Copyright C.P.U. (page 3)

(vii) The American Revolution

In 1672 Massachusetts introduced the first copyright law in what was to become the United States of America when it prohibited the making of reprints without the consent of the owner of the copy.  As in England, copyright was granted to the printer, not the Creator.  Thus the printer John Usher received the first copyright in America granting him the sole right and privilege of publishing the laws of Massachusetts.

Licensing laws were, however, in effect in Massachusetts from 1662 until the 1720s.  As with the Monarch and Parliament in England, both the governor and legislature of the colony were quick to take offense at publications that they considered disagreeable, and there were sporadic prosecutions for seditious libel, beginning with William Bradford in 1692 and continuing until the Revolution (Duniway 1906). 

While there were Licensing Acts in most of the other colonies, before the 1780s only Massachusetts had a formal copyright statute.  There are three reasons:

First, despite the fact that works of American authors were published in America, the number of works was limited and a large proportion of the American market was dominated by British authors.  Second, authors in the colonies were also editors and publishers. There was a sentiment or trade rule called “courtesy copyright”' or “mutual obligation”' among publishers, which effectively suppressed piracy.  Third, there was little or no conflict of market share among publishers on account of the extensive and growing American market.  The market was also strictly segmented.  Each publisher often supported a specific political group confronting the others.  (Shirata 1999)

A year before the House of Lords made its decision on Donaldson v. Beckett, the Boston Tea Party marked the beginning of the American Revolution.  Between 1773 and 1783 the United States was at war with Great Britain and there was no trade between the two – including in law books and legal decisions.

Accordingly, the last major copyright decision of the British courts current in legal circles of what was becoming the United States was Millar v. Taylor of 1769.  The majority opinion penned by Justice Mansfield in the Millar case - that there was a ‘natural’ author’s copyright - held sway unqualified by the subsequent decision of the House of Lords in Donaldson v. Beckett. 

As the revolutionary war played itself out the publishing industry in the colonies increasingly turned towards American authors.  However, the trade courtesy that protected printer/publishers afforded no protection to Creators. Some authors began to lobby for ‘copyright’ protection confusing ‘author’s rights’ with the traditional copyright granted to publishers. In response to a petition from poet Joel Barlow, the Continental Congress:

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 ... executors, and 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 ... 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 save to be secured to the original authors, or publishers, or ... their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper. (Journal of the Continental Congress May 2, 1783).

The States responded (Shirata 1999: Table 1).  What is surprising given the status of Millar v. Taylor, is that excepting three States, all adopted ‘trade-regulating’ copyright statutes similar to the Statute of Queen Anne.  The likely reason being that the various States like:

The framers of the United States Constitution, suspicious of all monopolies to begin with, knew the history of the copyright as a tool of censorship and press control.  They wanted to assure that copyright was not used as a means of oppression and censorship in the United States.  (Loren 1999)

This consuming fear of monopoly and censorship is captured in the words of Thomas Jefferson:

"I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man."

Letter to Dr. Benjamin Rush ,September 23, 1800.
(Thomas Jefferson Online Resources, ME 10:173)

And, with respect to the copyright monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v. Taylor,

Thomas Jefferson, in 1788, exclaimed: “I hold it essential in America to forbid that any English decision which has happened since the accession of Lord Mansfield to the bench, should ever be cited in a court; because, though there have come many good ones from him, yet there is so much sly poison instilled into a great part of them, that it is better to proscribe the whole.” (Commons 1924: 276)

Four years after the Continental Congress called on the States to introduce copyright the US Constitution was adopted in 1787 and was ratified a year later in 1788.  Article I, Section 8 of the Constitution is now known as the “Intellectual Property or Copyright Clause” and states:

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 importance of the clause is evidenced by the fact that the power to promote ‘progress’ was one of very few powers to regulate commerce initially granted to Congress.  Two years after ratification of the US Constitution, Congress passed the first Copyright Act of 1790: An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned.

