A Copyright Casualty — Part I

Not many of us will have found an ancestor who had fallen victim to a case of copyright infringement, but fewer still will have found an ancestor who was involved in an important copyright case — one that is still cited in modern textbooks because of its unusual circumstances.

Figure 1 - The trap for the unwary looking for gain.

According to various census returns, William Ashbee was born c1803 in Hillesley, Gloucestershire, but he was baptised about 2.5 miles south of there at Hawkesbury, on 6 Mar 1803, to Isaac and Hester Ashbee.[1] Following the reading of the Banns on 18 Jun 1825, he married Ann Hayward in the parish of Westonbirt, about 7 miles east of Hillesley.[2]

In 1841, they were living in Fox Hill, Tetbury, about 13 miles E-NE of Hillesley, and William was a ‘mason’[3], apparently the same as his father. By this time, they had established their family of four children whose ages then ranged from 4 to 15.

Figure 2 - Family Tree of William and Ann Ashbee.

In 1851, they were still living in Fox Hill but William was now a ‘baker’.[4] Interestingly, the next household on that census page — actually on Silver Street — was of the Godwin family; the family into which William’s eldest son, Thomas, would wed later that year.

In 1861, they had moved to Long Street, Tetbury, and William was now a ‘baker & grocer’.[5] Also in the household was their 8-year-old granddaughter, Jane A[ugusta] Ashbee. She had been born to Thomas Ashbee and Sarah Jane Godwin on 25 Sep 1852[6], but her mother had died either during or shortly after the birth. I can find no record of her death but Thomas remarried to Eliza Dean in 1854.

In order to further establish the occupation and location of William during these years, I consulted a number of trade directories, and these yielded the following information:

Date	Location	Occupation	Notes
1849	The Green, Tetbury	Baker	[a]
1852–53	Long St, Tetbury	Baker	Proprietor was a Mary rather than William.[b]
1856	Long St, Tetbury	Baker & Grocer	Mrs Mary Ashbee is also a baker at Gumstool Hill.[c]
1868	Silver St, Tetbury	Baker	[d]

[a] Hunt & Co's Directory of Gloucester & Bristol, 1849, p.172 (image 175 of 587), online PDF, University of Leicester, compiler, Historical Directories (http://specialcollections.le.ac.uk/ : accessed 8 Feb 2015).

[b] Slater's Directory of Berks, Corn, Devon, ... Glos, ..., 1852-53, p.162 (image 564 of 1070), Historical Directories.

[c] Post Office Directory of Gloucestershire, Bath & Bristol, 1856, p.369 (image 380 of 619), Historical Directories.

[d] Slater's Directory of Glos, Herefs, Mon, Shrops & Wales, 1868, p.271 (image 283 of 1151), Historical Directories.

What this information shows is that William was still associated with baking in Tetbury, right up until 1868. This is important because he changed his profession to that of publisher around this same time, and he obviously took the decision quite late in life as he was nearly 65 years old.

Figure 3 - Long Street, Tetbury, 1949. © The Francis Frith Collection.[7]

William Ashbee, in partnership with Louis (or Lewis) Simonson, Edward Dutton, and Francis Alexander Lamb, formed a new publishing company called Ashbee & Co. However, their first work, The Merchants’ and Manufacturers’ Pocket Directory of London, immediately ran into trouble: an injunction on its publication and sale was sought by John Stuart Crosbie Morris, publisher of 4 Moorgate Street Buildings, on the grounds that it was pirated from his own Business Directory of London. I cannot determine when the bill was filed but the law suit — more formally known as: Morris v. Ashbee (1868) LR [Law Report] 7, Eq. [Equity case] 34 — was already partially heard by 4 Nov 1868.[8]

The bill alleged that the four defendants (identified above) had been previously employed by Morris (the plaintiff) as canvassers in the preparation of his own directory, published in 1867. Morris suspected that Simonson was going to bring out a directory of his own, in opposition to his, and so he was fired. Morris wanted the other three to sign an undertaking that they wouldn’t join Simonson unless they were discharged from his service, but they refused and so they were fired too. The four defendants were reported to have commenced business at 190 Gray’s Inn Road and had published their own directory in January 1868.[9]

An advertisement for canvassers was running during December 1867 that was using this address and so it further refines the date at which Ashbee & Co. began operating:

“Ten respectable men wanted, to canvass for orders for a new copyright engraving. Directory canvassers preferred. Apply, personally, until 17th inst., between the hours of 10 and 2, at 42 Charlotte-street, Portland-place, W.; or between 3 and 7 O'clock, at Ashbee and Co.'s, 190 Gray's-inn-road, W.C. canvassers now realizing between 15s and 20s per day”.[10]

By the time the bill was served, Ashbee & Co. were operating from 32 Bouverie Street, off Fleet Street, London. These premises had, for some time, been associated with another publisher called Thomas Murby, known for his “Excelsior Reading Books” and “Indestructible Binding for School Books”.

