[Via H-Law, we have the following report of another prize awarded at the recently concluded annual meeting of the ASLH.]
This year’s Sutherland Prize is awarded to a scholar whose prodigious research sheds new light on an important controversy in the history of copyright law. The author carefully examines dozens of newspaper accounts as well as official and unofficial reports relating to the House of Lords proceedings in Donaldson v Becket (1774). His task was complicated by the fact that the House of Lords at that time forbade notetaking and published only very brief summaries of its decisions. Nevertheless, through exhaustive research, careful attention to the procedures and practices of the House of Lords, and patient inquiry into contemporary conventions relating to the interpretation of House of Lords decisions, the author elucidates the relationship between Donaldson v Becket and common law copyright. The conventional understanding of the case is that it endorsed the existence of common law copyright, either directly or in combination with Millar v Taylor (KB 1769), while a revisionist account interprets the case as denying the existence of common law copyright. This year’s prize-winning article is admirably sensitive to the limits of the evidence and eschews certainty where certainty is impossible. While counsel, judges, law Lords, and lay Lords made arguments for and against the existence of common law copyright, the House of Lords decision in Donaldson v Becket did not definitely resolve the controversy one way or another. Nevertheless, the author argues that most late eighteenth-century English judges viewed copyright as having a pre-statutory basis in the common law. While common law copyright was given statutory form in 1710, most judges thought authors’ rights predated the statute and recognized the possibility that some common law rights might remain valid and important even after the passage of the statute. More broadly, the article contributes to our understanding of the House of Lords as a judicial body in the late eighteenth century and thus to the proper interpretation of decisions from that formative period. In doing so, it highlights the need for historians of substantive law to master the procedure used during the periods they study. For these insights, the committee awards the 2015 Sutherland Prize to H. Tomás Gómez-Arostegui for his article, “Copyright at Common Law in 1774,” 47 Connecticut Law Review, 1-57 (2014).