The state copyright statutes, most of which were enacted in response to the Continental Congress Resolution, were modeled on the Statute of Anne and thus presaged the inevitable.  The federal copyright was to be a direct descendant of its English counterpart. The language in the United States Copyright Clause was almost surely taken from the title of the Statute of Anne of 1710; the American Copyright Act of 1790 is a copy of the English Act; and the United States Supreme Court in its first copyright case, Wheaton v. Peters, used Donaldson v. Beckett as guiding precedent in confirming copyright as the grant of a limited statutory monopoly. (Patterson 1993)

Inclusion of a ‘monopoly-granting’ power in the Constitution and the Copyright Act of 1790 involved great debate and deliberation particularly between Thomas Jefferson, who initially opposed all monopolies including copyright, and James Madison who proposed its benefits and inclusion. 

In this debate Madison played both sides of the fence, supporting natural or common law rights for Creators on the one hand, and promoting regulation and limitation of the publishing industry through statute on the other. His apparently contradictory opinions are expressed in his correspondence with Jefferson and in the Federalist papers. 

These documents prove that Madison accepted traditional English ideas of copyright. That is, he understood copyright as a monopoly granted for only a limited term.  Why did he explain copyright as a natural right in the Federalist when he clearly understood that copyright and patent were inevitable monopolies to promote science and literature?  He seemed to believe it would be easier to persuade the people, amid the current mood of antipathy toward monopolies and England, to accept copyright and patent as natural rights than as trade regulation laws which were monopolistic in nature.  It is well known that the Americans adopted the common law after screening aristocratic or prerogative elements out.  The Founding Fathers understood the nature of copyright as a monopoly that was granted for administrative purposes to promote the sciences and they adopted copyright law after modifying its doctrine to suit American taste.  That was America's first copyright statute, the Copyright Act of 1790. (Shirata 1999)

The result was a bifocal vision of copyright in the United States.  On the one hand, the Constitution and Copyright Act adopted the traditional English idea of copyright as trade regulation to limit the monopoly and censorship powers of the publishing industry and its duration thereby creating a ‘public domain’. On the other hand, lawyers and academics advocated a common law copyright derived from ‘natural law’ arguing that the Constitution and Copyright Act merely gave it written form. 

The issue came to a head in the first major American copyright case - Wheaton v. Peters in 1834. As in the earlier British case of Donaldson vs. Beckett of 1774, the waters had been thoroughly clouded.  While there had never been a Common Law author’s copyright, only a printer’s copyright, both cases turned on the issue of an assumed common law rights of authors in works prior to the Copyright Act of 1710 and 1790, respectively.  The questions facing the court became, in effect: was the Act intended to give additional rights to the author or to replace common law rights, and if there was a common law perpetual copyright, did it continue in Britain after the Statute of Queen Anne and in the United States after Revolution?

Loosed from its historic moorings, copyright took on a life of its own for the vague purpose of stopping illegal copying, and ultimately, came to be viewed as part of the law protecting "intellectual property." (Mead 1999)

The Federal Supreme Court concluded there was no common law copyright and that statutory protection could only be obtained by adhering to the 1790 Act.  It also confirmed that copyright was a privilege, not a right.  In its opinion, the case was about protection against monopoly and accepted the English precedent for the United States. In the process, however, the Court also rejected what later became known as the “moral” rights of authors.

