Gyles v Wilcox
Encyclopedia
Gyles v Wilcox 26 ER 489 was a decision of the Court of Chancery
of England that established the doctrine of fair abridgement, which would later evolve into the concept of fair use
. The case was heard and the opinion written by Philip Yorke, 1st Earl of Hardwicke
, and concerned Fletcher Gyles, a bookseller who had published a copy of Matthew Hale's Pleas of the Crown. Soon after the initial publication, the publishers Wilcox and Nutt hired a writer named Barrow to abridge the book, and repackaged it as Modern Crown Law. Gyles sued for a stay on the book's publishing, claiming his rights under the Statute of Anne
had been infringed.
The main issues in the case were whether or not abridgements of a work were inherently pirated copies, or whether they could qualify as a separate, new work. Lord Hartwicke ruled that abridgements fell under two categories: "true abridgements" and "coloured shortenings". True abridgements presented a true effort on the part of the editor, and by this effort, constituted a new work which did not infringe upon the copyright
of the original. Leaving it to literary and legal experts to decide, Hartwicke ruled that Modern Crown Law was not a true abridgement, but merely a piracy intending to circumvent the law.
The case set a legal precedent which has shaped copyright law up until the present day. It established the common law
doctrine of fair abridgement, which was cited in other cases, ultimately building up to the idea of fair use. The opinion also recognised the author's right to a work through the nature of the labour it took to produce it, shifting copyright away from publishing rights and towards the idea of serving the greater good by encouraging the production of new, useful works.
bookseller, had previously published a book entitled Matthew Hale's Pleas of the Crown, for which he had purchased the exclusive publishing rights. Around the same time, publishers Wilcox and Nutt paid a writer named Barrow to abridge the book, circulating it under the title Modern Crown Law. Gyles alleged that Modern Crown Law was a near verbatim
copy of his publication, with only minor alterations, including the translation of Latin and French
passages into English
and cutting old, obsolete laws. Seeking to protect his printing rights, Gyles sued both Wilcox and Nutt, along with Barrow, for a stay on the publication.
, particularly the section stating that an author, or purchaser of an author's copyrights as Gyles was, "shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of four-teen years." Philip Yorke, 1st Earl of Hardwicke
presided over and decided the case.
Browning, Gyles' attorney, cited a case which had also appeared before Hardwicke, that of Read v Hodges. In that case, a publisher attempted to circumvent the rights of the author of Czar Peter the Great by including all three volumes in one and cutting several pages. Hardwicke rejected the argument, however, declaring that the former case had been decided merely on a motion
, and that he had given his decision and statements without the thought he would have given a normal hearing. Hardwicke further took contention with the Attorney General for England and Wales
' assertion that the Statute of Anne provided a publishing monopoly, instead interpreting the act as one meant to promote public education and the public good.
As Hardwicke had decided to interpret the Statute of Anne as for the public good, the main question of the case became which "any such book or books" the act referred to and protected. The defendants argued that his abridgement must be considered separate from the original work published by Gyles. The defendant's lawyers furthered pushed the court to try the case as if the abridgment had been recorded in the Stationers' Register
, an action that would have given Wilcox and Nutt the right to publish their book, and the lawsuit brought against a second, unique book. Therefore, the only question before the court was whether the second book differentiated sufficiently from the first. Further, the attorneys for the defendants argued that the book was not a direct transcription, but that several chapters had been omitted, while other, original sections had been added to the Wilcox and Nutt publication. They further pointed to the fact that the Gyles' publication consisted of 275 sheets, whereas the abridgement contained only 35 sheets.
