A Radical New Idea
Although copyright for published books dates back to the British Copyright Act of 1770,1 it only applied to items the technology of the time could copy in large numbers, principally the printing press. By the nineteenth century it was woefully out of date, particularly in relation to theatrical performances, which were based on an often unpublished script used to create a transient public event, not an object for private reading.
In the early nineteenth century, copyrighting play performances was a new idea. The tentative groundwork was established by the Dramatic Copyright Act (1833) of the British Parliament, supplemented by some provisions of its later Literary Copyright Act (1842) which applied to plays.2 Two distinct rights could be granted: copyright (to prevent unauthorised copies of a published work being made) and performing right (to prevent the unauthorised presentation of a story in acted form on the public stage). Only published books could be granted copyright protection, and similarly for a play the performing right began at the first public performance.
Act 1 script for Struck Oil, 1874
Australian Performing Arts Collection, Arts Centre Melbourne
Script for The Wool King by Wilton Welch, 1911
National Archives of Australia, Canberra
Judges, puzzling over this radical new idea, struggled with and were slow to allow anything more than the absolute minimum rights unambiguously conferred by the legislation, while many stage entrepreneurs simply ignored or actively resisted it. They regarding staging plays as their unencumbered right and were reluctant to pay royalties to the playwright—and particularly to pay a licence fee to a rival manager who claimed to have bought the ‘rights’ to a play and was now trying to prevent them from also performing it.
There were also practical difficulties for those trying to enforce the new laws, particularly in the provinces and distant colonies of the British Empire and in the US states west of the Ohio. Who knew what the travelling troupes were presenting? Enforcing performing rights outside the major cities only became possible as the means of communication improved.
From 1869 onwards the five mainland Australian colonies passed their own copyright acts based on the British laws, which were in turn replaced by a Commonwealth Copyright Act of 1905 (in force from 1 January 1907), but the 1833 Act remained the basis of legislation until the 1911 British Copyright Act, the adoption of which in Australia on 1 July 1912 marked the beginning of a fundamentally new approach to copyright law and is therefore the logical cut-off point for this account.3
Even after the first laws to prevent dramatic piracy were passed in Britain and its colonies, Australian playwrights (or managers who had purchased the script from them) found it difficult to protect their work or their investment. If registered in the colony where it was first performed, the play was protected only in that colony, whereas a script registered at Stationers’ Hall in London was protected throughout the Empire.
The situation in the USA was even more difficult, since the US refused for a full century to agree to the 1886 Berne Convention which almost all the other nations in the western world signed and which meant that copyright in one country applied world-wide.4 In the USA, till 1986, unless the copyright owner was a permanent resident in the US, they could not secure copyright in that country even if they were performing their own play there. Some tried, nevertheless. The Queensland politician and prolific playwright Randolph Bedford did manage to register no fewer than nine of his plays with the Library of Congress in the years 1910-1930, though it is unclear how. He would have needed to have it performed there and then got a US citizen to register it. Neither seems to have happened. Like many copyright claims in this period, his was probably just bluff.5
Dramatists in Australia before 1912 mostly sold their scripts outright to theatrical producers who in turn, instead of relying on copyright protection, attempted to restrict what they regarded as piracy by more direct means. A popular unpublished play usually existed only as a single manuscript prompt script which was guarded like a prized jewel. If it was stolen or destroyed—and in the Victorian era theatres often burned down—then the work itself was lost.
As had happened since at least Shakespeare’s time, actors were only given ‘sides’—part scripts containing only their own lines and the relevant cues; and often had to return them to the actor-manager at the end of the season. This was customary practice in any case in a period when copies had to be laboriously transcribed by hand, but it also restricted the opportunities for piracy.
In England stage censorship required that a complete copy of a work had to be submitted to the Lord Chamberlain’s Office for approval before being performed. When copyright laws were passed in the Australasian colonies (and similarly in the USA), it was intended that this too would involve the submission of complete copies of all works for which copyright registration was sought. With published works (in the literal sense of the term which still survives in modem copyright legislation; i.e. those printed and distributed in multiple copies as books, including printed plays, etc) this was indeed the case, and those copies submitted now form a major part of the collections of Australiana in the state and national libraries. With the performance of unpublished dramas in manuscript it proved impracticable to demand that a complete copy be deposited—at least until carbon paper and then typewriters came to be widely used.