Beyond the ‘natural’ vs. ‘positive’ law, the first US Copyright Act also involved at least five significant expansions of the copyright concept.  First, protection was extended to maps and charts as well as books.  The Statute of Queen Anne only protected books.  While related, the cost structure of the two industries are arguable quite different. Initial extension of copyright protection was followed in 1802 to include “engravings, etchings and prints”, in 1831 “music and cuts” and, by 1870, works eligible for copyright protection included:

Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, shall ... have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works. (41st Cong. Sess. 2 Ch.230 Sec. 86,1870)

Subsequent copyright acts extended protection to broadcasts, motion pictures and software programs.  In this way the Copyright Act of 1790:

…  stands as the point of divorce between the perceived purposes (which became the protection of authors and publishers) and the methodology of the law (which remained to protect a movable-type based printing industry).  The understood goal of the law was set adrift from the actual workings of the law. (Mead 1999)

Second, the language of the 1790 Act represented an apparent if not actual change in philosophy, if not practice:

Whereas, the Copyright Statute of 1709 clearly recognized that the protection was for the benefit of the publishers, with what we would now call a "trickle down effect" to the authors; the U.S. acts uniformly talk about the protection as being primarily for the benefit of the author and only benefiting the publisher as an assignee.  But, again, this occurs without any change in how the law worked to benefit the publisher rather than the author. (Mead 1999)

Proprietors, due to the Anglo-American legal fiction that corporate entities (‘legal persons)’ have the same rights as individual human beings (‘natural persons’), could, however, continue to claim copyright in their own right.   Furthermore, another peculiarity of the Anglo-American copyright tradition is that copyright to a work created by an employee or under commission belongs to the employer and neither economic nor moral rights attach to the actual author employee. 

Third, while language and philosophy may have changed, the financial position of printers and publishers was in fact enhanced. Copyright protection was initially available only to US citizens or residents.

The first national copyright law, passed in 1790, provided for a 14-year copyright ... but only for authors who were citizens or residents of the US. The US extended the copyright term to 28 years in 1831, but again restricted copyright protection only to citizens and residents.

This policy was unique among developed nations. Denmark, Prussia, England, France, and Belgium all had laws respecting the rights of foreign authors. By 1850, only the US, Russia and the Ottoman Empire refused to recognize international copyright.

The advantages of this policy to the US were quite significant: they had a public hungry for books, and a publishing industry happy to publish them.  And a ready supply was available from England.  Publishing in the US was virtually a no-risk enterprise: whatever sold well in England was likely to do well in the US.

American publishers paid agents in England to acquire popular works, which were then rushed to the US and set in type.  Competition was intense, and the first to publish had an advantage of only days before they themselves were subject to copying.  Intense competition leads to low prices. In 1843 Dickens's Christmas Carol sold for six cents in the US and $2.50 in England. (Varian 1998)

It was not until passage of the International Copyright Act (known as the Chace Act) in 1891 that the United States accorded foreign authors equal treatment if the author's country of citizenship accorded reciprocal protections to the works of American authors.  However, special benefits continued to flow to American printers because of the longest-lived U.S. non-tariff trade barrier in history – the "manufacturing clause" of U.S. copyright law (Boyd 1991).

The Chace Act restricted the import of foreign-printed books by denying U.S. copyright protection to, at first, works by all English-language authors, and then to American authors unless their work was printed in the US. It was through this provision, for example, that the works of Henry Miller including the Tropic of Cancer and Tropic of Capricorn were kept out of the United States because only a French printer could be found to publish them.  This restriction on granting copyright to works by American authors printed abroad was not removed until 1984.

Fourth, another hotly debated issue during the drafting stage of both the Copyright Clause of the Constitution and Copyright Act of 1790 was the duration of copyright.  Initially duration was to be based on the average life span of authors. Thus under the Copyright Act of 1790, the duration of copyright was set at 14 years with the possibility of renewal for another 14 years if the author was still alive.  Thomas Jefferson based a proposed term for copyright on the principle that "the earth belongs in usufruct to the living", and computed it by means of actuarial tables:

Generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from tables of mortality [and is found to be] 18 years 8 months, or say 19 years as the nearest integral number...  The principle, that the earth belongs to the living, and not to the dead, is of very extensive application... Turn this subject in your mind, my dear Sir... and develop it with that perspicuity and cogent logic so peculiarly yours...  Establish the principle... in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years. (Jefferson, Letter to James Madison, September 6, 1789)