Copyhype

“[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 28^th, 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.