Private Law Theory

Abstract
The Ghost of Common Law Copyright walks abroad once more, relishing the prospect of ‘the next great copyright act’ and tempting us to inquire anew whether the origins of copyright are to be found in the common law. Despite being answered time and again in the negative, this question preys upon modern sensibilities predisposed to the view that artists who painted on the walls of ancient caves had a primordial right to prevent ‘pirates’ from copying their works. The belief that the common law has always provided creators with a right against unauthorized reproduction is quietly but increasingly influential, and it has helped to propel copyright law toward limitless expansion. According to the common-law view, most famously expressed in Millar v Taylor in England in 1769, this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. Millar was overruled in Donaldson v Becket in 1774, but its spirit has lingered on, haunting the legal landscape of copyright. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any ‘subject matter’ – as this copyright theory describes cultural exchange – that is perceived to be of potential value. The common law view has made its influence felt in a distension of culture, a distortion of the law, and a tendency to create a boundless form of property. This property without bounds, in turn, is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title …

O’Melinn, Liam, The Ghost of Millar v Taylor: The Mythical Common Law Origins of Copyright and the Copyright Servitude (March 11, 2018).

First posted 2018-03-17 07:26:39