Two hearings today will look at the current state of the US Copyright Office—one in front of the House Judiciary Committee on the Office’s functions and resources, and a budget hearing by the House Appropriations Legislative Branch Subcommittee looking at the Architect of the Capitol and the Library of Congress (The Copyright Office is a department within the Library of Congress). Besides the registration of copyrights and recordation of copyright transfers and assignments—and be sure to check out the Office’s report on Technical Upgrades to Registration and Recordation released earlier this month—the Copyright Office is more broadly responsible for copyright policy and education. However, it is currently underfunded, understaffed, and faces structural and technological impediments to its mission. The witnesses at the Judiciary Committee hearing will discuss the challenges under the status quo in more detail and offer suggestions for improvement, ranging from increasing the resources and autonomy of the Office to establishing the Copyright Office as an independent agency.

The Copyright Office has evolved tremendously since it was first created 118 years ago, and I think it’s commendable that its role and status, along with its functions and resources, are being fully examined.

Centralizing Copyright

When the delegates of the Constitutional Convention in 1787 drafted the plan for a federal government, they forewent a legislature with general, indefinite powers, such as the States enjoyed, for one that had authority only according to an enumerated list of under 20 powers. One of these powers was securing the property rights of authors at the federal level because, as James Madison would explain in the Federalist Papers, “the States cannot separately make effectual provisions for” this protection. 1Federalist 43.

For nearly a century afterward, Congress played a relatively hands-off role in copyright policy. It occasionally held hearings and amended the copyright laws, but otherwise remained passive. Copyright law did require registration, but this function was administered by federal district courts.

Copyright registration certificate for Walt Whitman's "Leaves of Grass."

Copyright registration certificate for Walt Whitman, “Leaves of Grass”, 1855.

That began to change in 1870, when Congress centralized copyright registration and deposit functions within the Library of Congress. 2Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16. Then Librarian Ainsworth Spofford was a staunch advocate of using copyright deposit as a means of building the Library’s collections; he lobbied heavily for bringing copyright functions entirely within the Library’s purview, saying,

Under the present system, although this National Library is entitled by law to a copy of every work for which a copyright is taken out, it does not receive, in point of fact, more than four-fifths of such publications.

The transfer of the Copyright business proposed would concentrate and simplify the business, and this is a cardinal point…. Let the whole business… be placed in the charge of one single responsible officer, and an infinitude of expense, trouble, and insecurity would be saved to the proprietors of Copyrights and to the legal profession. 3John Y. Cole, Of Copyright, Men & a National Library, The Quarterly Journal of the Library of Congress, Vol. 28, April 1971. See also A Visit to the Library of Congress.

But Spofford underestimated the amount of work that would go into administering copyright registrations. Before the end of the century, Congress created (through an appropriations bill) a Copyright Office as a separate agency within the Library, headed by a Register of Copyrights. 4Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.

The Copyright Office Grows

The Copyright Office’s importance quickly grew. The first Register, Thorvald Solberg, proved ambitious, and established the Office as a legislative and policy expert, writing recommendations and drafting legislative proposals that would eventually become the Copyright Act of 1909. 5Abe Goldman, The History of USA Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1, pp. 1-3 (1955). Thorvald Solberg recommendation for copyright law revision.

The Office played an even more critical role during the 1955-1976 copyright law revision effort in producing the current Copyright Act. As Bob Brauneis explains in his testimony, the legislative process

began with a series of 34 studies prepared by the Copyright Office over a five-year period addressing every corner of copyright law and of the economics of the copyright industries. Building on the insights of those studies, Register of Copyrights Abraham Kaminstein prepared in 1961 a comprehensive “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.” Register Kaminstein then held a series of public meetings with copyright stakeholders to discuss the recommendations of that report, and gathered written comments as well. Having gathered that input, the Copyright Office then issued a “Preliminary Draft for Revised U.S. Copyright Law” in late 1962, and in 1963 held a series of public meetings discussing sections of that draft in detail. That led to the first bill introduced in Congress in 1964, which was used as the basis for another series of public meetings held by the Copyright Office. Finally, after a second bill was introduced in 1965, Congress itself began to hold hearings on the proposed legislation.

Since the Copyright Act of 1976, the Copyright Office has played a central role in copyright law and policy: advising Congress and the Executive Branch; providing guidance to courts, copyright practitioners, and the general public; and administering copyright registrations, recordations, and deposits. It has also taken on new substantive roles, such as recommending exceptions for the circumvention of technical measures under 17 USC § 1201. And copyright policy has increasingly been addressed at an international level in venues such as WIPO and the WTO, expanding the scope of the Copyright Office’s work.

A Look at the Copyright Office

In recent decades, there have been a number of looks at the structure of the Copyright Office and administration of the copyright system. (Although it’s worth noting that Benjamin Kaplan suggested a regulatory commission with power to “adapt the statute to changing realities” when “congressional responses are apt to be late or inadequate” in his 1967 work, An Unhurried View of Copyright.)

In 1986, the Congressional Office of Technical Assessment (OTA) released a report on “Intellectual Property in an Age of Electronics and Information,” which sought to examine “the impact of recent and anticipated advances in communication and information technologies on the intellectual property system.” Among the report’s recommendations were institutional changes, ranging from intermediate changes—increasing research, coordination, regulatory, or adjudicatory functions of existing agencies, for example—to the creation of a new intellectual property agency. A joint Congressional committee held a hearing on the report on April 16, 1986, but no further legislative action resulted.

On February 16, 1993, Rep. William Hughes introduced H.R.897, the Copyright Reform Act of 1993. Among other things, the proposed bill would have made the Register of Copyrights a Presidential Appointee. This would have allowed the Register to make rules rather than requiring rules to be adopted by the Library of Congress. The Librarian of Congress, James Billington (who still serves in that capacity), opposed this move. He said in Congressional testimony,

At a time when publishing and communication are experiencing technological breakthroughs, it is particularly critical that the interests of the Library, the Copyright Office, and their constituents, be treated as mutual and complementary. The Library must be able to work hand in hand with the Copyright Office to ensure the continued collection, preservation, and protection of published and unpublished materials, including the new electronic information media that are making an increasingly important contribution to the nation’s intellectual heritage. 6Statement of James Billington, Hearings on H.R. 897: Copyright Reform Act of 1993, pg. 191, before the House Judiciary Comm. Subcomm. on Intellectual Property and Judicial Administration, 103rd Congress (March 4, 1993).

Hughes encouraged Billington to study further the effects his bill would have on the Library’s functions, and in response, Billington created an Advisory Committee on Copyright Registration and Deposit (ACCORD) to analyze these issues. Although the 20 member Committee (which included current Register of Copyrights Maria Pallante, then serving as Executive Director of the National Writers Union) did not examine the institutional changes contained within the Copyright Reform Act, it did look at registration and deposit issues.