Obtaining copyright protection for a play in Australia in the nineteenth century was also not the automatic consequence of having written it that it is today. Dramatists were expected to register their work at an appropriate Copyright Office, attached to the Trademarks and Patents Office in each colony. In the earliest years, a copy was submitted to the officer in charge, who read it to see if it contained scurrilous, obscene, defamatory or anti-government material.6
If approved, the manuscript was stamped and (if it was the only copy) returned to the author or theatre manager who had submitted it. Later, these attempts at censoring plays were abandoned. Instead, legislation granting licences to theatre owners include clauses that gave powers to governments to close their premises if offensive material had been performed. Instead of being tied to censorship powers, copyright registration became a powerful weapon (though, as we shall see, until 1912 an imperfect one) which authors and managers could use to guarantee their intellectual property and the way it was used.
The Registration Books in which the copyright officer wrote the details of authorship, title, date and place of first performance, and, if relevant, the assignment of rights to a theatrical manager, have survived for each mainland state (Tasmania had no relevant legislation). Together with the Registers of the later Commonwealth Copyright Office, they offer a basic guide to Australian theatre between 1870 and 1969. In addition the Registers of Stationers’ Hall in London (now held in the Public Record Office at Kew) contain entries relating to the performance of Australian plays between 1877 and 1907; however it is not clear whether a play performed only in Australia could be granted a performing right in Great Britain. Some Australian dramatists did apply to Stationers’ Hall; unfortunately, the whereabouts of the actual scripts sent to London for registration is, according to the Stationers’ Hall’s archivist Robin Myers, ‘something of a mystery’.7
For the United States the published two-volume index Dramatic Compositions Copyrighted in the United States 1870-1916 gives information about the attempted registration of plays in that country by many authors associated with Australia, including W.M. Akhurst, Randolph Bedford, Kyrle Bellew, George Fawcett Rowe, E. Lewis Scott, Toso Taylor, Inigo Tyrell, and J.C. Williamson. It also indicates that scripts of Scott’s The Silence of Dean Maitland (performed in 1894 in Adelaide, registered in 1900 in the USA) and Bedford’s White Australia (1909 Melbourne, 1910 USA) were at one time held in the Library of Congress. I obtained a photocopy of, and later published, Bedford’s offensively racist but influential play, presented by William Anderson’s company in 1909 and witnessed in Melbourne by many fellow legislators and other leaders of Australian society.8
V&A, London
Loopholes, bullying and bluff
Nineteenth-century courts in Britain, the United States and Australia were unwilling to allow authors any rights over their work beyond those unequivocally prescribed by statute. In one famous example, Stowe v Thomas (1853), a Circuit Court in the United States held that Harriet Beecher Stowe’s copyright in Uncle Tom’s Cabin had not been violated by an unauthorised German translation, even though Stowe had previously caused her novel to be translated into German and had secured copyright for her authorised translation.9 Strange as such a decision seems now, the reasoning of Mr Justice Grier shows the fear of the courts that extending authors’ rights would severely inhibit the dissemination and influence of literary and dramatic narratives, characters and ideas throughout society:
By the publication of her book, the creations of the genius and imagination of the author have become as much public property as those of Homer or Cervantes. Uncle Tom and Topsy are as much publici juris as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and abused by imitators, playwrights, and poetasters. They are no longer her own: those who have purchased her book may clothe them in English doggerel, in German or Chinese prose.
The learned judge clearly didn’t care that Cervantes was long dead, but that Mrs Stowe was alive and trying to make money to support her seven children.
The major gap in the 1833 British Dramatic Copyright Act was its silence on such questions of translation and adaptation, and in particular on the common practice of making unauthorised stage adaptations of literary narratives, which the English courts decided did not constitute piracy. This anomaly was a source of much frustration throughout the nineteenth century to novelists in particular, who were obliged to write play versions of their own works, and have them performed in public, if they wished to obtain the performing right for their stories.
