The Ghost of Millar v Taylor walks abroad once more, relishing the prospect of ‘the next great copyright act’ and tempting us to ask again 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 this right antedates any positive enactments made on its behalf, and the earliest copyright statutes simply secured or augmented rights already in existence. This theory has served as the basis of an increasing tendency toward the retrospective creation of property in nearly any ‘subject matter’ — as 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.
There can be no question that Millar‘s Ghost, if it ever departed, has returned. Three cases recently or currently before the Supreme Court — Star Athletica v Varsity Brands, Lee v Tam, and Apple v Samsung — involve the influence of the common law view in a variety of ways. In a more general sense, the public domain is embattled. Finally, there is widespread intrusion into longstanding cultural practices and traditional rights, in the quest for corporate ownership. Most amusingly, or alarmingly, manufacturers (including Apple) are mounting an assault on the right of consumers to repair their own devices. All of these issues reflect a desire to reshape culture in accord with the norms of copyright law, and to create rights of property where before there were none.
This property is justified by the recursive insertion of an author or creator whose original right provides the ostensible basis of current title. In American law this approach has rested on three propositions: That authors in England always had a right to prevent unauthorized publication of their writings, that Americans carried this right with them from England to their new colonies in the seventeenth and eighteenth centuries, and that as between the two landmark decisions in English copyright law, Millar v Taylor and Donaldson v Beckett, Americans chose the view taken in Millar that copyright was a perpetual right originating in the common law. This final claim is bolstered by the belief that Americans knew the result in Millar but not in Donaldson, and that when they began to pass their own copyright statutes they were passing the familiar common law result into law. This article focuses on these claims, arguing that there was no common law copyright before the passage of the Statute of Anne, and no norm prohibiting unauthorized publication. It would be closer to the mark to say that unauthorized publication was the norm, and that our timeless right of first publication is actually a much more modern creature than we have imagined. Americans had no common law inheritance to carry with them to the colonies, and they actually did know the result in Donaldson shortly after it was decided, leaving no reason to believe that American copyright law followed the Millar decision. The article concludes with a consideration of the modern implications of the success of the myth of common law copyright. These include a distortion of culture to make it fit the contours of copyright law, the increased dedication of the law to the protection of a species of property that knows no bounds, and the imposition what I term the ‘copyright servitude’, which protects the interests of copyright holders by limiting the uses that can be made even of lawfully-purchased products, and by impeding the development of alternative means of transmission of information.
O’Melinn, Liam, The Ghost of Millar v. Taylor: The Mythical Origins of Copyright (February 24, 2017).