The report of the ACCORD co-chairs presciently observed

As the communications revolution gathers momentum and the information superhighway is in its early stages, a comprehensive and reliable copyright database, available freely to the general public, is an enormous asset for a number of purposes. These matters were addressed during the ACCORD deliberations and by the individual authors of the working papers prepared for ACCORD discussions. There was consensus among ACCORD members that information obtained through registration-information bearing on authorship/dates of creation and publication, the ownership and duration of copyright, and the like can be extremely valuable not only for business transactions such as transferring rights, and obtaining permissions or licenses, but also for resolving legal disputes, providing biographical information, and so forth.

The Senate subsequently held a hearing on its companion bill, but while the legislation passed the House, it did not go any further. The issues raised by the report, however, did not disappear.

In 1996, Senator Orrin Hatch introduced an omnibus patent act which would have established a single government corporation to formulate policy and administer all forms of intellectual property: patent, trademark, and copyright. During a hearing on the bill, Hatch explained the motivation behind the change. First, he said, “The locus of copyright policymaking has shifted to the executive branch primarily because the international dimension of copyright has become dominant,” so the Copyright Office needs to be in the executive branch if it is to continue to play a leading role in policymaking. Second, Hatch noted the potential for increased rulemaking authority for the Copyright Office in the digital age—”For example, it has been suggested that the Copyright Office might administer a system of virtual magistrates for fair use and Internet access provider liability.” Increased executive powers, said Hatch, would cause problems given the Office’s current “anomalous position in the legislative branch.” Finally, Hatch said, the shift would “free the Copyright Office from the lengthy and cumbersome hiring practices of the Library of Congress.”

Register of Copyrights Marybeth Peters sharply criticized the proposal during her testimony, calling it “hasty and radical” and spoke on a number of issues such a change would raise. The move “first and foremost” would require a “fivefold increase” in registration fees, leading, consequently, to a decrease in registrations and Library of Congress deposits. Second, the move has “the potential to politicize copyright policy.” Under the Library of Congress, said Peters, the Copyright Office is not “influenced by political agendas or subject to interagency clearance.” Third, the combination of copyright with patent and trademark raises “conceptual concerns” because of fundamental differences between the two. Copyright has strong cultural, educational, and expressive policies not present in patent and trademark, and “These values may be slighted if copyright policy is wholly determined by an entity dedicated to the furtherance of commerce.”

Peters concluded by raising questions concerning the need for change and potential consequences, and said

Answering all of these questions requires consultation with the affected communities to determine their needs and to weigh their perspectives. That process has not taken place. There has been no open, public debate of the issues involved. Neither the Copyright Office nor members of the private sector participated in formulating these proposals. No representative of the author, copyright owner, or copyright user communities were given the opportunity to testify today and no further hearings are scheduled.

William Patry testified in support of the bill on a following panel, calling the current placement of the Copyright Office in the legislative branch a “historic anomaly” and arguing that if the agency is to engage in executive functions, it should reside in the executive branch. But overwhelmingly the sentiment from participants in the hearing was against the move. Statements from other copyright groups almost universally agreed with Peters’ assessment. The bill did not make it out of committee nor reemerge during later Congressional sessions.

A New Great Copyright Agency?

The challenges facing the Copyright Office only continue to grow as technology advances and copyright policy becomes more central to society. As I noted in 2015 in Copyright Law and Policy, Register Pallante has said “Evolving the Copyright Office should be a major goal of the next great copyright act.” She elaborated on the staffing, funding, and technological challenges of the Office in a 2013 lecture and a 2014 House IP Subcommittee oversight hearing.

The House Judiciary Committee hearing today will focus not only on those challenges but also look at potential solutions. These include increasing the Copyright Office’s administrative authority, shifting it to the Department of Commerce, or creating a freestanding, independent agency outside the Library of Congress. Though there is no clear consensus yet on which avenue to take, the witnesses are in remarkable agreement about the critical role the Office plays, the need to modernize it, and the deficiencies in the status quo. The benefits of modernizing the Office would be shared by authors, users, and the general public. That means that Congress is presented with a rare opportunity to take a bold step in improving the law that would not likely be divisive—something presently rare in the world of copyright.

References   [ + ]

1. Federalist 43.
2. Act of July 8, 1870, §§85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16.
3. John Y. Cole, Of Copyright, Men & a National Library, The Quarterly Journal of the Library of Congress, Vol. 28, April 1971. See also A Visit to the Library of Congress.
4. Act of February 19, 1897, 54th Cong., 2d Sess., 29 Stat. 545.
5. Abe Goldman, The History of USA Copyright Law Revision from 1901 to 1954, Copyright Law Revision Study No. 1, pp. 1-3 (1955).
6. Statement of James Billington, Hearings on H.R. 897: Copyright Reform Act of 1993, pg. 191, before the House Judiciary Comm. Subcomm. on Intellectual Property and Judicial Administration, 103rd Congress (March 4, 1993).

In a recent article in Newsweek, cultural historian Peter Baldwin (who recently published The Copyright Wars: Three Centuries of Trans-Atlantic Battle, reviewed by Robert Levine at Columbia Journalism Review), says of early US copyright law, “More important, it refused to grant foreign authors protection. *** Convinced that a fledgling nation, eagerly building its cultural infrastructure, would be best served by having the Old World’s heritage freely on tap, America’s founders not only shamelessly pirated European culture, but also proudly hailed their pilfering as pursuit of the Enlightenment ideal of an educated democratic citizenry.”

Given that this is an excerpt published in a magazine, I can’t see what sources Baldwin relies on to make these claims, but having studied a bit of copyright history myself, this strikes me as inaccurate on a number of levels. First, to point out that the first copyright act did not grant foreign authors protection makes the fact sound remarkable when it was anything but. This was generally the case with most laws at the time. And to say the US “refused” to grant protection to foreign authors makes it sound like a far more deliberate and deliberated choice than it actually was. There is no recorded debate about the substance of any provisions of the first copyright act—the bill itself was essentially the same as England’s Statute of Anne and the state copyright acts that preceded the Constitution. 1Oren Bracha, Commentary on the U.S. Copyright Act 1790 (2008). Indeed, the only deliberate choice seems to have been the decision to pass separate copyright and patent bills; initial proposals had the two combined. This was done at the urging of South Carolina representative Aedanus Burke, who told his fellow Congressmen, “several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed.” 2Gales & Seaton’s History, pp. 1117-18 (January 25, 1790). Burke thought a separate copyright bill could be passed easily, saying “a short bill would be sufficient for the purpose, because it is almost as easy to ascertain literary as any other kind of property.” Patent legislation, on the other hand, “would occasion a good deal of discussion.” A bill sped through the House and Senate and was signed into law by President Washington a mere four months after Burke’s remarks.