Figure 4 - Fleet Street, London, c1886. © The Francis Frith Collection.[11]

Morris claimed that defendants had pirated information from his own directory, and some cases of typographic errors having been duplicated were used to substantiate this allegation. However, the court was satisfied that wholesale copying had not occurred.

The defendants admitted that they cut-up the plaintiff’s directory and pasted strips onto new sheets, but claimed that these were merely used by their canvassers to locate prospective clients for their own directory, and that the form and layout or their directory was wholly their own. This is where the detail of the case gets very murky since Morris was the defendant in a previous case: Kelly v. Morris (1866) LR 1 Eq. 697. Frederic Festus Kelly’s Post Office London Directory was used in a similar way by Morris to direct his canvassers as opposed to actually copying any of the source material. There were also more serious allegations of pirating involved in that case as many typographic and other errors, and details of deceased persons and defunct businesses, had crept into the newer directory. Morris lost that case and an injunction was served on the associated directory: The Imperial Directory of London.

The main difference in Ashbee’s case concerned the fact that advertisements were public property. Morris still used a similar technique that collated information from public advertisements, newspapers, flyers, etc., as well as previous editions of his own directory, in the preparation of material to direct his canvassers. Ashbee claimed that since trades people paid Morris for additional differentiators — such as their names appearing in capitals, or “extra lines” describing their business, or actual advertisements near to their directory entries — then those specific entries amounted to advertisements and that he was entitled to use them in a similar way to Morris.[12]

In fact, in Simonson’s evidence, he claimed that on leaving the employment of Morris, in April 1867, that he had told him not only of his intention to create a pocket directory, but also the manner in which he was going to use a copy of his directory, but Morris allegedly made no complaint.[13]

Although the Morris v. Ashbee case had some differences from the prior Kelly v. Morris case, there were still strong similarities: namely the contention that a mercantile directory was intended to be used in order to locate trades people and their addresses, and that entries were deliberately arranged in alphabetical order of name and of trade to facilitate this. This might be obvious in any context except one involving the production of a rival publication.

So what do you think? Was Ashbee in the wrong, and if so then in what way? In the follow-up to this article, I will discuss the details of how the case went and what the repercussions were.

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[1] "England Births and Christenings, 1538-1975", database, FamilySearch (https://familysearch.org/ark:/61903/1:1:NP5Y-3MQ : accessed 24 August 2015), William Ashbee, 6 Mar 1803; citing HAWKESBURY,GLOUCESTER,ENGLAND; FHL microfilm 425,436, 856,929.

[2] “Marriage Banns”, database, TheGenealogist (http://www.thegenealogist.co.uk : accessed 20 Feb 2015), entry for William Ashbee and Ann Hayward, 1825, Westonbirt parish.

[3] "1841 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 38); citing  HO 107/362, book 11, folio 39, page 13; The National Archives of the UK (TNA).

[4] "1851 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 48); citing  HO 107/1967, folio 176, page 19; TNA.

[5] "1861 England Census", database with images,  Ancestry (www.ancestry.co.uk : accessed 24 Aug 2015), household of William Ashbee (age 58); citing  RG 9/1780, folio 44, page 36; TNA.

[6] England, birth certificate for Jane Augusta Ashbee, born 25 Sep 1852; citing 6a/296/380, registered Cirencester 1852/Dec [Q4]; General Register Office (GRO), Southport.

[7] Long Street, Tetbury, 1949. Image © The Francis Frith Collection, ref: T155019 (http://www.francisfrith.com/us/tetbury/tetbury-long-street-1949_t155019 : accessed 27 Aug 2015). The hotel visible on the left is the Ormond’s Head Hotel (no. 42), which was in the 1861 census and is still there today. According to UK Pub History, this apparently had some connection with the Ashbee family at a much earlier date (http://pubshistory.com/Gloucestershire/Tetbury/OrmondsHeadTavern.shtml : accessed 26 Aug 2015).

[8] "Law Intelligence: Court of Chancery Nov.4: Morris v. Ashbee", London Evening Standard (5 Nov 1868): p.7, col.1

[9] "Law Intelligence: Equity Courts - Tuesday: Morris v. Ashbee", Morning Post (11 Nov 1868): p.7, col.3.

[10] “Ten Respectable Men Wanted”, The Times, Issue 25995 (London, Monday 16 Dec 1867): p.3, col.3.

