The nature of copyright

Introduction

According to the Oxford English Dictionary, copyright is ‘the exclusive right given by law for a certain term of years to an author … to print, publish or sell copies of his work’. Clearly, it is not merely the right to copy. Rather, the word ‘copyright’ derives from another meaning of copy, as in an advertiser's or journalist's ‘copy’, his or her material for the printer. The printers and the Stationers’ Company in the 17th century, the Statute of Anne in 1710 (see 1.2.1), the Copyright Act 1775 (see 2.2.33) and (until the mid-18th century) the courts all used the word copy to mean both the copy itself and the right in the copy, but by the time Alexander Pope brought an action in 1741 to assert his rights in his letters it seems to have become normal to treat the copy and the right as being distinct. So, as Dr Johnson put it in his Dictionary (1755), a ‘copy’ is ‘the autograph; the original; the archetype; that from which any thing is copied’, and ‘copyright’ is the right in the ‘copy’, the author's original creation.

The right to enjoy copyright protection is now regarded internationally as arising from natural justice, in accordance with the Universal Declaration of Human Rights of 1948, which states that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. Copyright also exists in order to benefit society generally, by providing an incentive for creativity as an encouragement for learning and the arts. It originated, though, with the much more immediately practical purpose of giving printing monopolies to protect the investments of printers. Then, in statutory form it replaced individual monopolies with a regime designed to outlaw the piracy of publications. In the UK, therefore, it has always been regarded as primarily an economic property right: the right of the owner to benefit from the fruits of his or her skill, judgement and labour. This is the ‘common law’ approach exported from the UK to Ireland, the Commonwealth and the USA, as distinct from the ‘civil law’, ‘author's right’ approach of most other European countries, which emphasises the protection of the author's personality as expressed in his or her work.