Second, while some at the time may have “proudly hailed their pilfering,” this was far from a universally shared belief. In the century following the first US copyright act, you can find numerous examples of Americans calling for recognition of copyright beyond national borders, and serious legislative efforts to remedy this defect began as early as the 1830s. One of the earliest was a result of an 1837 petition of British Authors to a US Senate Committee seeking protection of their property in the United States. And while, yes, one Senator (James Buchanan from Pennsylvania, who, coincidentally, would go on to become one of the worst Presidents in US history) talked about the importance of focusing on “the interest of the reading people of the United States”, and how “cheap editions of foreign works” brought them “within the reach of every individual,” 3Senator Buchanan’s remarks also included an early version of the “piracy is great exposure” claim, saying, “But to live in fame was as great a stimulus to authors as pecuniary gain; and the question ought to be considered, whether they would not lose as much of fame by the measure asked for, as they would gain in money.” there was more discussion about the detriments of a lack of protection. 4Gales & Seaton’s Register of Debates in Congress, 24th Congress, 2nd Session, 670-71 (Feb. 2, 1837).

Kentucky Senator Henry Clay, who presented the petition to the Senate, said, “Of all classes of our fellow-beings, there is none that has a better right than that of authors and inventors, to the kindness, the sympathy, and the protection of the Government. And surely nothing could be more reasonable than that they should be allowed to enjoy, without interruption, for a limited time, the property created by their own genius.” Clay concluded his remarks by saying, “Indeed, I do not see any ground of just objection, either in the constitution or in sound policy, to the passage of a law tendering to all foreign nations reciprocal security for literary property.” South Carolina Senator William Preston observed that “there was a large and meritorious class of authors in this country, who had a direct interest in securing to the authors of Great Britain the copy-right to their works, because copies of these works were sold without the expense of a copyright, and thus came in free and injurious competition with the works of American authors.”

In the years following, several groups of American authors added their voices in support of international copyright protection. On February 4, 1837, thirty US citizens (including telegraph inventor Samuel Morse) submitted a petition “Praying an alteration of the Law regulating Copyrights.” The petitioners wrote that “they believe native writers to be as indispensable as a native militia” and echoed Preston’s remarks that “our own authors are unable to contend with foreigners who are paid elsewhere.” They concluded by calling for international copyright protection to, among other goals, secure the public “against a discouraging monopoly.” A second petition was submitted by “a number of citizens of Boston” April 24, 1838 and signed by 130 individuals. The petition urged passage of an international copyright law, asserting it was “essential to the encouragement and development of American literature.”

These efforts were unsuccessful, as were other pushes for international copyright law in the 1850s and 1860s. 5William Patry, Copyright Law and Practice (1994). But the motivation persisted. The following is an excerpt from Brander Matthews‘ 1890 article, The Evolution of Copyright, that demonstrates the pragmatic nature of this development as well as calls for further improvement.

In the beginning the sovereign who granted a privilege or at his caprice withheld it, could not, however strong his good will, protect his subject’s book beyond the borders of his realm; and even when privilege broadened into copyright, a book duly registered was protected only within the state wherein the certificate was taken out. Very soon after Venice accorded the first privilege to John of Spira, the extension of the protection to the limits of a single state only was found to be a great disadvantage. Printing was invented when central Europe was divided and subdivided into countless little states almost independent, but nominally bound together in the Holy Roman Empire. What is now the Kingdom of Italy was cut up into more than a score of separate states, each with its own laws and its own executive. What is now the German Empire was then a disconnected medley of electorates, margravates, duchies and grand-duchies, bishoprics and principalities, free towns and knight-fees, with no centre, no head and no unity of thought or of feeling or of action. The printer-publisher made an obvious effort for wider protection when he begged and obtained a privilege not only from the authorities of the state in which he was working but also from other sovereigns. Thus when the Florentine edition of the Pandects was issued in 1553, the publisher secured privileges in Florence first, and also in Spain, in the Two Sicilies and in France. But privileges of this sort granted to non-residents were very infrequent, and no really efficacious protection for the books printed in another state was practically attainable in this way. Such protection indeed was wholly contrary to the spirit of the times, which held that an alien had no rights. In France, for example, a ship wrecked on the coasts was seized by the feudal lord and retained as his, subject only to the salvage claim. In England a wreck belonged to the King unless a living being (man, dog or cat) escaped alive from it ; and this claim of the crown to all the property of the unfortunate foreign owner of the lost ship was raised as late as 1771, when Lord Mansfield decided against it. When aliens were thus rudely robbed of their tangible possessions, without public protest, there was little likely to be felt any sense of wrong at the appropriation of a possession so intangible as copyright.

What was needed was, first of all, an amelioration of the feeling toward aliens as such ; and second, such a federation of the petty states as would make a single copyright effective throughout a nation, and as would also make possible an international agreement for the reciprocal protection of literary property. Only within the past hundred years or so has this consolidation into compact and homogeneous nationalities taken place.

***

The United States of America is now the only one of the great powers of the world which absolutely refuses the protection of its laws to the books of a friendly alien. From having been one of the foremost states of the world in the evolution of copyright, the United States has now become one of the most backward.

A year after this article was published, the US passed the International Copyright Act, which for the first time conditionally extended copyright protection to foreign authors.

References   [ + ]

1. Oren Bracha, Commentary on the U.S. Copyright Act 1790 (2008).
2. Gales & Seaton’s History, pp. 1117-18 (January 25, 1790).
3. Senator Buchanan’s remarks also included an early version of the “piracy is great exposure” claim, saying, “But to live in fame was as great a stimulus to authors as pecuniary gain; and the question ought to be considered, whether they would not lose as much of fame by the measure asked for, as they would gain in money.”
4. Gales & Seaton’s Register of Debates in Congress, 24th Congress, 2nd Session, 670-71 (Feb. 2, 1837).
5. William Patry, Copyright Law and Practice (1994).

Biscuit the Democat, by Eric Hart. Posted with permission.

It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.

Thomas Paine, 1792.

Tom W. Bell, a professor at Chapman University’s Fowler School of Law and an adjunct fellow of the Cato Institute, has a new book out from the Mercatus Center, Intellectual Privilege: Copyright, Common Law, and the Common Good. As its title suggests, Bell argues in favor of viewing copyright as a privilege rather than as property or as a right. At the same time, Bell argues that copyright has diverged from what the Constitutional Framers intended and should be reconfigured to address this divergence.

How accurate is this framing? One particularly compelling piece of evidence comes prior to the drafting and ratification of the Constitution, which created a federal legislature with the power, among others, to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Continental Congress appointed a committee “to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works” on March 10th, 1783. This committee consisted of North Carolina representative Hugh Williamson, South Carolina representative Ralph Izard, and Viriginia representative James Madison, who would be the primary architect of the Constitution’s Copyright Clause.