[11] London, Ludgate Hill From Fleet Street c.1886. Image © The Francis Frith Collection, ref: L130184 (http://www.francisfrith.com/us/london/london-ludgate-hill-from-fleet-street-c1886_l130184 : accessed 27 Aug 2015).

[12] “Rival Directories”, Lloyds Weekly (15 Nov 1868): p.7.

[13] "V. C. Gifford's Court: Morris v. Ashbee and Another", The Law Times Reports; Containing All the Cases Argued and Determined in the House of Lords, the Privy Council, the Court of Appeal ..., Volume XIX [19], September 1868 to February 1869 (London: Horace Cox, Strand, 1869): pp.550–3.

Synchronised Dates

In A Calendar for Your Date — Part I, I mentioned the changeover from the Julian calendar to the Gregorian calendar. People who have read about this may have heard terms such as dual dates, double dates, double years, new/old style, but do you really know what they mean? Was the handling of this changeover a special case — one that needs its own treatment in our data — or was it really an example of a generalised case? It’s time to take the lid off.

Figure 1 - Synchronised swimming in a sea of dates.

The Gregorian calendar was introduced by papal bull on Thursday 4 Oct 1582, Julian (followed by Friday 15 Oct 1582, Gregorian), but a couple of factors prevented its automatic adoption everywhere. One of these was the fact that it was devised by the Roman Catholic Church, and so in a time of especially fraught church tensions other churches saw it as some type of power-play and resisted. For instance, although other Catholic countries in Europe adopted it either immediately (e.g. Spain), or later that year (e.g. France), or the following year (e.g. Netherlands), Britain, including its colonies — some to later become part of the US — didn’t change until Wednesday 2 Sep 1752, Julian (followed by Thursday 14 Sep 1752, Gregorian; the difference by that time being 11 days rather than 10). Another factor was that many people considered that days were being stolen from them — between 10 and 13 days, depending on the date that their changeover occurred. Birthdays and anniversaries changed, events changed, and that shortened year (282 days for Britain) created difficulties for handling taxes, deadlines, and interest.[1] So why were days taken away?

To understand this, it is important to know the reasons for the calendar change. The length of the Julian year was too long (365.25 days) and that meant that the Easter date was drifting backwards from the traditional date as defined by the early church. There were therefore two main parts to the calendar change: the solar part whereby new leap-year rules corrected the average year to 365.2425 (much closer to the measured average of 365.24219 days), and the lunar part which corrected the cumulative error of 13 centuries of drift by removing 10 days.

To complicate things slightly more, the British year was also deemed to start on the 1^st January rather than the 25^th March (Lady Day) that it had done since the 12^th Century (except in Scotland where they had already changed in 1600). The UK Calendar (New Style) Act 1750, which introduced the calendar changeover, justified the adjustment of the civil year by “Whereas the legal supputation of the year of our Lord in England, according to which the year beginneth on the twenty-fifth day of March, hath been found by experience to be attended with divers inconveniences, not only as it differs from the usage of neighbouring nations, but also from the legal method of computation in Scotland, and from the common usage throughout the whole kingdom, …”.[2] Note that 1^st January had long been celebrated as the start of the “historical year” (New Year’s Day) but the Gregorian calendar was essentially a civil calendar, and this was part of the reason why the church could not mandate it. The terms Old Style (O.S.) and New Style (N.S.) are often used to clarify the ambiguities of dates falling between 1^st January and 24^th March. Old Style meant that something was dated according to the old civil year and so must be adjusted to align with the New Style civil year, or to the historical year.[3]

The fact that the civil and historical years were already different in Britain, even before the calendar changeover (except in Scotland), meant that there was already a means of representing a year combination using a notation informally called double years. For instance, 3^rd March 1733/4 clarified that this was March of the civil year 1733 and of the historical year 1734 (i.e. the month before April 1734).  Following the Julian-to-Gregorian calendar change, the difference of 11 days meant that it was not just the year that was different; a date such as 10/22 January 1705/6 explicitly represented both the Julian and Gregorian dates, including their corresponding years.[4] This was another form of a dual date, or double date although this term is no longer preferred due to the ambiguity with the social occasion of the same name.

Even today, the start of the old civil year affects everyday life in Britain since the start of the personal tax year remained at 25^th March (O.S.), or 5^th April (N.S.), until 1800 when it moved to 6^th April. Britain also retains a double-year notation to indicate that a tax year spans two year numbers, e.g. 2011/12.

Although Easter should fall on the Sunday following the full moon that follows the northern spring equinox, both the full moon and the equinox are now determined by calendar rules rather than direct observation. This means that the date calculation (Computus) now differs in different calendars, in different localities, and in different religions. Not all holy festival dates were moved during the changeover, though; the date of Christmas was already 25^th December in the Julian calendar. This was subsequently retained by all Western churches, and by some Eastern ones. The equivalent Julian date (in this present time) would be 7^th January, and some churches do continue to use that date.

