Enemies of Monopoly of Brain-product

By , November 12, 2010.

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life. 1Who’s Who, 1907, pt II, pg 433. Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.” 2See the New York Times for an explanation of this saying. Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws. 3According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” 4“Property is theft” — Pierre-Joseph Proudhon. are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes” 5Roughly, “bees make honey not for themselves.” From Virgil. and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright. 6I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne, 7I.e., prior to the Statute of Anne, considered the first modern copyright law. when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS. 8MS. = manuscript. musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.” 9The Copyright Act 1842 extended copyright to musical compositions in England. This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd, 10Thomas Noon Talfourd. and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.

References

References
↑1 Who’s Who, 1907, pt II, pg 433.
↑2 See the New York Times for an explanation of this saying.
↑3 According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.”
↑4 “Property is theft” — Pierre-Joseph Proudhon.
↑5 Roughly, “bees make honey not for themselves.” From Virgil.
↑6 I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.”
↑7 I.e., prior to the Statute of Anne, considered the first modern copyright law.
↑8 MS. = manuscript.
↑9 The Copyright Act 1842 extended copyright to musical compositions in England.
↑10 Thomas Noon Talfourd.

Copyright: Its Law and Literature, by R.R. Bowker

By , October 29, 2010.

The following is an excerpt from Copyright: Its Law and Literature, written by Richard Rogers Bowker. Published in book form in 1886 (it was first published as a series of articles in Publishers’ Weekly the year before), the book was, according to the preface by Bowker, “an attempt to give in brief and simple shape a comprehensive view — such as did not exist, despite an evident need — of the principles, history, and present law of copyright, domestic and international.”

I found the excerpt to be interesting, not only as history, but also because many of the concepts he talks about are still debated today. He explains difficult concepts like the difference between a copyright and a copy, concepts that continue to cause confusion. Arguments that are very much alive today — how can copyright be valid if every work builds on previous works, for example — are addressed. There’s little new in the copyright debates, and Bowker’s telling of the copyright story is a good read.

Bowker was editor of Publisher’s Weekly and Harper’s magazine, as well as a strong proponent of libraries. After his death, the American Library Association included him as one of the 100 most important leaders they had in the 20th century.

Bowker lived during a time when there was a great deal of interest in “international copyright.” Copyright: Its Law and Literature was published the same year the Berne Convention for the Protection of Literary and Artistic Works was completed. Bowker was a strong proponent of international copyright; one of his motivations for writing the book was the hope “that the United States will not long remain almost the only exception among civilized nations in rejecting international copyright.” 1Though the US joined a number of international copyright agreements in the early 20th century, it did not become a party to the Berne Convention until 1989.

Of historical note, the book includes a comprehensive bibliography of books, articles, and legal cases relating to literary property and copyright compiled by a Library of Congress staffer named Thorvald Solberg. Solberg went on to become the first US Register of Copyrights in 1897.

Much of the book was substantially updated and incorporated into Bowker’s later work Copyright: Its History and Its Law, published in 1912. This second work has been widely cited by courts since then, including the Supreme Court, and as recently as EMI April Music v. White in 2009. 2618 F.Supp.2d 497, 503 (E.D. Virginia).

CHAPTER 1: THE NATURE AND ORIGIN OF COPYRIGHT.

COPYRIGHT (from the Latin copia, plenty) means, in general, the right to copy, to make plenty. In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.

There is another legal sense of the word “copyright” much emphasized by several English justices. Through the low Latin use of the word copia, our word “copy” has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the “copy” set in his copy-book, and the modern printer calls for the author’s “copy.” Copyright, accordingly, may also mean the right in copy made (whether the original work or a duplication of it), as well as the right to make copies, which by no means goes with the work or any duplicate of it. Said Lord St. Leonards: “When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work a right to it at composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composition after he has published it to the world, is a totally different thing.” Baron Parks, in the same case, pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of multiplication, which alone has been the subject of special statutory protection.

There is nothing which may more properly be called property than the creation of the individual brain. For property means a man’s very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted), which uses material things only for its record or manifestation. The best proof of own-ership is that, if this individual man or woman had not thought this individual thought, realized in writing or in music or in marble, it would not exist. Or if the individual, thinking it, had put it aside without such record, it would not, in any practical sense, exist. We cannot know what “might have beens” of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity to so materialize their thoughts.

It is sometimes said, as a bar to this idea of property, that no thought is new — that every thinker is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy — aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land Farmer Smith can; but Shakespeare cannot write “Paradise Lost” nor Milton “Much Ado,” though before both Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not because of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria persona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Property in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream.

Property right in unpublished works has never been effectively questioned — a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has “supreme control” over an unpublished work, and his manuscript cannot be utilized by creditors as assets without his consent.” If he lends a copy to another,” says Baron Parks, “his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it he has a right to enforce that undertaking.” The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer’s consent. The theory that by permitting copies to be made, an author dedicates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege.

It is at the moment of publication that the undisputed possessory right passes over into the much-disputed right to multiply copies, and that the vexed question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use — that is, get beneficial results from his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain “an implied undertaking” that the buyer has liberty to use his copy but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one’s property by others without the owner’s consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one’s own property of any kind. The owner of a literary property has, however, no physical means of defence or redress; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and publication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner.

References

References
↑1 Though the US joined a number of international copyright agreements in the early 20th century, it did not become a party to the Berne Convention until 1989.
↑2 618 F.Supp.2d 497, 503 (E.D. Virginia).

Copyright and the Constitution

By , September 17, 2010.

Happy Constitution Day!

Today marks the very date—223 years ago—the US Constitution was ratified. Since 2004, this date has officially been known as Constitution Day, and has been set aside to encourage education about the framework of law that serves as the foundation for US government.1The more cynical among us would say instead that any educational institution receiving federal funds is required to provide educational programming on the Constitution on this day.

