Copyright in Periodicals during the Nineteenth Century: Balancing the Rights of Contributors and Publishers

The nineteenth century, as readers of the Victorian Periodicals Review will be well aware, was a time of huge expansion in the publication of reviews, magazines and other periodical works.Less well known, however, is the fact that, during the same period, UK copyright law developed special rules regulating the authorship and ownership of copyright in these genres, balancing the rights of contributors against those of the work's overall "proprietor, projector, publisher or conductor." 1 These rules, enacted by section 18 of the Copyright Act 1842, but which had some precedent in early nineteenth century judicial authority, were also subsequently debated in the latter half of the nineteenth century.To date, these legal developments have received scant attention in the existing literature: specialists of periodicals have largely ignored copyright issues and scholars of nineteenth century literary copyright have focussed on copyright in books in tracing copyright's expanding duration, scope and subject matter as well as international developments 2 The history of copyright for periodicals in the nineteenth century invites detailed archival work interrogating a number of questions which cannot be addressed by this short article: the relation between the law and publishing practice, the dynamics of author-publisher relations, and the economics of publishing.This essay instead uncovers the views of periodical works revealed in the legislative consideration of section 18 (from a review of nineteenth century parliamentary papers, including Select Committee reports, and parliamentary debates) in addition to key nineteenth century cases.In a bid to instigate discussion between law and the humanities, I draw attention to the manner in which copyright rules intersected with particular views of the social importance of certain genres, and the different ways in which they each were understood to contribute to the dissemination of knowledge. Introducing Section 18 Copyright Act 1842What were the rules contained in section 18, and what ideas underpinned their enactment?The Copyright Act 1842 (which repealed the first copyright Act -the Statute of Anne 1710) was a major development in the legislative reform of literary copyright in the nineteenth century.3 As Catherine Seville has shown, the 1842 Act was the product of "many complex and conflicting forces" and "there was no single goal for copyright reform".4 Enacted at a time of radical social and economic change, which had implications for the book trade and the status of authorship, Seville concludes that the 1842 Act neither reflected the primacy of the claims of authors, nor a coherent "substitute rationale," such as the view that copyright was a "rightful return on investment" or an "economic incentive."5 Rather, all these strands formed part of the backcloth against which the 1842 Act was made.The 1842 Act protected copyright in "books," defined in a broad manner.6 However, section 18 contained special rules applying to the following genres: encyclopaedias, reviews, magazines, periodical works, or works published in a series of parts.7 Section 18, which legislators of the late nineteenth century would repeatedly criticise for being "expressed in language so obscure as to be almost unintelligible," contained two elements.8 First, section 18 set out a general rule: "property" in all these genres -encyclopaedias, reviews, magazines, periodical works, or works published in a series of parts -would vest in the work's overall "proprietor, projector, publisher or conductor" (hereafter, for brevity, "the publisher"), where certain conditions were met (explained below).Secondly, section 18 contained a complex proviso which applied to reviews, magazines or "other periodical works of a like nature" only (and not encyclopaedias).The proviso concerned the right of publishing in separate form, contributions (namely "essays, articles or portions") first published in periodicals: in the 28-year period following first publication, the publisher could only exercise the right of publishing the contribution in separate form with the contributor's consent.After the expiry of 28 years from first publication, the right to publication in separate form would revert to the contributor for the remainder of the copyright term.The proviso did not prevent a contributor from reserving the right to separate publication by contract.These two aspects to section 18 -the general rule and the proviso -are now considered in turn. The General Rule in Section 18The first part of section 18 stated that copyright in a work (or "any volume, part, essay, article or portion" of a work) published in an encyclopaedia, review, magazine, periodical work, or a work published in a series of parts would "be the property" of the publisher, where the following conditions were met: the contributor was employed and paid to compose such a work, on terms that copyright would "belong" to the publisher.9 It is useful to note here that, as Simon Deakin and Frank Wilkinson have shown, the term 'employment' was differently understood in the mid nineteenth century: it denoted any wage-dependent labour of clerical managerial or professional status and was distinct from the notion of 'servant' regulated by 'master' and 'servant' legislation.10 How can the general rule in section 18 be explained?The legislative debate of this provision was premised on the assumption that contributors to all these genres were generally well remunerated.As the House of Commons heard in the debates on the Copyright Bill in 1838 (a forerunner to the Bill that became the 1842 Act), many authors "received more for ephemeral works... which had appeared in the reviews and other periodicals" than for their "enduring publications" in the form of books.11 Similarly, the copyright debates concerning encyclopaedias were all based on the assumption that the contributors were well paid.A statement issued by the publisher Longman & Co in 1838 (published in The Times) asserted that contributors to encyclopaedias were "paid...large sums," as did the address of Lord Brougham to the House of Lords in debating the Copyright Bill in May 1842 which referred to "large amounts" paid to such contributors.12 In fact, historians of authorship and publishing have shown that the rates of pay, at least as regards periodicals, could vary enormously, even as regards the payments made by the same periodical to different authors; while some could earn the "income of a gentleman" from periodical writing, this was far from the case across the board, and "less versatile or fortunate writers did not fare so well."13 This broader picture, however, did not inform the legislative debates.Therefore, as Lord Brougham expressed in the debates in the House of Commons in 1842, the thinking behind the first part of section 18 was that as "the author sent in his paper and received payment for it and so... right of property must... undoubtedly become invested in the publisher."14 This rationale, in turn, was reflected in judicial decisions interpreting the main clause of section 18. Accordingly, the courts interpreted the requirement of payment to the contributor in a strict manner.15 In Brown v. Cooke (1846), the Court of Chancery held that it was insufficient for the

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