Motion of Hugh Williamson

On May 2, the men presented the following to the Congress:

The committee, consisting of Mr. Williamson, Mr. Izard and Mr. Madison, to whom were referred sundry papers and memorials from different persons on the subject of literary property, being persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce, beg leave to submit the following report:

Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their heir or assigns executors, administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their heirs or assigns executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing and vending the same, to be secured to the original authors, or publishers, or their assigns their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper.

If you take a look at the original report, you’ll notice something interesting. The committee had originally referred, in the last sentence, to the exclusive privilege of printing, but crossed out privilege and substituted right.

Report

It’s a fascinating historical tidbit, and one that suggests the case that the Framers considered copyright to be some sort of government privilege is not as strong as Bell claims.

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s. 1See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839).

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.

References   [ + ]

1. See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839).

“[W]ithout question, the exercise of the [copyright] power has operated as an encouragement to native genius, and to the solid advancement of literature and the arts.” 1Joseph Story, Commentaries on the Constitution of the United States, Book 3, Chapter 19 (1833).

September 17 marks “Constitution Day” in the United States, a day that commemorates the approval of the final draft of the Constitution by the U.S. Constitutional Convention delegates in 1787. 236 U.S.C. § 106. Copyright is the subject of one of Congress’s few enumerated powers; Clause 8 of Section 8 of Article 1 says that  “The Congress shall have power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The story of how the United States became only the second nation in history to recognize a modern day version of copyright is one of authors and ideals. There was no publishing industry to speak of in Colonial America. What few printers did exist in the thirteen original states by the time of the Revolution focused mostly on government printing or newspapers. Horace Scudder, a 19th century biographer of Noah Webster (more on him later) wrote of the time, “Literature in its finer forms had but slender encouragement. The absence of easy communication, the poverty of the people, the dispersion of the population, gave little chance for bookstores and circulating libraries and private accumulation.” 3Horace Scudder, Noah Webster: American Man of Letters (Boston: 1890).

As in many parts of Europe and Great Britain, exclusive publishing privileges had at times been granted to individuals in the colonies, but these were rare. 4The first was granted to John Usher in 1672 to print and publish the laws of the Massachusetts colony. The first attempt by an author, rather than a publisher, to seek exclusive rights to his work came in 1772 from musician William Billings, though he was ultimately unsuccessful. It was not until after the Revolutionary War that we would see the push for copyright begin in earnest.

Copyright before the Constitution

Thomas Paine, who is best known in U.S. history for his 1776 pamphlet Common Sense, immensely influential in calling for independence from Great Britain, also “counted copyright agitation among his many other revolutionary interests.” 5John William Tebbel, 1 A History of Book Publishing in the United States 138 (1972). In a 1782 pamphlet, Paine used the introduction to call attention to the pirating of works by French writer Abbe Raynal, saying “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.” 6Paine, On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up (1782). Paine added, in a passage that demonstrated that his thoughts on copyright were consistent with the Republican ideals he espoused in his political writings,

The state of literature in America must one day become a subject of legislative consideration. 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.

These sentiments were shared by Noah Webster, who wrote in a letter to Connecticut representative John Canfield, “America must be as independent in literature as in Politics, as famous for arts as for arms.” 7Oren Bracha, Commentary on the Connecticut Copyright Statute 1783, in Primary Sources on Copyright (1450-1900), (2008). citing Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4.

Webster, who would go on to create the dictionary bearing his name, played perhaps the most pivotal role in getting states to recognize copyright. Having recently completed his second book on grammar and spelling for schoolchildren, Webster began efforts to lobby the states for copyright laws, beginning in New Jersey in 1782. Then, on to Connecticut in October of that year (at which time he wrote the letter quoted above), returning in January of 1783 where he learned of the plans to pass a general copyright act.

On January 6, 1783, author and explorer John Ledyard had petitioned the Connecticut General Assembly for copyright protection for his latest work, A Journal of Captain Cook’s Last Voyage to the Pacific Ocean. On January 29, 1783, the General Assembly instead passed a general copyright statute, the first in the colonies.

Titled “An Act for the Encouragement of Literature and Genius”, the statute’s preamble indicated its foundations in natural rights and its goals to encourage publication, which was seen as providing a benefit to the public and the nation.

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.

The statute also provided a public interest requirement that authors and publishers provide sufficient copies of books at reasonable prices.

Along with Ledyard and Webster, others were striving for a copyright act, including historian Jeremy Belknap and author and politician Joel Barlow. Barlow wrote to Elias Boudinot, president of the Continental Congress in 1783, calling on him to protect the rights of authors. Barlow’s letter would end up playing an influential role in the foundations of U.S. copyright law. It both pressed the issue forward and established its starting points. Barlow’s exhortation for protecting the natural rights of authors would be reflected in the Continental Congress’s and State’s language to follow, and his suggestion to follow the Statute of Anne was also heeded.

In it, Barlow also echoed the appeals to pride in the new nation that Paine and Webster used. Said Barlow,

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.

According to Continental Congress records, the Connecticut Act was forwarded to the Continental Congress two days after it was proposed, on January 8th, followed another two days later by Barlow’s letter. 824 Journals of the Continental Congress 211 (1783).

Continental Congress representative Hugh Williamson of North Carolina moved that a committee be formed “to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works.” That motion carried on March 10th, with the Congress appointing a committee consisting of Williamson, Ralph Izard of South Carolina, and James Madison.

On May 2, the committee issued its report. Records indicate the committee “to whom were referred sundry papers and memorials from different persons on the subject of literary property, [are] persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.” 924 Journals of the Continental Congress 326. The Continental Congress issued a recommendation encouraging States to pass copyright legislation. By that time, Massachusetts and Maryland had already joined Connecticut in passing a general copyright law. It is likely that Noah Webster shared some responsibility for the the Massachusetts law, as he had been in that state, along with New York, that winter to lobby the representatives.

The Massachusetts copyright act began with a preamble explaining the foundations and motivations for the law:

Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.

After the Continental Congress’s recommendation, Webster redoubled his efforts, visiting the “middle and southern states” in May 1785. That November, Webster visited General Washington, who gave him letters addressed to members of the Virginia legislature to assist Webster in his efforts. Webster also lobbied James Madison personally to pass a copyright act, including through a letter to the Virginiana legislator in 1784. Madison would eventually write the act himself. The bill, “An act for securing to the authors of literary works an exclusive property therein for a limited time,” was presented to the Virginia House of Delegates by Madison on November 16, 1785.

Webster’s successful run fell short, however, when he reached Delaware. He petitioned the legislature, saying

Among all modes of acquiring property, or exclusive ownership, the act or  operation of creating or making seems to have the first claim. If anything can justly give a man an exclusive right to the occupancy and enjoyment of a thing it must be that he made it. The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce is never questioned. What, then, can make a difference between the produce of muscular strength and the produce of the intellect?

