Dramatic Copyright

• Common Law
• Laying the Foundations
• Establishment of Copyright
• Sealing the Loopholes
• Into the Edwardian Era
• International Complications
• Copyright Law Comes of Age
• Major Provisions of the 1911 Copyright Act
• To the Present

Common Law

Medieval law in England knew no concept of copyright, and made no allowance at all for the protection of intellectual rights. Common law then rested upon the underlying principle that a man be allowed the liberty to enjoy his properties undisturbed. This in effect protected any physical manuscript on which a literary work might have been written and gave redress in the event of that manuscript being stolen, but it did not separately protect the work itself.

For many years this was, however, for literary works, protection enough. At a time when manuscripts could only be handwritten, few copies existed and could be jealously guarded. Stealing the work embodied on a manuscript by making further copies was a long and laborious process and not easily accomplished. Mass reproduction was out of the question. This all changed however, with the invention of the printing press. Printing made it possible to steal the embodiment of a literary work separately from the manuscript on which it was written. Since it is the work itself more so than the paper or parchment upon which the original is contained that is the thing of value, this necessitated the law to come to terms with the abstract and protect that which has no inherent physical embodiment of its own. Eventually this would lead to the whole panoply protections for literary and other intellectual rights that we are familiar with today. - (top)

Laying the Foundations

This would not happen overnight however, but as a series of gradual changes and improvements. The first laws to come into effect relating to the publication of literary works were concerned primarily with censorship rather than protecting the rights of the author. From 1556 it was necessary before publishing any book to obtain a licence from the Stationers Company, where details of the work would be recorded in a register. Although the purpose of this legistlation was to enforce state control over the contents of published works and not to establish or enforce ownership, it did however for the first time establish the concept of the work as an entity seperate from its physical embodiment. Establishing this important concept would pave the way for later legistlation that would protect the rights of the author. - (top)

Establishment of Copyright

By the late 17th century piracy of literary works was rife, common law rights had proven inadequate and authors, printers and publishers began to petition for effective laws to protect their rights against the publication of 'stolen' copies of their works. The result, in 1709, was the addition to the statute book of 8 Anne, c. 19., a bill which vested the rights for copies of printed books solely in their Authors (or publishers or other party to whom such rights had been transferred). Every new book still had to be registered with the Stationers Company, but now for the first time that registration could be made in the name of the author thus establishing legal ownership.

Under this new Act, authors or other persons owning the rights of existing books were given the exclusive right to print and publish those books for a period of twenty one years (from 10th April, 1710). New books were to be similarly protected for a period of fourteen years, renewable for a further fourteen years if the author were still alive at the end of that first period. Penalties for breach of these regulations were to be in the form of a fine and confiscation of any and all offending materials.

In 1810 the civil remedy of damages was added wherein the author could claim compensation for any losses suffered as a result of the breach, and in 1814 the period of protection was extended to the life of the author or twenty-eight years from initial publication, whichever was the longer. So by the beginning of the nineteenth century English Law had evolved to provide protection for a limited period of any literary work by preventing unauthorised persons from making copies of it. This protection was adequate for written works, but still made no allowance for dramatic performances where parts, once learned, could be performed without the necessity of making copies of the original script.

This shortfall was addressed in 1833 when the Dramatic Copyright Act was passed which endowed the author of any dramatic work the sole rights to any performance of that work for a similar period to that already established for the reproduction of written works. In 1842, the Literary Copyright Act combined the laws relating to the publication and/or performance or literary, dramatic and musical works under the umbrella of a single statute and again extended the period of protection to forty-two years or the life of the author plus seven years, whichever was longer. - (top)

Sealing the Loopholes

Whilst protection for stage plays and other dramatic works was now stronger than it had ever been there were still a number of flaws and loopholes by which it could be circumvented. The first Act of 1833 had required that an unauthorised dramatic performance be conducted in a 'place of dramatic entertainment', ie. a theatre, to be actionable under the law - performances in other places could be conducted with impunity. The 1842 Act made mention of no such such restriction but still it required a test case in 1848 to close this particular loophole. In Russell v Smith it was held that any building in which a dramatic entertainment was performed for profit became a place of dramatic entertainment for the purposes of the law and so was automatically actionable.

