patent owners who failed to “work the patent”—that is, to sacrifice their exclusive license if they did not actively exploit it.⁴⁴ Patent historians have observed that the working requirement clarifies the terms of the patent bargain by highlighting the tradeoff between the licensee’s exclusive control and the public’s entitlement to the use of the goods or processes that the license protects. At a time when copyrights and patents were not yet seen as associated under the rubric “intellectual property rights,” this provision would have pointed up their kinship—and would also have undermined the booksellers’ argument that copies should be analogized to chattels because the various restrictions on patent rights (including their limited duration) meant that they only ambiguously fit into the category of property.⁴⁵ Indeed, the requirement of “working the copyright” seems to have emerged even in the absence of a statutory provision. William St. Clair notes that “[i]f, as happened in the eighteenth century with Milton’s prose works, a text had been so long out of print that no publisher could easily establish an ownership claim, a new property right could be established in a newly printed text.”⁴⁶ For example, this convention appears to explain how Robert Dodsley was able to publish A Select Collection of Old Plays (12 vols., 1745–46), which he said had been chosen to “snatch some of the best pieces of our old Dramatic Writers from total Neglect and Oblivion.”⁴⁷

If the 1735 legislation would have added to the protection of readers’ rights, the 1737 legislation would have given new prominence to the reversion scheme that the booksellers sought to disregard. The proposed bill would have allowed authors to renew the copyright every ten years until their death, but it also included a clause providing that authors could not “sell, alienate, assign or transfer … the Right … to the original Copy of any Book … for any longer Time than Ten Years.”⁴⁸ The cost of this extended protection, from the booksellers’ perspective, would thus have been increased market competition because authors would be equipped to seek a better bargain for a book that had sold well, and the person who acquired the copy for the next ten-year term would have reason—at least initially—to sell the new edition for less than the old one, which in turn might have to be remaindered. The ultimate effect of this provision, too, would be to enhance readers’ position in a more competitive marketplace. Doubtless, this was the very reason for the booksellers’ lack of enthusiasm for the legislation once its purport became fully evident.

As Ronan Deazley has shown, the booksellers’ decision to give up on legislative cures and to content themselves with the courts, came about as the result of a series of Chancery decisions that suggested an alternative solution: the courts of equity could provide sufficient relief, by way of an injunction, without requiring proof of a common-law right to support the request.⁴⁹ As a result, the movement toward a more firmly established public domain, especially one grounded in a limited-term copyright, was delayed until the limits were affirmed at the end of the litigation in Donaldson v. Beckett (1774).⁵⁰ The equitable procedure that helped to bring about this result involved a hypothetical mode of argumentation that might be regarded as a legal counterpart to the imaginative demands of contemporaneous fiction.

To make sense of the booksellers’ litigation strategies, it is useful to distinguish between the legal and equitable remedies available at this time. Money damages could be awarded by a court of law (in this case, usually King’s Bench), whereas injunctive relief was available in equity (from Chancery). Thus, to claim the statutory damages of one penny per sheet, provided in the Act of Anne, a plaintiff would have to file an action at law alleging violation of the statute, with the hope that enough pirated material would be found in the defendant’s possession to justify this course of action. The process could be slow and cumbersome and was unlikely to yield much by way of damages. From the copy-owner’s perspective, it was preferable to get an injunction forbidding the defendant to print or dispose of any more copies of the piracy. Courts of equity would grant an ex parte injunction that would remain in effect until the defendant appeared to answer the plaintiff’s charges. If the charges proved valid after both sides had been heard, the court could grant a permanent injunction. However, a preliminary injunction was usually sufficient for the plaintiff’s needs, and the dispute rarely proceeded any further.⁵¹ This approach proved especially attractive to the booksellers once they saw that the Chancery court would not ask whether the statutory term of protection had expired. The equity courts were willing to entertain the hypothetical premise that the plaintiff had a valid claim and to proceed from there. Thus, by avoiding the common-law courts, the booksellers kept alive their claims about common-law copyright for more than six decades using a form of pleading that required them to presuppose the existence, at common law, of the very right whose dubious status had led them to Chancery in the first place.

The Donaldson decision is often—and rightly—seen as marking an important milestone in the history of public domain. As this account has suggested, however, numerous other episodes along the way show that the duration of copyright was not the only consideration in play (even if it was the most prominent one), and, in the course of the eighteenth century, various questions about public access to texts slowly began to coalesce so as to support a conception of the public domain as a coherent field, rather than as a medley of copyright’s remainders. One of the most striking features of this process involves the opposition to the growth of the public domain—an effort fueled by a kind of creative energy that was, in its way, as imaginative and productive as the energy it sought to contain.