The belief that this gave authors some control over dramatic piracy came from Reade v Conquest (1861).10 In 1853 Charles Reade had written a play Gold! which dealt with the Australian goldrushes, and which was performed and also published as a book. Three years later Reade reproduced parts of this play in his novel It’s Never Too Late to Mend, which was in turn dramatised by the popular playwright George Conquest and staged by Conquest’s brother with great commercial success at London’s Grecian Theatre. Reade was able to sue successfully for breach of performing right not because Conquest had dramatised his novel, but because Conquest’s play was held to have a ‘substantial identity’ with Reade’s original play Gold! 11 Novelists therefore assumed that they could protect their works by either dramatising their own narratives or employing a trusted playwright to make an authorised stage version.
From this belief—and from the fact that in any case it was necessary to perform a play in public before performing right could be granted—came the practice of giving a ‘copyright performance’. This involved hiring actors to give a public reading of a new play, sometimes in costume, so that performing right could be claimed before piracy could occur. The practice of giving such readings – both for dramatisations of stories and for original plays—was common in Australia until the 1912 legislation came into effect; special playbills sometimes being printed to give colourable substance to these ‘performances.12
George Coppin, 1881, photo by Waddington, Melbourne
State Library Victoria, Melbourne
Dion Boucicault, 1870s, photo by Bradley & Rulofson, San Francisco
State Library Victoria, Melbourne
Several of the cases reported in Australian courts confirm the lack of faith which playwrights and managers had in the power of the copyright legislation. While in London in 1865, the actor and entertainment entrepreneur George Coppin thought he had secured an agreement with Dion Boucicault—by then and for some years afterwards the most successful popular playwright of them all in Britain, the USA and Australia—for the exclusive right to perform in Australia Boucicault’s latest success, Arrah-na-Pogue.
Back in Melbourne early in 1866, Coppin was angered to learn that the rival actor-manager Barry Sullivan was already staging it in Sydney. Coppin took him to the NSW Supreme Court. Sullivan said that he had evidence that Boucicault had also authorised his production but couldn’t prove this, so an injunction was granted in Coppin’s favour.13 (He widely publicised this and, until I pointed out the error, even his official Australian Dictionary of Biography entry believed him.) However, only two weeks later, Sullivan tendered written evidence to the court that Boucicault had in fact granted him permission to stage the play in Australia. Coppin’s injunction was set aside, and Sullivan’s staging went ahead to much greater acclaim than Coppin’s.14
Soon after, Coppin tried again in a different colony, South Australia.15 In this case an Adelaide manager, Abraham Solomon, did ask Coppin’s permission, but the latter’s proposed terms—fifty percent of the gross takings over and above the first one hundred pounds a week—were not acceptable to Solomon, who went ahead with an unauthorised performance. In the South Australian Supreme Court Gwynne J. rejected Coppin’s application for an injunction to prevent Solomon from presenting Boucicault’s play.
The problem was that, the year before Coppin’s presumed purchase of the Australian performing rights to Boucicault’s play, in London the case of Jeffries v Boosey (1854) had been decided. The judge, Lord St. Leonard, stated that copyright could be sold outright but not divided up amongst different purchasers in different parts of the British Empire.16 Thus rights could be assigned (that is, sold in their entirety), but a manager who had simply obtained a licence to give performances in particular English counties or overseas colonies could not sue other managements for breaches of copyright. Boucicault himself could have sued Solomon successfully, but Coppin could not. This case was cited and followed by court in colonial Australia from that time onwards.
Probably this difficulty was a relatively minor one in Great Britain where a manager who had obtained a licence to perform an author’s play could quickly communicate with the author or the assigned copyright holder, and where licence agreements presumably contained clauses which obliged the copyright holder to protect the exclusive rights of a licensee. However, it was a major obstacle in the distant colonies of Australasia, where a pirate might well conclude a long and successful season before the author even knew of the breach of performing right, and where in any case legal proceedings by the author would have been greatly hampered by the tyranny of distance.