The opinion, written by Hardwicke, found that a true abridgement
of a published book may be considered an entirely separate, new work, as the abridgement showed the labour, originality, education, and judgement of the editor. This new book did not run the risk of infringing the rights
of the author or bookseller who owned the publishing rights. However, Lord Hardwicke drew a distinction between works "fairly made" and those "colourably shortened". Hardwicke refused to compare the books himself to determine whether Modern Crown Law was indeed a fair abridgement, or to force a judge and jury to sit and hear both books read, instead opting to have two legal experts and a literary master read the books and report the findings to the court. The parties were allowed to choose these examiners, in a way leaving the case to arbitration. After a week in which the parties were given a chance to make amends outside of court, the book in question was ruled a colourable shortening, created only to circumvent the law, and thus was an infringement of Gyles' printing rights.
In his decision, Hartwicke went counter to the prevailing view that the Statute of Anne should be interpreted very strictly, proclaiming, "I am quite of a different opinion, and that it ought to receive a liberal construction, for it is far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompence for their pains and labour in such works as may be of use to the learned world."
. This concept of fair abridgement eventually evolved through common law
, initiated from Gyles v Wilcox, into the current concept of fair use. Hardwicke's decision also added the exercise of personal judgement to the list of admissible defences against the charge of copyright infringement, adding to the growing case law
establishing that British copyright would be based on labour and not on originality. The opinion advanced the position that copyright law should serve the public interest by promoting the creation of new educational and useful works, rather than focusing on publishing rights. The case played a significant role in the development of English copyright law. The United States federal courts
have cited the case as recently as the 1980s.
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
of England that established the doctrine of fair abridgement, which would later evolve into the concept of fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
. The case was heard and the opinion written by Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
, and concerned Fletcher Gyles, a bookseller who had published a copy of Matthew Hale's Pleas of the Crown. Soon after the initial publication, the publishers Wilcox and Nutt hired a writer named Barrow to abridge the book, and repackaged it as Modern Crown Law. Gyles sued for a stay on the book's publishing, claiming his rights under the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
had been infringed.
The main issues in the case were whether or not abridgements of a work were inherently pirated copies, or whether they could qualify as a separate, new work. Lord Hartwicke ruled that abridgements fell under two categories: "true abridgements" and "coloured shortenings". True abridgements presented a true effort on the part of the editor, and by this effort, constituted a new work which did not infringe upon the copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
of the original. Leaving it to literary and legal experts to decide, Hartwicke ruled that Modern Crown Law was not a true abridgement, but merely a piracy intending to circumvent the law.
The case set a legal precedent which has shaped copyright law up until the present day. It established the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine of fair abridgement, which was cited in other cases, ultimately building up to the idea of fair use. The opinion also recognised the author's right to a work through the nature of the labour it took to produce it, shifting copyright away from publishing rights and towards the idea of serving the greater good by encouraging the production of new, useful works.
Facts
Fletcher Gyles, an EnglishEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
bookseller, had previously published a book entitled Matthew Hale's Pleas of the Crown, for which he had purchased the exclusive publishing rights. Around the same time, publishers Wilcox and Nutt paid a writer named Barrow to abridge the book, circulating it under the title Modern Crown Law. Gyles alleged that Modern Crown Law was a near verbatim
Verbatim
Verbatim may refer to:*Verbatim Latin - the term "Verbatim" means, in a UK legal context: "word by word, exactly"*Verbatim Corporation, a US company that markets storage media and flash memory*Verbatim , a magazine edited by Erin McKean...
copy of his publication, with only minor alterations, including the translation of Latin and French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
passages into English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
and cutting old, obsolete laws. Seeking to protect his printing rights, Gyles sued both Wilcox and Nutt, along with Barrow, for a stay on the publication.
Arguments
The case involved whether Wilcox, Barrow, and Nutt had violated Gyles' publishing rights as defined under the Statute of AnneStatute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
, particularly the section stating that an author, or purchaser of an author's copyrights as Gyles was, "shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of four-teen years." Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke
Philip Yorke, 1st Earl of Hardwicke PC was an English lawyer and politician who served as Lord Chancellor. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1756 and 1757 until 1762....
presided over and decided the case.
