The anatomy of copyright law in Scotland before 1710

Abstract

First paragraph: In 1707, when Scotland joined with England in parliamentary union, a partnership was joined both political and economic. Setting aside a few temporary taxation exemptions for Scotland, economic union with England meant a shared currency, common weights and measures and standardised customs and duties, but more significantly, as confirmed in article IV of the Treaty of Union, ‘full freedom and intercourse of trade’. Scotland had helped create the largest free trade area in western Christendom. While one of the temporary exemptions agreed for Scotland was from English duties on stamped paper, a brief advantage for the book trade in the north, the regulation of that trade and of copyright was unmentioned; by omission, the status quo ante would prevail. Given the depredations of Anglo-Scottish copyright litigation from Tonson v. Walker in 1739 to the more ‘infamous’ Donaldson v. Becket in 1774 perhaps it is as well that such a topic was set aside. Such controversy might have delayed a vital treaty that for many secured religion and security. The Statute of Anne of 1710 was intended, of course, to fill the regulatory void, yet by then that void had become a vacuum with the demise of the Scottish Privy Council in 1708, as well as pressure from an English book trade smarting at the opportunism of Scottish books entering the English market. In fact the Scottish Privy Council had enormous significance for the history of copyright in early modern Scotland. Although secured in the Treaty of Union it became the victim of administrative impotence during the brief Jacobite invasion scare of 1708, and also was the target of opposition Scottish politicians who wished to deliver a lethal blow to the patronage network of those in power. Thereafter Scottish copyright traditions were unleashed on perplexed English lawyers and their courts, though ultimately to the benefit of book commerce broadly and of authors who saw the recognition of their rights over those of book trade copyright holders.