Jeffries v Boosey didn’t stop George Coppin. An occasional playwright himself, he established the Dramatic Author’s Association and, according to his Australian Dictionary of Biography entry, claimed to have ‘acquired the nucleus of what later amounted to the performing rights covering some eight thousand works’.17 He publicised his first legal victory and not the ones he lost and pursued other managements relentlessly. They, often less financially secure than he was and, in any case, wanting to avoid the expense of litigation which would probably cost more than the licence fee, generally capitulated. But there was no legal basis for Coppin’s bullying for the next 41 years.
Maggie Moore and J.C. Williamson in Struck Oil, from The Australasian Sketcher, 5 September 1874
State Library Victoria, Melbourne
Alice Lingard as Josephine in one of the many ‘pirate’ versions of HMS Pinafore, 1879/1880. Photo by Clifford & Morris, Dunedin.
State Library of NSW, Sydney
J.C. Williamson’s bluff
The next actor-manager to succeed Coppin and used the same bluff and bully tactics was J.C. Williamson. Williamson and his then wife, Maggie Moore, were Americans who had toured Australia in 1874-75 with a hugely successful play written in part by Williamson himself, Struck Oil. (A beautiful manuscript of this is held in the Victorian colonial copyright collection.) They subsequently played it in England and America, and early in 1879 made plans to again visit the Australian colonies.
Wanting to move from being an actor to a theatrical entrepreneur, Williamson came to an agreement with Gilbert and Sullivan which he thought granted him an exclusive right to perform in Australia and New Zealand their extremely successful new comic opera HMS Pinafore. This licence, which cost Williamson the large sum of three hundred English pounds for only one year’s rights, also specifically empowered Williamson to sue, ‘in the name of the authors, for all damages and penalties incurred by others not licensed to represent the said piece’.18
While playing in San Francisco in June, Williamson heard to his alarm that ‘Pinaforemania’ had already reached Australia. Kelly and Leon’s company were performing it in Sydney and there were two simultaneous productions in Melbourne: one by the Lingards at the Academy of Music and the other by the Stewarts at St. George’s Hall. Williamson instructed his Australian attorney to register HMS Pinafore in the colonies and, arriving in Sydney on the Zealandia on 3 August, he immediately commenced legal proceedings against all three companies. The Stewarts’ season had already ended; their management later came to a ‘satisfactory arrangement’ with Williamson.19 The Lingards, still performing in Melbourne while Williamson was litigating Kelly and Leon in Sydney, ignored his suit. After fifty-six performances to capacity houses, they closed their production just before Williamson arrived in Melbourne and shortly afterwards went to New Zealand. Williamson’s lawsuits pursued them, but no evidence has been sighted to suggest that he was successful in suppressing unauthorised performances of HMS Pinafore by the Lingards or any other company in any colony other than New South Wales.20
However, in Sydney on 9 August 1879 in Williamson v Kelly, Williamson succeeded in getting an injunction to restrain the Kelly and Leon Minstrels from performing HMS Pinafore. As this was the first action he had commenced, it must have given considerable concern to his adversaries and confirmed their desire not to indulge in expensive and possibly unsuccessful litigation. An ‘unusually large attendance of the public’ was present on the Saturday morning of the case, and reports of the hearing were widely and prominently reported in the Sydney and Melbourne press.21
However, the reports suggest that the matter was decided on the facts, but despite the law:
It was the defendants’ fault, for they let the case be heard on plaintiff’s affidavits only. He had facts on one side only, but arguments on both sides. ... His Honour ... said he had some difficulty in granting the injunction in the face of Jeffries v Boosey. He thought there was sufficient ground to grant the injunction especially as plaintiff had gone to great expense in preparing for the piece.
The matter was complicated by the fact that the judge, Sir William Manning, was an acting judge and his duties were to cease at the end of the same Saturday’s session. He decided therefore to grant only an interim injunction, effective from the following Monday, until the matter could be heard by the Full Court of the Supreme Court. However, Kelly and Leon decided to save themselves further legal expense by withdrawing their production after that Saturday evening’s performance. (They had already played a full season of HMS Pinafore and had completed several weeks of a return season.)