But while a committee was formed to draft a copyright bill, the bill was deferred at the end of the legislative session, never to resume. All in all though, not too bad. Following the Continental Congress’s recommendation, twelve of the thirteen original states — all but Delaware — had enacted copyright legislation within three years. And over half, like Massachusetts, referred explicitly to the natural rights foundation of the law. 10The others included Connecticut, Georgia, New Hampshire, North Carolina, New York, and Rhode Island.

Toward a Federal Copyright Power

Within a year of the last state copyright act going into effect (That honor goes to New York, which passed a copyright act on April 29th, 1786) there were calls to amend the Articles of Confederation that governed the Continental Congress. Once this Convention assembled however, in May 1787, delegates agreed that the goal was not amendment but drafting of an entirely new Constitution. From that point, the delegates moved quickly:

The Convention kicked off May 14, 1787. On June 23, a Committee on Detail was established to draft a document that incorporated the various plans and proposals from the Convention. The Committee presented the first draft of the Constitution to the Convention on August 6. On September 8, a Committee on Style was created to incorporate changes brought up by delegates after discussing the first draft and revise the text of the Constitution. This Committee presented the final draft to the Convention on September 12, who ratified and signed it on September 17. And that’s how you make an America. 11Copyright and the Constitution (September 12, 2010).

James Madison played a pivotal role in drafting the Constitution. In the April before the Convention, he sat down to write a memorandum to the chairman of the Convention detailing a dozen Vices of the Political System of the United States. Among these vices was a “want of concert in matters where common interest requires it.” Madison wrote that this defect was most noticeable concerning commercial affairs, but it was also felt in “the want of uniformity in the laws concerning naturalization & literary property.”

Considering the enormity of the issues facing the delegates, it should not be surprising that copyright was not a high priority. It was not included in the first draft of the Constitution, on August 6, and would not be proposed until the waning days of the Convention. 12Some suggest that South Carolina delegate Charles Pinckney included authority to secure copyrights in the Plan he submitted on May 28th, which would move the genesis of the clause a few months earlier. However, at least one scholar has concluded that the evidence does not support this. See Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009).

On August 18, James Madison and Charles Pinckney proposed a number of enumerated powers to vest in the legislative branch of the federal government. Among these, Madison proposed that Congress have the power “to secure to literary authors their copyrights for a limited time” while Pinckney proposed the similar power “to secure to authors exclusive rights for a certain time.” All were referred to the Convention’s Committee on Detail without discussion. 132 The Records of the Federal Convention of 1787, at 321–22, 324–35. The final version of the Copyright Clause (which also incorporated a authority to secure patents) was presented to the Convention on September 5, where it was agreed to without any objections. 14Id. at 509. There is no evidence that the change in wording between the proposed powers and the final version was intended to be substantive rather than merely stylistic.

The Copyright Clause in the Court of Public Opinion

After September 17, the newly drafted Constitution went to the Continental Congress for approval on September 28, and then referred to the states to be ratified. Reflecting the low amount of attention the power received during the Convention, there were few mentions of the power during ratification debates.

James Madison did refer to the Clause in the Federalist Papers, written along with John Jay and Alexander Hamilton to drum up support for ratifying the Constitution, but only once, and only very briefly. In Federalist Papers 43, Madison wrote

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

George Mason, a delegate to the Continental Convention from Virginia became one of the Constitution’s most strenuous critics, and penned a series of Objections explaining his reasons for not signing the final draft. Among these, he warned that “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.” 15Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787). Mason was referring to the Necessary and Proper Clause. But this and his other objections drew a response from North Carolina’s James Iredell, a strong supporter of the Constitution and future Supreme Court Justice. Iredell explained that the Necessary and Proper Clause was not an independent grant of authority; it could only be exercised in conjunction with authority that the Constitution expressly granted Congress. Iredell then went on to confirm that none of Mason’s specific dangers could come to fruition through Congress’s delegated powers. When he looked at the possibility that “Congress may grant monopolies in trade and commerce,” Iredell remarked in a footnote

One of the powers given to Congress is, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius. 16Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863).

At another point in his answer to Mason’s objections, Iredell noted that Congress could not infringe the freedom of speech and press through the Copyright Clause:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand-besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared. 17Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361. Alexander Hamilton implicitly made a similar argument regarding the liberty of the press and the copyright clause in the Federalist Papers number 84, when he wrote, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

We see the Clause come up during the Pennsylvania ratification debates as well, where it was mentioned by influential politician Thomas McKean, who was addressing possible objections to the Constitution. He noted none regarding the clause, pointing out instead the need for national uniformity in protecting authors.

[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. 18Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.

The Constitution would eventually be ratified by the States, and it went into effect on March 4, 1789. The first Congress exercised its authority under the Copyright Clause not too long after, with George Washington signing into law the first U.S. copyright act on May 31, 1790.

References   [ + ]

1. Joseph Story, Commentaries on the Constitution of the United States, Book 3, Chapter 19 (1833).
2. 36 U.S.C. § 106.
3. Horace Scudder, Noah Webster: American Man of Letters (Boston: 1890).
4. The first was granted to John Usher in 1672 to print and publish the laws of the Massachusetts colony. The first attempt by an author, rather than a publisher, to seek exclusive rights to his work came in 1772 from musician William Billings, though he was ultimately unsuccessful.
5. John William Tebbel, 1 A History of Book Publishing in the United States 138 (1972).
6. Paine, On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up (1782).
7. Oren Bracha, Commentary on the Connecticut Copyright Statute 1783, in Primary Sources on Copyright (1450-1900), (2008). citing Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4.
8. 24 Journals of the Continental Congress 211 (1783).
9. 24 Journals of the Continental Congress 326.
10. The others included Connecticut, Georgia, New Hampshire, North Carolina, New York, and Rhode Island.
11. Copyright and the Constitution (September 12, 2010).
12. Some suggest that South Carolina delegate Charles Pinckney included authority to secure copyrights in the Plan he submitted on May 28th, which would move the genesis of the clause a few months earlier. However, at least one scholar has concluded that the evidence does not support this. See Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009).
13. 2 The Records of the Federal Convention of 1787, at 321–22, 324–35.
14. Id. at 509.
15. Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787).
16. Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863).
17. Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361. Alexander Hamilton implicitly made a similar argument regarding the liberty of the press and the copyright clause in the Federalist Papers number 84, when he wrote, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
18. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution.

Yesterday, the Electronic Frontier Foundation provided a “reality check” of recent comments by MPAA CEO Chris Dodd regarding the current review of copyright law in the U.S. In a blog post titled Looking Deeper into MPAA’s Copyright Agenda, the organization writes the following:

Don’t Be So Sure You’ve Got The Founders On Your Side

Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium.  The Founders’ copyrights lasted 14 years, with an option to renew for another 14.  Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years.  We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.  By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.