Browning, Gyles' attorney, cited a case which had also appeared before Hardwicke, that of Read v Hodges. In that case, a publisher attempted to circumvent the rights of the author of Czar Peter the Great by including all three volumes in one and cutting several pages. Hardwicke rejected the argument, however, declaring that the former case had been decided merely on a motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
, and that he had given his decision and statements without the thought he would have given a normal hearing. Hardwicke further took contention with the Attorney General for England and Wales
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
' assertion that the Statute of Anne provided a publishing monopoly, instead interpreting the act as one meant to promote public education and the public good.
As Hardwicke had decided to interpret the Statute of Anne as for the public good, the main question of the case became which "any such book or books" the act referred to and protected. The defendants argued that his abridgement must be considered separate from the original work published by Gyles. The defendant's lawyers furthered pushed the court to try the case as if the abridgment had been recorded in the Stationers' Register
Stationers' Register
The Stationers' Register was a record book maintained by the Stationers' Company of London. The company is a trade guild given a royal charter in 1557 to regulate the various professions associated with the publishing industry, including printers, bookbinders, booksellers, and publishers in England...
, an action that would have given Wilcox and Nutt the right to publish their book, and the lawsuit brought against a second, unique book. Therefore, the only question before the court was whether the second book differentiated sufficiently from the first. Further, the attorneys for the defendants argued that the book was not a direct transcription, but that several chapters had been omitted, while other, original sections had been added to the Wilcox and Nutt publication. They further pointed to the fact that the Gyles' publication consisted of 275 sheets, whereas the abridgement contained only 35 sheets.
Judgment
Abridgement
Abridgement or abridgment is a term defined as "shortening" or "condensing" and is most commonly used in reference to the act of reducing a written work, typically a book, into a shorter form...
of a published book may be considered an entirely separate, new work, as the abridgement showed the labour, originality, education, and judgement of the editor. This new book did not run the risk of infringing the rights
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
of the author or bookseller who owned the publishing rights. However, Lord Hardwicke drew a distinction between works "fairly made" and those "colourably shortened". Hardwicke refused to compare the books himself to determine whether Modern Crown Law was indeed a fair abridgement, or to force a judge and jury to sit and hear both books read, instead opting to have two legal experts and a literary master read the books and report the findings to the court. The parties were allowed to choose these examiners, in a way leaving the case to arbitration. After a week in which the parties were given a chance to make amends outside of court, the book in question was ruled a colourable shortening, created only to circumvent the law, and thus was an infringement of Gyles' printing rights.
In his decision, Hartwicke went counter to the prevailing view that the Statute of Anne should be interpreted very strictly, proclaiming, "I am quite of a different opinion, and that it ought to receive a liberal construction, for it is far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompence for their pains and labour in such works as may be of use to the learned world."
Consequences
The case established the doctrine of fair abridgement, which allowed that abridgements displaying a fair amount of labour on the part of the editor, and that differed from the original published work in a significant way, could not be piracy. This in effect raised the abridger to the level of an author. The decision did not define the exact parameters that would qualify a work as a valid abridgement. This distinction came with a later case involving an abridgement of Hawksworth's Voyages, in a decision written by Lord Chancellor ApsleyHenry Bathurst, 2nd Earl Bathurst
Henry Bathurst, 2nd Earl Bathurst PC, KC , known as the Lord Apsley from 1771 to 1775, was a British lawyer and politician. He was Lord Chancellor of Great Britain from 1771 to 1778.-Background and education:...
. This concept of fair abridgement eventually evolved through common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, initiated from Gyles v Wilcox, into the current concept of fair use. Hardwicke's decision also added the exercise of personal judgement to the list of admissible defences against the charge of copyright infringement, adding to the growing case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
establishing that British copyright would be based on labour and not on originality. The opinion advanced the position that copyright law should serve the public interest by promoting the creation of new educational and useful works, rather than focusing on publishing rights. The case played a significant role in the development of English copyright law. The United States federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
have cited the case as recently as the 1980s.