Williamson’s aggressive willingness to litigate his presumed ‘rights’ appears to have successfully bluffed the pirates into a strategic retreat, but the matter was not mentioned in the law reports for that year and was not cited as authority in subsequent cases. The incident shows something of the gap between industry myths about copyright law and established case precedent. Many theatre professionals chose to believe that this case had validated copyright licence agreements in the Australian colonies, a belief which Williamson himself did much to promulgate,22 as Coppin had done with his single success thirty years earlier. Judicially it did not alter the law in any way and almost certainly a permanent injunction would have been refused if the matter had ever gone to the Full Court.
To be continued
Author’s Note
The first version of this article, entitled ‘Dramatic Copyright in Australia to 1912’ and written jointly with lawyer Roslyn Atkinson who located the surviving cases and checked the draft for legal accuracy and correct citations, originally appeared in Australasian Drama Studies 11 (1987): 47-63. Full citations appear there, plus a guide to some scripts registered in the Victoran colonial Copyright Office. Since then, I have found more relevant evidence, which has been incorporated in this new version. See also Richard Fotheringham, ‘Copyright Sources for Australian Plays and Films’, Archives and Manuscripts 14.2 (1986): 144-53.
Endnotes
1. ‘The printing press and the Statue of Anne‘, Australian Libraries and Archives Copyright Coalition, alacc.org.au, accessed 17 December 2025.
2. For an explanation of copyright as it applied to dramatic works in England in this period, see ‘Copyrighting a Dramatic Work ‘, Phyllis Hartnoll, ed., The Oxford Companion to the Theatre (London: Oxford UP, 1951), pp. 149-154.
3. See Merilyn Minell, A Nation’s Imagination: Australia’s Copyright Records, 1854-1968. National Archives Research Guide No 18 (Canberra: Commonwealth of Australia, 2003).
4. See ‘Berne Convention’, Intellectualpropertyoffice.org, accessed 17 Deecmber 2025.
5. Dramatic Compositions Copyrighted in the United States 1870-1916, 2 vols (Washington: Government Printing Office, 1918).
6. For an example of an attempt to use copyright laws as a form of political censorship, see Veronica Kelly, ‘The Banning of Marcus Clarke’s The Happy Land: Stage, Press and Parliament ‘, Australasian Drama Studies, 2.1 (l983), pp.78-80.
7. Robin Meyers, letter to the author, 14 October 1986.
8. Playlab Press (Brisbane), 2014.
9. 2 Wall. Jr. 547; 2 Am. Law Reg. 210.
10. 9 C.B. (N.S.) 755 [142 E.R. 297]; (1862) 11 C.B. (N.S.) 479 [142 E.R. 883].
11. ibid.
12. See e.g. the playbill printed for the copyright performance on 31 July 1911 for Wilton Welch, The Wool King, CRS A1336/1 item 2026, National Archives of Australia (ACT).
13. Sydney Morning Herald, 9 March 1866.
14. Sydney Morning Herald, 21 March 1866.
15. Coppin v Solomon (1868) 2 S.A.L.R. 83.
16. 4 H.L.C. 815; [10 E.R. 681].
17. Australian Dictionary of Biography, vol. 3, 1969.
18. Sydney Evening News, 9 August 1879, reprinted in the Argus (Melbourne), 12 August 1879, p.6.
19. Argus, 19 August 1879, p.5.
20. Coppin v Solomon (1868) 2 S.A.L.R. 83.
21. Sydney Evening News, 9 August 1879. See, in addition to the Sydney Evening News and Argus accounts, Sydney Morning Herald, 1 August 1879, p.6.
22. Garnet Walch, The Williamsons, Being A Brief Account of the Careers of Mr and Mrs J C. Williamson. Together with Facts and Figures Relating to the Firm of Williamson, Garner, and Musgrove (Melbourne: William Marshall, 1885), p.22. I am grateful to Professor Veronica Kelly for drawing my attention to this obscure source.