A large part of the confusion must be attributed to the fact that the same calendar era was used — meaning that year numbering was designed to run, as consecutively as possible, from the previous ones — and that the same month names and day counts were retained. Hence, when birthdays or anniversaries had been “bumped up”, it appeared to be a seriously intrusive change, despite the measurement actually being according to a different calendar scale. It is interesting to observe that this demonstrates how indispensable the notion of a calendar had become, and how people attached greater significance to the day number and month name than to the actual time of the year.

If the change had merely included new leap-year rules then no one would have noticed until the next difference (year 1700). Even the change of the year start would have been manageable since countries such as Scotland had already achieved it. However, the correction of 10 days, combined with retention of the old months, appeared as though days were being stolen, and it supposedly caused riots. Finally, the pope’s bull came at a very difficult time as far as relations between the Catholic and Protestant churches were concerned. It was issued in the reign of Elizabeth I and in 1584 a previous attempt was made to adopt it. An act was prepared entitled ‘An act to give Her Majesty authority to alter and make a new calendar, according to the calendar used in other countries’. Although the bill passed two readings in the House of Lords, stalling tactics by Protestant bishops ensured that it was eventually ignored.[5]

When we observe dual dates written during this chaotic transition, or from the period before, when the civil and historical years differed, we can identify two dates expressed according to distinct calendars: the Julian and Gregorian, or Julian with civil and historical years, respectively. In other words, it was not always the case that dual dates represented Julian and Gregorian dates during the changeover — a common misconception. What the cases have in common is that the date pairs represented the same day.

In A Calendar for Your Date — Part II, I made a case for holding an additional normalised (computer-readable) version of our dates, but how should this be extended to such pairs? The situation is not a special case as there are other precedents for representing the same day according to different calendars. In Israel, for instance, government documents usually carry a dual date embracing both the traditional Hebrew calendar and the Gregorian calendar. Similarly, following the calendar reforms of India, in 1957, government documents carry a dual date embracing the new national calendar of India and the Gregorian calendar.

STEMMA therefore defines the notion of synchronised dates, where a single entity describes an item from a written or printed source that embraces representations of the same day according to two or more calendars. To see this in action, let’s look at the combined Julian-Gregorian date example from above:

Figure 2 - Synchronised Julian and Gregorian dates.

We can immediately see that the one evidential form — that obtained from the consulted source — yields two normalised forms: one according to the Julian calendar and one to the Gregorian calendar. Any number of display forms can be generated from these normalised forms, dependent upon the regional settings and personal preferences of the end-user.

Anyone who hasn’t read my previous two articles on dates might be wondering why we need to store two normalised values when one will do, employing a conversion algorithm when necessary. However, note that not all such dual dates have an obvious interpretation. For instance, double years were occasionally used for months other than January to March which makes little sense, and so needs some considerable interpretation. These two normalised forms provide a direct interpretation of the relevant parts of the evidential form.

When other calendars are considered then the conversion to the Gregorian calendar — necessary for date comparison and timelines — is not always reliable. In these circumstances, the same entity can describe the direct interpretation of the evidential form and the calculated version of it. I’ll return to the French Republican calendar example from the aforementioned article in order to demonstrate such a conversion:

Figure 3 - Synchronised French Republican and calculated Gregorian dates.

In effect, the same synchronised-date entity is used to represent both dual dates and cases where a value in an alternative calendar has been calculated. In both circumstances it binds the multiple derived forms (normalised and/or calculated) to a single evidential form.

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[1] David Ewing Duncan, The Calendar (London: Fourth Estate Ltd, 1998), pp.288–289.

[2] “Calendar (New Style) Act 1750”, transcription, legislation.gov.uk (http://www.legislation.gov.uk/apgb/Geo2/24/23 : accessed 4 Aug 2015), in introduction; delivered by The National Archives of UK.

[3] University of Nottingham , “Historical Year and the Civil Year”, UK Campus: Manuscripts and Special Collections (https://www.nottingham.ac.uk/manuscriptsandspecialcollections/researchguidance/datingdocuments/historicalandcivil.aspx : accessed 3 Aug 2015).

[4] Mike Spathaky, "Old Style and New Style Dates and the change to the Gregorian Calendar: A summary for genealogists", GENUKI (http://www.cree.name/genuki/dates.htm : accessed 4 Aug 2015), under "The cause of ambiguities - 2. The Start of the year".

[5] E. G. Richards, Mapping Time: The Calendar and its History (1998; reprint, Oxford University Press, 2005), p.252.