US copyright (and patent) law stems from the Constitution. Article 1, Section 8 reads, in part:

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.

To celebrate the occasion, let’s take a look at how this clause made it into the Constitution on September 17, 1787.

Writing the Constitution

We’ll begin with a look at the drafting of the Constitution as a whole. We probably recall from high school the general story of what lead to the drafting of the Constitution.2I apologize, as my retelling of this general story is also primarily based on what I recall from high school (and Wikipedia). The United States of America, having successfully secured independence from England, were operating under the Articles of Confederation. Some founders—including George Washington, Alexander Hamilton, and James Madison – felt the centralized government established by the Articles was inadequate to address the many challenges facing the new nation. In September 1786, delegates from five of the states met to discuss ways to remedy the defects in the federal government, resulting in the recommendation for a broader convention, to be held in Philadelphia the following May. But while the Philadelphia Convention began under the premise of revising the Articles, its purpose quickly became the creation of an entirely new form of government for the thirteen states.

“Quickly” is the operative word for a lot of the work done at the Convention. Looking at the timeline of the Constitution’s drafting, I’m astonished at how fast a group with many diverse interests were able to achieve a result with such a broad purpose. The purpose was not simply to address the mundane concerns of interstate squabbles and foreign trade, but to come as close as possible to an ideal form of republican government. The delegates looked at Greek, Roman, Renaissance, and Enlightenment philosophers as well as the experiences of English government and the thirteen state governments to craft a new framework. The result was, according to historian Forrest McDonald, “a new form of government, unprecedented under the sun. Every previous national authority either had been centralized or else had been a confederation of sovereign states. The new American system was neither one nor the other; it was a mixture of both.” It is also a system that, for all its criticisms, is still chugging away 223 years later.

The Convention kicked off May 14, 1787.3Though due to the difficulties of travelling at the time, a quorom wasn’t present until May 25. 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.

The Copyright Clause

Now that we have a general idea of how the Constitution was drafted for context, let’s see how the copyright clause became a part of the Constitution. The historical record presents some challenges to this task. The Convention was held in secret, and most of our knowledge of its proceedings come from the official Convention journal of secretary William Jackson as well as a private journal kept by Madison. From those sources, we see that the first draft of the Constitution did not include the copyright clause. A number of proposals for additional Congressional powers were made following the first draft. These proposals and other pending issues were referred to a Committee of Eleven, which revised them and submitted final versions to the delegates for approval. Among the recommendations of the Committee was granting to Congress copyright power, a recommendation that was unanimously agreed to by the delegates without debate. The recommendation matched exactly the language in the final draft of the Constitution.

In the discussion above and below, I’m drawing largely on the tremendous work done by law professor Dotan Oliar. Oliar has carefully examined historical records to piece together the story of the Constitution’s copyright clause. I highly recommend his publications Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power and The (Constitutional) Convention on IP: A New Reading for all the details of what I’m summarizing here.

Oliar traces the Committee of Eleven’s proposed copyright clause back to eight separate proposals for additional Congressional powers made by both Madison and South Carolina governor Charles Pinckney on August 18.4Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, pp 1805-10. They proposed that Congress have the power –

  • to secure to inventors of useful machines and implements the benefits thereof for a limited time
  • to grant patents for useful inventions
  • to secure to literary authors their copyrights for a limited time
  • to secure to authors exclusive rights for a certain time
  • to establish a university
  • to establish seminaries for the promotion of literature and the arts and sciences
  • to encourage by proper premiums and provisions the advancement of useful knowledge and discoveries
  • to establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures

At first glance, some of these proposals seem to have little to do with the power that was eventually adopted. However, Oliar convincingly argues that these proposals best explain the clause’s “ends-mean” structure. The “ends” of the clause is the promotion of “the progress of the useful arts and sciences.” The “means” by which this end is achieved is the “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” None of the proposals above combine both the specific end and mean of the final clause. Instead, they form a pool of various ends and means that were considered by the Committee, which rejected some means—universities and premiums, for example – in favor of exclusive rights in writings and discoveries and combined the ends. Because the historical record is largely silent on how the Committee settled on its final language, we cannot know for sure what role these eight proposals played, but Oliar presents a reasonable hypothesis.

Motivation for Including the Clause

Similar to the lack of record regarding the textual origins of the clause, the historical record regarding the motivation for including the clause is scant. Perhaps it was included to reflect the idea that, as Convention delegate James Wilson suggested, the primary objective of government is the “cultivation and improvement of the human mind.” More likely, it reflected what was by then a well-established practice. The laws and traditions of the young United States stemmed primarily from England. English government was in the business of granting copyright since the Statute of Anne in 1710, and many of the individual colonies continued this practice.

The only mention of the clause in the Federalist Papers—a series of articles written by Hamilton, Madison, and John Jay advocating the ratification of the Constitution—comes in Federalist No. 43. There, Madison writes:

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 provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

This suggests that there was little debate over the granting of copyright itself. More important to Madison was the fact that the federal government alone should hold this power, rather than the individual states.

Whatever the origins, this clause in Article 1, Section 8, of the Constitution provides the foundation for all US copyright law today. Debate over its meaning and intent, its scope and its structure, continues today, 223 years after it was written.

References

References
↑1 The more cynical among us would say instead that any educational institution receiving federal funds is required to provide educational programming on the Constitution on this day.
↑2 I apologize, as my retelling of this general story is also primarily based on what I recall from high school (and Wikipedia).
↑3 Though due to the difficulties of travelling at the time, a quorom wasn’t present until May 25.
↑4 Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, pp 1805-10.
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