Copyhype

Before there was a Bill of Rights, the United States had copyright. Twelve of the thirteen states had already positively secured authors’ exclusive rights by the time the drafters of the Federal Constitution gave the federal Congress power to enact copyright legislation. On May 31, 1790—225 years ago this week—President George Washington signed the first federal Copyright Act into law.

A lot has been said in the past two centuries about what the goals and purposes of copyright law should be. What would the outcome of an ideal legal framework look like? For many, the focus is on creation and dissemination of knowledge, or participation in culture. But others have shifted the focus from the works that copyright encourages to the authors it secures.

Devotion to Craft

When writing about “The Next Great Copyright Act,” current Register of Copyrights Maria Pallante said:

The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers and visual artists. Indeed, “[a] rich culture demands contributions from authors and artists who devote thousands of hours to a work and a lifetime to their craft.” A law that does not provide for authors would be illogical—hardly a copyright law at all. And it would not deserve the respect of the public. ¹36 Columbia Journal of Law & the Arts 315, 340 (2013).

The Copyright Office, in fact, has a long tradition of placing authors and authorship at the center of copyright law. Former Register Barbara Ringer, who was in office 1973-1980, wrote during her tenure:

I believe it is society’s duty to go as far as it can possibly go in nurturing the atmosphere in which authors and other creative artists can flourish. I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days. ²The Demonology of Copyright, R.R. Bowker Memorial Lecture (October 24, 1974).

It is not just Registers of Copyright who have made these points. In 1954, the US Supreme Court wrote that the economic philosophy of copyright is the “conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.'”³Mazer v. Stein, 347 U.S. 201, 219 (1954). It spoke of “Sacrificial days devoted to such creative activities,” and said this devotion is deserving of “rewards commensurate with the services rendered.”

A New York court, in a case involving unauthorized reproduction of sound recordings of opera performances, repeatedly emphasized the great expenditures of authors before finding in favor of the plaintiffs. It said, “To refuse to the groups who expend time, effort, money and great skill in producing these artistic performances the protection of giving them a ‘property right’ in the resulting artistic creation would be contrary to existing law, inequitable, and repugnant to the public interest.” ⁴Metropolitan Opera Association v. Wagner-Nichols R. Corp., 199 Misc. 786, 802 (NY Sup 1950).

The common thread through these quotes is the emphasis on continued labor—”thousands of hours” and “sacrificial days”—craft, and pursuit of private gain. The focus is thus on the author. But, more importantly, these quotes speak of not just any type of authorship, but of sustained authorship. Copyright protects all authors, but it covets professional authors.

Promoting Art and Science

One can go back to the dawn of US copyright law to see that sustained and professional authorship has been repeatedly stated as an end of copyright.

Some spoke of authorship that requires the devotion of significant periods of time. For example, when Joel Barlow lobbied the Continental Congress to recommend copyright protection in 1783, he argued, “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.” ⁵Letter from Joel Barlow to the Continental Congress (1783) (emphasis added).

Several years later, as ratification of the Constitution was being debated, Pennsylvania delegate Thomas McKean said, “[T]he power of securing to authors and inventors the exclusive right to their writings and discoveries, could only with effect be exercised by Congress. For, sir, the laws of the respective States could only operate within their respective boundaries, and therefore, a work which has cost the author his whole life to complete, when published in one State, however it might there be secured, could easily be carried into another State, in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular, and to the cause of science in general.” ⁶Thomas McKean, Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution (emphasis added).

Others spoke explicitly about profits. The Connecticut Copyright Act, passed in 1783, begins by stating, “Whereas it is perfectly agreeable to the Principles of natural Equity and Justice, that every Author should be secured in receiving the Profits that may arise from the Sale of his Works, and such Security may encourage Men of Learning and Genius to publish their Writings, which may do Honour to their Country, and Service to Mankind.”⁷Act of Jan. 29, 1783 (Conn.) (emphasis added).

Thomas Paine, whose work embodied many of the ideals of the young republic, connected the two, writing: “Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.”⁸Letter to Abbe Raynal (1792) (emphasis added).

The language in the Constitutional grant of authority for copyright, “to promote the progress of science and useful arts”, is also found in discussion of education and educational institutions, demonstrating parallels between the work of being an author and the work of being a student.

For example, one of the Congressional powers proposed at the same time as the copyright and patent powers during the Constitutional Convention read, “To establish seminaries for the promotion of literature and the arts and sciences.⁹Farrand, Records of the Federal Convention 322 (emphasis added). Similarly, in his first State of the Union address, George Washington told Congress, “Nor am I less persuaded that you will agree with me in opinion that there is nothing which can better deserve your patronage than the promotion of science and literature” (emphasis added). After extolling the benefits of such promotion, Washington concluded, “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients will be well worthy of a place in the deliberations of the legislature.”

James Madison, who was pivotal in ensuring the federal government would have power to secure copyrights, also used similar language when referring to education. In an 1822 letter, Madison wrote in support of “liberal appropriations made by the Legislature of Kentucky for a general system of Education,” saying,

Throughout the Civilized World, nations are courting the praise of fostering Science and the useful Arts, and are opening their eyes to the principles and the blessings of Representative Government. The American people owe it to themselves, and to the cause of free Government, to prove by their establishments for the advancement and diffusion of Knowledge, that their political Institutions, which are attracting observation from every quarter, and are respected as Models, by the new-born States in our own Hemisphere, are as favorable to the intellectual and moral improvement of Man as they are conformable to his individual & social Rights. What spectacle can be more edifying or more seasonable, than that of Liberty & Learning, each leaning on the other for their mutual & surest support?¹⁰Letter from James Madison to W. T. Barry (August 4, 1822) (emphasis added).

While it’s certainly the case that the efforts of authors promotes learning in the general public, one could also say one of the ends of copyright is to encourage learning by authors themselves. This aligns with Barlow’s observation above that the rights of authors need to be secured in order to enable them to “spend a whole life in study.” This study, in turn, allows authors to produce those works which advance the arts and sciences.

It’s interesting to note another connection between copyright and enabling professional authorship. The first Copyright Act secured protection for 14 years (plus an optional 14 year renewal period). This term was borrowed from England’s Statute of Anne (1710). The Statute of Anne, in turn, took its 14 year term from the earlier Statute of Monopolies (1624), which prohibited monopolies save for “letters patent and grants of privileges” for “new manufactures”—an antecedent to modern day patents.

This fourteen year term was chosen because “it was twice the statutorily prescribed, seven year term of trade apprenticeship.”¹¹Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800, p. 18 (Cambridge Univ. Press 2002). So the law was built explicitly around the learning and mastery of a craft, a foundation inherited by the first US Copyright Act.

Professional Authorship

The late Latin American author Gabriel Garcí­a Márquez once said, “I cannot imagine how anyone could even think of writing a novel without having at least a vague of idea of the 10,000 years of literature that have gone before.”¹²Jonathan Kandell, Gabriel Garcí­a Márquez, Conjurer of Literary Magic, Dies at 87, New York Times (April 17, 2014). Authorship which advances the sciences and arts requires the development and mastery of craft as well as a considerable expenditure of time and effort. History shows that one of copyright’s recognized goals is to furnish the conditions that encourage this.