Below is, in full, a letter from author, politician, and diplomat Joel Barlow, deeply involved during the Founding period of the United States. The letter, written in 1783 to the Continental Congress, which preceded the current federal government operating under the Constitution, called for a copyright law in the United States to protect and encourage authors.
The first US Copyright Act is primarily the result of lobbying from individual authors. Both Barlow and Noah Webster (responsible for the dictionary bearing his name today) deserve the most credit for the introduction of these protections. Barlow’s letter resulted in a resolution by the Continental Congress recommending to the States the passage of copyright laws. Most of the original States followed the Congress’s recommendation and passed their own laws protecting copyright (Only Delaware failed to pass legislation; Connecticut had actually passed a copyright bill shortly before the recommendation). When delegates met to draft the new Constitution in 1787, concerns for national uniformity to protect literary property spurred the drafting of the Copyright Clause, and the first US Copyright Act was enacted in 1790.
Barlow begins his letter laying out the arguments favoring the protection of authors and creators. He justifies copyright as a natural right, drawing on a Lockean theory of property. At the same time, he notes that protecting creators encourages them to contribute to the “national character”, an encouragement that should lie at the heart of any civilized nation. He finally notes several examples of American authors who have found their work reprinted without permission, suffering both financially and in reputation.
The influence of Barlow’s letter on the development of US copyright law is apparent. The Continental Congress and several of the States which subsequently enacted copyright laws repeated Barlow’s assertion that “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination.” And the First Congress seems to have been convinced with Barlow’s recommendation of looking to England’s 1710 Statute of Anne for inspiration; the Copyright Act of 1790 closely resembles that law.
The following transcription of the letter comes from Primary Sources on Copyright, originally scanned from the National Archives.
After having been honored by a slight acquaintance with your Excellency in your private capacity, & receiving marks of attention which I bear in mind with gratitude, I take the liberty of addressing you on a subject in which I conceive the interest & honor of the Public is very much concerned. I mean the embarrassment which bears upon the interests of literature & works of genius in the United States. This embarrassment is natural to every free Government; it is one of the evils of society, which requires to be removed by positive statutes securing the copy-rights of Authors, & in that way protecting a species of property which is otherwise open to every invader. It is a subject which, during the more important affairs of the present revolution, we could not expect to see attended to by any of the Legislatures, but is now much thought of by many individuals, & perhaps can not be too early proposed to the attention of Congress & the several States.
It would be needless to recall to your Excellency’s mind, the encouragement that has been universally given in other countries to the exertions of genius, in every way which might serve to elevate the sentiments & dignify the manners of a nation. The Historian, The Philosopher, the Poet & the Orator have not only been considered among the first ornaments of the age & country which produced them; but have been secured in the profits arising from their labor, and in that way received encouragement in some proportion to their merit in advancing the happiness of mankind.
There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public. From these considerations it is, that most of the civilized nations have removed the natural obstructions which lie in the way of literary emulation, & given the consequent encouragement to every species of laudable ambition.
America has convinced the world of her importance in a political & military line by the wisdom, energy & ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character; and she ought to encourage that variety & independence of genius, in which she is not excelled by any nation in Europe. As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law. In England, your Excellency is sensible that the copy-right of any book or pamphlet is holden by the Author & his assigns for the term of fourteen years from the time of its publication; &, if he is then alive, for fourteen years longer. If the passing of statutes similar to this were recommended by Congress to the several States, the measure would be undoubtedly adopted, & the consequences would be extensively happy upon the spirit of the nation, by giving a laudable direction to that enterprising ardor of genius which is natural to our stage of society, & for which the Americans are remarkable. Indeed we are not to expect to see any works of considerable magnitude, (which must always be works of time & labor), offered to the Public till such security be given. There is now a Gentleman in Massachusetts who has written an Epic Poem, entitled “The Conquest of Canaan”,* a work of great merit, & will certainly be an honor to his country. It has lain by him, finished, these six years, without seeing the light; because the Author cannot risque the expences of the publication, sensible that some ungenerous Printer will immediately sieze upon his labors, by making a mean & cheap improvision, in order to undersell the Author & defraud him of his property.
This is already the case with the Author of McFingal.** This work is now reprinted in an incorrect, cheap edition; by which means the Author’s own impression lies upon his hands & he not only loses the labor of writing, & the expence of publishing, but suffers in his reputation by having his work appear under the disadvantages of typographical errors, a bad paper, a mean letter & an uncouth page, all which were necessary to the printer in order to catch the Vulgar by a low price. The same Gentleman has by him a number of original Poems, of equal merit with those he has already given to the Public; which cannot be brought forward, for the above reasons.
These two instances may convince us that we have arrived at that stage of improvement in America which requires the attention of the Legislatures to this subject; & I have reason to hope, from the opinion of some Gentlemen of Congress, & others with whom I have conversed upon it, that we shall shortly see it in Effect, if your Excellency should think it a matter worthy of your attention. The importance of the subject, & your well-known attachment to the sciences are my only apology for troubling you with so long a letter.
I have the honor to be, Sir, your Excellency’s most obliged & very humble Servant,
*) Rev. Timothy Dwight (1752-1817) was the author of The Conquest of
Canaan, a biblical allegory of the taking of Connecticut from the British. It was not to be published until 1785.
**) McFingal, a mock epic poem by John Trumbull (1750-1831), had
originally been published in full in 1782.