Another major loophole in the laws as they existed were that they provided protection only in like manner to the original. This meant that dramatizations of non-dramatic works (such as plays based on novels) could be undertaken without sanction, and in some cases where action was attempted were indeed found to be held up by the law. The original authors only redress was in the case of published scripts of such dramatisations and where passages which had been copied unchanged from the original. Generally however, an author's only defence against the dramatic exploitation of his non-dramatic works was to himself produce a dramatic version of them and in so doing assert his rights in that sense also. As this was the only sure way of protecting such rights this was the practice followed by many authors.

Yet another flaw was the widespread and generally uncontested belief that performance copyright was irretrievably lost if the manuscript was published before the play had been performed. Consequently, hurried 'performances' of new 'virgin' manuscripts, which amounted to little more than unrehearsed public readings, would be organised to establish this protection before their publication. - (top)

Into the Edwardian Era

In 1878 a Commission was set-up to investigate these and other shortcomings and found the laws then pertaining to copyright to be incomplete, obscure, disorganised and often ambiguous. In spite of this, nothing would be done to further strengthen or simplify the copyright laws for over thirty years, and so this was how things stood at the begining of the Edwardian period when English theatre reached the zenith of its popularity. - (top)

International Complications

By the beginning of the twentieth century, theatre audiences were not only booming in England but elsewhere around the world. Plays which packed in the audiences in London, had the potential to do so elsewhere, and this raised new problems since other countries laws in relation to copyright might substantially differ from those now established in Great Britain, and might not protect at all the rights of foreigners. This proved a particular problem in relation to the USA. When a production made a big success in England, crude unauthorised imitations would quickly start up across the Atlantic in the USA, often playing to packed houses and not paying a penny in royalties. International copyright laws were totally inadequate to prevent this and so it became necessary to fight the transatlantic pirates on their own ground, by taking the original productions to the USA and so show up the unauthorised productions for the cheap inferior imitations that they were. Gilbert and Sullivan's masterpiece "HMS Pinafore" was one such production. After its success in the London the entire company sailed secretly for New York where the authentic production took the city by storm. With their next production, "The Pirates of Penzance", they went a step further. Launching the production in the USA after only a single performance in England at Paignton to cement the English copyright, and heading off the US copyright 'pirates' before they had any opportunity to set up their imitation productions. - (top)

Copyright Law Comes of Age

In England, the next major step forward in copyright law was the Copyright Act of 1911, following a three year study by a committee into the trends of international law and opinion on the subject. This new act repaired the inadequacies of previous legistlation and gave effect to the recommendations of the Revised International Convention which had been signed in Berlin the previous year. Its provisions still form the basis of much copyright law in the current day. - (top)

Major Provisions of the 1911 Copyright Act

• Copyright: Defined as the sole right to produce or reproduce a work or any substantial part thereof in material form and/or to perform such work in public. Also specifically provided for:
  a) the right to convert a dramatic work into a novel or vice versa.
  b) the right to convert the work to cinematographic film or other mechanical contrivance and/or to perform or deliver it by such medium.
• Infringement: Defined as being the performance by any other person of any activity which is the conferred by the Act to be the sole right of the copyright owner without the copyright owners consent.
• Scope: Established Copyright throughout His Majesties dominions provided that:
  a) the work was first published within said dominions.
  b) the author was a British subject or resident within HM dominions.
• Ownership: The first owner of copyright was to be the author, but where such work was produced in the course of paid employment by some other person (and no agreement existed to the contrary) then that other person was to be the owner.
• Duration: The period of protection was extended to the lifetime of the owner plus fifty years. In the case of joint compositions the fifty years would run from the death of the author who died first (but in the event of any co-author still surviving at that time would automatically be extended until his/her death). Where a work was not published within the authors lifetime, copyright would persist for fifty years from the date of first publication or public performance. After the authors death, copyright would pass to his/her heirs.
• Special Powers: With reference to dramatic works, if after the death of the author the new copyright owner refuses to allow the work to be republished or performed so that it was withheld from the public the Judicial Committee of the Privy Council could order that such performance or publication be permitted on such terms as the Committee should see fit. - (top)

To the Present

The Act of 1911 has since been superceded by the Copyright, Designs and Patents Act 1988. Although this Act extends copyright law to take into account new methods of recording, publishing and reproducing copyright materials (eg. television and radio broadcasting, computer programs etc.), much of the basic tenets remain the same. As the scope of this new act is outside the timeframe with which this website is concerned no further discussion will be made here. For further information on the current act, please refer to the UK Copyright Service. - (top)