But as is true with much the organization says, the EFF’s “reality check” falls far short of reality — specifically concerning the subject matter covered by the 1790 Copyright Act.

It’s true the statute only refers to “books,” but the term was far broader. It included even a single page. 1Robert Maugham, A Treatise on the Laws of Literary Property, pg. 74 (London 1828). Certainly pamphlets and newspapers were covered by the Act, though publishers of such rarely secured copyright protection, likely because the onerous registration requirements of the Act far outweighed the ephemeral quality of such publications. 2Meredith L. McGill, “Copyright“, in An Extensive Republic: Print, Culture, and Society in the New Nation, 1790-1840, pg. 199 (2010); note, too, that six of the thirteen original States explicitly included “pamphlets” within their colonial copyright statutes.

English courts have held musical compositions to fall within the Statute of Anne (which, serving as the inspiration for the US Copyright Act, also referred to “books”) since 1777. 3Bach v. Longman, 2 Cowp. 623 (1777). In the same manner, the 1790 U.S. Act likely included music in printed form — indeed, US composers began to register musical works not too long after the statute went into effect. 4Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pg. 4 (ABA Publishing 2012) (early works registered include The Rural Harmony, Being an Original Composition, in Three and Four Parts in 1793 and The Kentucky Volunteer, a New Song in 1794.

Theatrical performances weren’t protected under the 1790 Act, but, as with musical compositions, written plays were protected as books. Again, the earliest copyright registration for theatrical works began within a decade of the Act. 5See, for example, John Burk, Bunker-Hill, “Copy-Right Secured According to Law [1797]. (Theatre took a while to rebuild during this period in large part because the Continental Congress had banned it during the Revolutionary War.) 6Allison Sarah Finkelstein, “Unhappy Differences”: The American Revolution and the Disruption of the Course of Theatre in Virginia (April 23, 2008) (unpublished B.A. thesis, College of William & Mary).

The EFF is technically correct that the 1790 Act didn’t include many visual works that are protected today, but if we are looking more generally at what the Founders thought of copyright, than even this point does not hold true. The Supreme Court would hold in 1884 that photographs were susceptible to copyright protection under the 1802 Copyright Act, and specifically pointed out that this act was enacted by “men who were contemporary with its formation, many of whom were members of the convention which framed it.” 7Burrow-Giles Lithographic v. Sarony, 111 US 53 (1884). And the Court was correct; the bill was drafted by Sen. Stephen Bradley, a colonel in the Revolutionary War and a politician active in Vermont starting before the ratification of the United States, and signed into law by President Thomas Jefferson — the same Thomas Jefferson who apparently would’ve been shocked that today’s copyright covered visual works (the bill also, concidentally, doubled the statutory damages available to copyright owners). 8William Patry, “Statutory Revision“, Copyright Law and Practice, n.108 (2000). In addition, though motion pictures were not explicitly included as copyrightable subject matter in the Copyright Act until 1912, 9Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488. early film producers such as Thomas Edison began registering films as still photographs in the early 1890’s, a practice upheld in court. 10Edison v. Lubin, 122 F. 240 (1903).

It is true that sculptural works were not brought within the scope of copyright law until 1870 (though limited protection under design patent provisions were available beginning in 1842). 11See Mazer v. Stein, 347 US 201 (1954). But copyright for sculptures is not exactly a hot button issue these days.

It’s also true that, unlike under the 1790 Act, nearly all written expression is covered under copyright law today. However, such expression was, so long as it remained unpublished, protected under common law copyright. And, unlike today, common law copyright was perpetual and not subject to traditional defenses such as fair use or first sale. 12See Did the 1976 Copyright Act Lessen the Orphan Works Problem?

What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright; 13One would recall that one of the early seminal cases in U.S. copyright law, Wheaton v. Peters, 33 US 591 (1834), involved the copying of Supreme Court opinions. no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.

The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders. Most Founders shared a philosophy that emphasized the primacy of private property — not just as a mechanism for prosperity but also as an essential component of a free society. 14“Property must be secured or liberty cannot exist.” John Adams, Discourses on Davila, No. 13 (1790); “Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free without being secure in our property; (3) that we cannot be secure in our property if without our consent others may as by right take it away.” John Dickinson, Letters from a farmer in Pennsylvania to the inhabitants of the British Colonies, Letter xii (1767). Copyright (or literary property) was explicitly seen as a form of property by these same Founders. 15See, for example, Randolph J. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property, 8 Perspectives from FSF Scholars (2013); Paul Clement, Viet Dinh & Jeffrey Harris, The Constitutional and Historical Foundations of Copyright Protection, Center For Individual Freedom (2012); Myths from the Birth of US Copyright; Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006). Early US copyright law is not some ideal we should gaze at with nostalgia. It had long been considered inadequate to achieve its goals of advancing the public interest and has only in recent decades evolved to provide meaningful rights to the creators that drive progress and innovation.

So it is more likely that the Founders would find current copyright law an improvement over the 1790 Act. As Thomas Paine, the Father of the American Revolution, wrote:

The state of literature in America must one day become a subject of legislative consideration. 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. 16A Letter Addressed to the Abbe Raynal (1782).

The EFF is welcome, as it concludes in its post, to write about and promote “real copyright reform.” But it should try to do so without revisionist claims that it has history on its side.

References   [ + ]

1. Robert Maugham, A Treatise on the Laws of Literary Property, pg. 74 (London 1828).
2. Meredith L. McGill, “Copyright“, in An Extensive Republic: Print, Culture, and Society in the New Nation, 1790-1840, pg. 199 (2010); note, too, that six of the thirteen original States explicitly included “pamphlets” within their colonial copyright statutes.
3. Bach v. Longman, 2 Cowp. 623 (1777).
4. Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pg. 4 (ABA Publishing 2012) (early works registered include The Rural Harmony, Being an Original Composition, in Three and Four Parts in 1793 and The Kentucky Volunteer, a New Song in 1794.
5. See, for example, John Burk, Bunker-Hill, “Copy-Right Secured According to Law [1797].
6. Allison Sarah Finkelstein, “Unhappy Differences”: The American Revolution and the Disruption of the Course of Theatre in Virginia (April 23, 2008) (unpublished B.A. thesis, College of William & Mary).
7. Burrow-Giles Lithographic v. Sarony, 111 US 53 (1884).
8. William Patry, “Statutory Revision“, Copyright Law and Practice, n.108 (2000).
9. Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488.
10. Edison v. Lubin, 122 F. 240 (1903).
11. See Mazer v. Stein, 347 US 201 (1954).
12. See Did the 1976 Copyright Act Lessen the Orphan Works Problem?
13. One would recall that one of the early seminal cases in U.S. copyright law, Wheaton v. Peters, 33 US 591 (1834), involved the copying of Supreme Court opinions.
14. “Property must be secured or liberty cannot exist.” John Adams, Discourses on Davila, No. 13 (1790); “Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free without being secure in our property; (3) that we cannot be secure in our property if without our consent others may as by right take it away.” John Dickinson, Letters from a farmer in Pennsylvania to the inhabitants of the British Colonies, Letter xii (1767).
15. See, for example, Randolph J. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property, 8 Perspectives from FSF Scholars (2013); Paul Clement, Viet Dinh & Jeffrey Harris, The Constitutional and Historical Foundations of Copyright Protection, Center For Individual Freedom (2012); Myths from the Birth of US Copyright; Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006).
16. A Letter Addressed to the Abbe Raynal (1782).

