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Common law copyright is the legal doctrine that grants copyright protection based on
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
of various jurisdictions, rather than through protection of
statutory law A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wi ...
. In part, it is based on the contention that
copyright A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...
is a natural right, so creators are entitled to the same protections anyone would have in regard to tangible and real property. The "natural right" aspect of the doctrine was addressed by the courts in the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
('' Donaldson v. Beckett'', 1774) and the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
('' Wheaton v. Peters'', 1834). In both countries, the courts found that copyright is a limited right under statutes and subject to the conditions and terms the legislature sees fit to impose. The decision in the UK did not, however, directly rule on whether copyright was a common-law right. In the United States, common law copyright also refers to state-level copyrights. These are ordinarily preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For instance, in the New York State 2005 case, ''
Capitol Records v. Naxos of America ''Capitol Records, Inc. v. Naxos of America, Inc.'', 4 N.Y.3d 540 (2005), is one of "the most notable case concerning the copyright status of US-published sound recordings issued before February 15, 1972 (frequently called "pre-1972 sound rec ...
'', the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common law copyrights,''Capitol Records v. Naxos of America''
2005 NY Slip Of 02570 (NY Ct App April 5, 2005)
a ruling that was clarified and limited with 2016's ''Flo & Eddie v. Sirius XM Radio''.


Battle of the booksellers (UK)

Until the enactment of the
Statute of Anne The Statute of Anne, also known as the Copyright Act 1709 or the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for ...
publishers could pass on their royal grants of copyright to their heirs in perpetuity. The Battle of the Booksellers took place between the 1740s to 1770s through the United Kingdom. The dispute was over
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
. When '' Donaldson v Beckett'' reached the
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
in 1774, Lord Camden, said "all our learning will be locked up in the hands of the Tonsons and the Lintots of the age". He declared that "as odious and as selfish as any other, it deserves as much reprobation, and will become as intolerable. Knowledge and science are not things to be bound in such cobweb chains." The support was from Thomas Lyttelton. The House of Lords ultimately ruled that copyright in published works was subject to the durational limits of the statute. The reasoning behind the decision is disputed, though most scholars agree that the House did not rule against common-law copyright. The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it" (Lord Chief Justice De Grey), but that prior to the Statute of Anne the right to copy was "founded on patents, privileges,
Star Chamber The court of Star Chamber () was an English court that sat at the royal Palace of Westminster, from the late to the mid-17th century (), and was composed of privy counsellors and common-law judges, to supplement the judicial activities of the ...
Decrees and the bylaws of the Stationers' Company" (Lord Camden). In any event, they determined, the Statute of Anne superseded any common law rights of the author which may have existed prior to the statute. The previous entry here maintained that the Lords found that "parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good," quoting Ronan. However, the use of the phrase "natural rights" is not justified by the historical record. Lord Chief Baron Smythe stated that the Statute of Anne was "a compromise between authors and printers contending for a perpetuity, and those who denied them any statute right," but the Lords in no way accepted that such a common law or 'natural' right of the author in perpetuity ever existed or developed. Lord Chief Justice De Grey saw no evidence of any such right in the courts in the 300 years since the invention of the printing press and charged that "the idea of a common-law right f the authorin perpetuity was not taken up till after that failure in procuring a new statute for an enlargement of the term."


State law copyright claims

''Common law copyright'' is also the term used in the United States to refer to most state law copyright claims. In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102 (Subject matter of copyright: In general) or Section 103 (Subject matter of copyright: Compilations and derivative works) except for sound recordings fixed before February 15, 1972. This leaves a sizable amount of work that still falls under a mixture of state statutes and common law copyright. Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For instance, in the New York State 2005 case, ''
Capitol Records v. Naxos of America ''Capitol Records, Inc. v. Naxos of America, Inc.'', 4 N.Y.3d 540 (2005), is one of "the most notable case concerning the copyright status of US-published sound recordings issued before February 15, 1972 (frequently called "pre-1972 sound rec ...
'', the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common law copyrights. This precedent was partially overruled in 2016 in '' Flo & Eddie, Inc. v. Sirius XM Radio'', which determined that the extent of common law copyright in New York did not cover the performance of a sound recording. Major changes to the federal laws of copyright for pre-1972 sound recordings were made in the 2018 enactment of the Music Modernization Act, including the CLASSICS Act. Such works are now covered by federal copyright law. Federal preemption over the state common law (and conflicting state statutes) implies that federal copyright for those works will now have definite scope and duration, as specified in the federal statutes. Potentially non-preempted common law rights may remain to be identified and addressed as further rulings unfold under the new statute.


See also

* Copyright Act of 1909 *'' Gyles v Wilcox'' * Berne Convention


References

{{DEFAULTSORT:Common Law Copyright Copyright law Common law