Despite the “robust history” of treating copyright as property, 1Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson79 Southern California Law Review 993, 1004 (2006). “property talk” still makes some copyright skeptics nervous.

Most recently, calls for regressive copyright changes have tried to recast copyright protection as more like government regulation than property. In fact, in Copyright Unbalanced: From Incentive to Excess, released last November by the Mercatus Center, law professor Tom Bell appears to argue that this in and of itself is among the necessary changes to copyright law. One of his “Five Reforms for Copyright Law” is to “Reconceive ‘IP’ [‘Intellectual Property’] as ‘Intellectual Privilege‘.” Forget about substance, the problem with copyright is semantics.

But too often, arguments against copyright as property are pushed through on shaky grounds. Recently, legal scholar Adam Mossoff responded to one common claim — one that states that “’traditional property rights in land’ is based in inductive, ground-up ‘common law court decisions,’ but that IP rights are top-down, artificial statutory entitlements.” A complete myth, says Mossoff. Traditional property rights in land were frequently throughout history created and extended through statute rather than common law courts.

I’d like to look at another common claim.

It’s just different

In Copyright Unbalanced, editor Jerry Brito begins his chapter by saying copyright is “a very different kind of property” than “traditional property.” In support of this claim, Brito points to the respective durations of each. As Brito explains, the “copyright clause allows Congress to establish copyrights for ‘limited times’ only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.” 2Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012). Brito is not alone in this argument; copyright skeptics have long made this argument. Lawrence Lessig, for example, perhaps the godfather of copyright skepticism, says in his 2006 book Code that the difference between copyright and what he calls “ordinary property” is recognized in the Constitution’s “limited times” language:

[N]ote the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights… It does not give Congress the power to give them a perpetual “property” in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property.

But is it correct that copyright is fundamentally unlike “traditional” or “ordinary” property (whatever that is) because it has a cut-off date? Setting aside for now the fact that the Copyright Clause in the U.S. Constitution only applies to the United States — while every other country with copyright laws does limit its duration, I’m not aware that this limited duration is a constitutional requirement outside the U.S. Under Brito’s logic, it would apparently be easier to argue that copyright is property in, say, South Korea. 3Or, more interestingly, if, but for 17 U.S.C. § 301, copyright would be considered property in a state but not the federal government. Prior to that section, which went into effect in 1978 and preempts any state laws that provide protections equivalent to those under the U.S. Copyright Act, a dual system of federal and state copyright existed. Goldstein v. California, 412 US 546, 560 (1973).

Or is it?

If we consider property as a relationship between person and thing, than it should be easy to see that all property rights are limited in time. Until scientists discover a cure for death, property is limited in time to the life of its owner. After you die, you don’t own anything anymore; that specific relationship between person and thing is terminated. Who owns your property after you die is settled by — and this is important — positive law.

Because, if we’re talking about common law or natural law, as those who often advance such arguments are especially fond of talking about, the transfer of ownership upon death is far different. Nowadays, in very general terms, when you die, your property is disposed in the following manner: first, according to your will; next, if you have no will, then to your heirs according to the relevant state law; finally, if you have no heirs, then your property escheats to the state.

This is how William Blackstone explained the law in his Commentaries on the Laws of England. Said Blackstone:

The most universal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. 4Book 2, Chapter 1.

The “permanence” of property developed later, through civil law; first, through the right of inheritance, and later through the right to dispose of property through testament. Blackstone is clear: heirs had no natural right to inherit their parents’ property, and property owners had no natural right to “direct the succession of his property after his own decease.” Under natural law, all property lasts for “limited times”, becoming common property (part of the public domain) upon the death of the possessor. It is only through “the positive law of society” that a stable system of inheritance is created.

Blackstone’s Commentaries were hugely influential when they were published, referred to heavily by the drafters of the U.S. Constitution. While the bulk of public mentions of copyright during that time referred to it as property or literary property, I’m not aware of any explicit discussion of the “limited times” language in the Constitution and how it relates to copyright as property from the drafters.

However, there are roughly contemporary accounts of copyright that do recognize that its “limited times” do not take it outside the scope of “property.” In 1831, Congressman Gulian Verplanck delivered an address on literary property following the passing of the Copyright Act of 1831 — the first major general revision to U.S. copyright law. Verplanck argued that copyright was equivalent to other forms of property, how the “right of property in the productions of intellectual labour was as much founded in natural justice as the right of property in the productions of corporeal labour.” Said Verplanck:

Such too was the doctrine of the framers of our own constitution, as I maintained was quite evident from the peculiarity of their language on this point. They had not used any word, which would imply that they thought “to give rights to authors and inventors” but had authorized congress “to promote the progress of science and the useful arts by securing to authors or inventors the exclusive rights to their writings or inventions.” They clearly did not think they were enabling congress to give these rights, but presuming them to exist, they provided for protecting them by a legal remedy. The limitation of the term of legal exclusive enjoyment and protection was indeed the effect of positive law. But this limitation was precisely of the same nature with the terms of prescription of property and limitation of actions in all legal systems, which may be longer or shorter according to views of public policy, the natural and moral rights of property remaining unchanged [Emphasis added]. 5Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833).

Far from representing a fundamental break from “normal” property, the U.S. Constitution’s “limited times” language for copyrights remains consonant with how property has been conceived over centuries.

References   [ + ]

1. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson79 Southern California Law Review 993, 1004 (2006).
2. Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012).
3. Or, more interestingly, if, but for 17 U.S.C. § 301, copyright would be considered property in a state but not the federal government. Prior to that section, which went into effect in 1978 and preempts any state laws that provide protections equivalent to those under the U.S. Copyright Act, a dual system of federal and state copyright existed. Goldstein v. California, 412 US 546, 560 (1973).
4. Book 2, Chapter 1.
5. Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833).

Your Bull has Gored my Ox, The Corsair, NY, June 8, 1839.

… But has an author any actual indefeasible property in his works?

“Certainly not! it is merely a temporary usufruct which the law allows him!”

Such will be the answer of ninety-nine men out of a hundred to whom you put the question. They would have answered so fifty years ago. They will answer the same way fifty years hence, unless they are addressed upon the subject in the only mode to make them think upon it. The rights of authors, as now acknowledged, stand separate and apart from those of other men; and the community never will care a copper for their assertion, till compelled by sympathy of interest to think and act upon the subject. The matter of copyright must be taken from the narrow limits in which the mere lawyer would confine it, and placed upon the broad field where the moralist and the statesman will be forced to study it; it must be made to stand where it belongs—upon the basis by which the cause of PROPERTY is upheld in civilized communities! It must be shown, as it can be shown, that every argument against the author’s right of property in his productions, apply equally to the merchant and the land-holder—apply to all who are defended in their possessions by legal enactments made for the good of society. The moralist, who indignantly kindles at the fanatic dreams of Agrarianism, yet turns a cold and indifferent eye upon the author’s interest in property, must be driven to feel the force of His claim by examining the tenure by which the possessions of other members of the community are held. The statesman, who values the artificial substitute of written statutes for the natural law of the strong, must have his eyes opened to the danger of leaving a large class of those for whom he legislates, undefended in their property, save by the powers which nature may have given them.

The law of copyright, as it stands upon our statute-books, is an anomaly in the structure of society as at present constituted. It is a hybrid monster conceived in the spirit of barbarism, and brought into being amid the most cunning wiles of civilized despotism. Its conception refers to the rude times, when a man’s acknowledged possessions consisted only of those things which he actually produced by manual labor; its existence dates from an age when the aristocratic classes hesitated at no means to keep knowledge from the people, and therefore framed laws whose tendency would be to make writers, as a class, dependent upon themselves.

“Political truths are but slow in making themselves known to the world. Those who write in advance of the opinions of men must wait long for the returns, whether of wealth or glory, from their productions. By cutting off” they argued “an author from prospective benefit from his writings at some remote period, we deter the man of slender means from wasting the prime of his life in a pursuit that must be profitless; but we still leave encouragement for the writer who courts the taste and prejudices of the day, and is willing to become tributary to our patronage.”

It were an easy task to show how effective has been this policy in chaining the most vigorous minds of modern times to the footstool of power—to show how often genius has been perverted from its best and noblest ends, by making it dependent upon the patronage of the opulent few—how, robbed of the just and permanent fruits of his industry, the author has been compelled to snatch at such as were within his reach, by ministering to the caprices, or upholding the privileges of the class to whom he was thus driven to look for his bread. But the day is at hand, thank God, when thinking men will be compelled to look into this matter, and weigh well the expediency of perpetuating such monstrous injustice. The author is no longer in the situation of the court-jester or buffoon, who lives upon the bounty of some wealthy patrician. There are readers enough in every class for him to appeal to in the assertion of his rights, and it is for every man who has an interest at stake in the community, to pause and reflect how far it will be well to shut out an influential portion of his fellow citizens from the shelter of the laws protecting property when honestly acquired.

One of the common historical claims of copyright skeptics is that the Founding Fathers in the US were “suspicious” of copyright and only implemented it with reluctance. The idea could be to argue for sharp reductions in copyright law by appealing to history — as professor Tom Bell said recently in favor of decreasing copyright protections, “If it was good enough for old Ben, Tom, George, etc., it’s good enough for me.” This despite the minimal debate over the Copyright Clause in the Constitution and the subsequent Copyright Act of 1790. The “suspicions” that are often cited do not appear in these debates, nor do they manifest themselves in either of these texts. Instead, the historical record shows a fairly consistent view; when the Founders did discuss copyright, it was seen as both a natural property right of authors that deserved protecting in any enlightened nation.

The heavy lifting for the “suspicious Founding Fathers” argument comes primarily by an exchange of letters between Thomas Jefferson and James Madison discussing the recently drafted Constitution. Jefferson, expressing his thoughts on the document, mentioned briefly its lack of a general prohibition on government granted monopolies. In response, Madison noted toward the end of his letter agreement over the “nuisances” of monopolies, but reminded Jefferson that exceptions should be made for authors and inventors.

While interesting from a historical perspective, these letters shed little light on Jefferson and Madison’s views about the proper scope of copyright (and shed no light on the views of the numerous other Founders). It’s also important to note that Jefferson was apparently in the minority when it came to monopolies; the Bill of Rights as adopted did not include any prohibition on them.

I recently came across a letter by James Madison and sent to Lafayette about Thomas Jefferson,  written several months after Jefferson had died. What’s interesting is how it suggests a different story then the one in the revised history of copyright skeptics.

The Marquis de Lafayette played a pivotal role in the American Revolution and its early years. Madison, Jefferson, and Lafayette knew each other since the earliest days of the US. They not only shared a passion for the republican ideals that fueled the revolutions in the US and France, they also shared a lifelong friendship.

Thomas Jefferson passed away on July 4, 1826, leaving an estate that was deeply in debt. Later that year, Madison wrote Lafayette. After recognizing their mutual sadness at the loss of Jefferson, Madison notes the tremendous financial strain Jefferson’s heirs were facing. He describes a lottery held by the government, which helped ease some but not all of the strain. But Madison shares with Lafayette another cause for hope (emphasis added):

The urgency of particular demands has induced the Executor Thomas Jefferson Randolph, who is the Legatee of the Manuscripts, to undertake an immediate publication of a Memoir, partly biographical, partly political and miscellaneous, left in the handwriting of his Grandfather, the proceeds of which he hopes will be of critical use; and if prompt & extensive opportunities be given for subscriptions, there may be no disappointment. The work will recommend itself not only by personal details interwoven into it, but by Debates in Congress on the question of Independence, and other very important subjects coeval with its Declaration, as the Debates were taken down and preserved by the illustrious member. The memoir will contain also very interesting views of the origin of the French Revolution, and its progress & phenomena, during his Diplomatic residence at Paris, with reflections on its tendencies & consequences. A trial will probably be made to secure the copyright of the publication, both in England and in France. In the latter case your friendly counsel will of course be resorted to and I mention it that you may in the mean time be turning the subject in your thoughts. The manuscripts of which the Memoir makes a part are great in extent, and doubtless rich in matter; and discreet extracts may perhaps prove a further pecuniary resource, from time to time, but how soon and in what degree, I have not the means of judging. Mrs. Randolph with her two youngest children, left Montpellier some days ago, on her way to pass the winter with Mrs. Coolidge. Such a change of scene had become essential to her health as well as to her feelings. She has made up her mind for the worst results; a merit which quickens the sympathy otherwise so intense. She was accompanied by her son, Ths. J. Randolph who will endeavor to make arrangements with the Northern Printers for the volume to be published. It will be an Octavo of about three hundred pages.