sound understanding of the problem
of Copyright as it relates to modern concepts of the rights of authors requires an understanding of the origin of the right and what the right was designed to protect. Before engaging in a discourse on the history of
the legal right, I wish to clarify the meaning of the word "copyright" itself. The common assumption is that it means "right to copy." The unfortunate historical accident that gave rise to this understanding has done much to muddy modern thinking on the subject.
The actual meaning of the term "Copyright" is much opyright begins with Censorship, or more
properly, the relationship between the desire of the Crown to censor and the technology available to circumvent the Crown's wishes. Before the development of the printing press, it was
relatively easy for the Crown to maintain control over the publication of ideas within the Realm. Since publications had to be hand-copied, the books were few and expensive. Burning the books, and, if necessary the authors and copyists, was more effective at stemming the flow of ideas than we sometimes realize in this later era. hen the press, started to make its mark, the
princes, spiritual and temporal, did not immediately realize that control of this new medium would require different techniques. Thus, during the middle and late 1500's, there were many Crown proclamations such as this one: By the Kynge and the Quene, Whereas dyuers bokes filled bothe with heresye, sedityon
and treason, haue of late, and be dayly broughte into thys Realme, oute of forreine countries and places beyond the seas, and some also couertly printed within this Realme, and cast abroade in sondrye partes thereof, whereby not onely God is dishonored, but also an encoragemonte giuen to disobey laweful princes and gouernors. The Kyng and Quenes Maiesties, for redresse hereof, by this ther present proclamation declare and publyshe to all their subiectes that whosoeuer shal after the proclaymyng hereof, be founde to haue any of the sayde wycked and seditious bokes, or finding them, doo not forthwith burne the same, without showing the readyng the same to anye other person, shall in that case be reputed and taken for a rebell, and shall without delay be executed for that offence accordynge to th ordre of marchall lawe. Geuen at our manor of Saynt Jameses the. vi. day of June. God saue the kyng and the Quene.
EXCVSVM LONDINI IN AEDIBUS IO- hannis Cavvodi Tipographi regiae ma- iestatis. Anno. M.D.LVIII
t soon became apparent that trying to control
copies of works once they were in general circulation was less effective than trying to control the presses themselves. Early decrees required printers to print their names, cities, and date of publication on each work to make it easier for the Crown to locate the press responsible for a particular work. However, the serious regulation started with the chartering of the Stationers Company in 1556. The preamble states the purpose of the charter
(Translated from the Latin by Arber). The king and queen to all to whom, etc., greeting. Know ye that we, considering and manifestly perceiving
that certain sedition and heretical books rhymes and treaties are daily published and printed by divers scandalous malicious schismatical and heretical persons, not only moving our subjects and lieges to sedition against us our crown and dignity, but also to renew and move very great and detestable heresies against the faith and sound catholic doctrine of Holy Mother Church, and wishing to provide a suitable remedy in this behalf, of our special grace and from our certain knowledge and mere motion we will, give and grant for ourselves, the heirs and successors of us the aforesaid Queen, to our beloved and faithful lieges [list of 97 printers], free men of the mistery or art of Stationery of our City of London and the suburbs of the same, the they from hence forth may be in fact, deed, and name one body by themselves for ever. The Charter continues to give these individuals
the exclusive right to own a printing press and the implements of printing and also the exclusive right to practice the art of printing.
It also give the Stationers Company the right to
The grant allows the Stationers to conduct search hese provisions were strengthened under Queen Elizabeth in 1586.
The newe Decrees of the Starre Chamber for
orders in printinge.
vicenimo tertio die Junij Anno Domini 1586
Annoque Regni Regine Elizabeth vicesimo octauo Whereas sondrye Decrees and Ordynaunces haue vpon grave
aduice and deliberacon been heretofore made and published, for the repressinge of suche greate enormyties and abuses as of late, more then in tyme paste, haue been commonlye vsed and practised by dyvers contentyous and disorderlye persons professinge the arte or mysterye of Pryntinge or selliuge of bookes And yet notwithstandinge the saide Abuses and enormyties are nothinge abated: but (as it is found by experience) doe rather daylye more and more encrease to the wilfull and manifeste breache and contempte of the said ordinances and decress to the great dyspleasure and offense of the Quenes most excellent maiestie by reason whereof sondrye intollerable offenses and troubles and disturbances haue happened aswell in the Churche, as in the Civill governement of the state and the common wealthe of this Realme, whiche seeme to haue growen because of the paynes and penaltyes conteyned and sett downe in the said ordynaunces and decrees haue been to lighte and small for the correctyon and punishement of soe greivous haynous offences, and soe the offendors and malefactors in the behalf haue not been soe severelye punished as the qualytye of their offneces haue deserved.... Wherevpon the said moste reverend father [Archebysshop of Canterbury] and the wholle presence sittinge in the honorable Courte this xxiijth daye of June in the eighte and twentieth yere of her maiesties reigne vpon grave and mature deliberacon, haue ordayned and decreed that the ordynaunces, constitutcons, rules, and artycles here followinge fromehenceforth by all persons be dulye and invyolablye kepte and observed, according to the tenour purporte and true intent and meaninge of the same, as the tender her maiesties highe displeasure, and as they will answere to ye contrarye at their vttermoste perill.
he Printers who were designated
as members of this monopoly, of course, were not stupid. Very quickly, they determined the best means of
maximizing their own profits was to agree not to compete with each other. (Agreements in restraint of trade were quite legal at this time.)
The Stationers were chartered in 1556. The "Whyte Also yt ys agreed for an offence Donne by master
wallye for conselyng of the pryntynge of a breafe Cronacle contrary to our ordenances before he Ded presente the Copye to the wardyns and his fyne to be payde within xiiij Dayes after this order taken.....xx The nature of this copy is illuminated, in part,
by a license fee for the transfer of the right in 1564, under the title "Takynge of fynes for Copyes:" Receavyed of Thomas marshe for his lycense for
pryntinge of Dygges pronostication and his tectonicon which he boughte of lucas haryson. Also in 1564, the first fines for breach of
copyright were meted out: Recevyd of John sampson for his fyne for pryntinge
of other mens copyes.....xx he rights of the publisher under
his copy were perpetual under the rules of the company. Even under the Anti-monopoly act of 1624, the privileges previously granted to printers were excepted. (Hauhart, 539 at 543). Even after the Star Chamber was abolished
and the King deposed during the Interregnum, the monopoly was continued and strengthened as a means of controlling the press. Indeed, despite the exhorations of John Milton in Areopagitica, the Long Parliament continued the statutes regulating printing, and indeed, after the execution of Charles in 1649, strengthened the censorship regulations: Whereas divers Scandalous, Sedition and Libellous Pamphlets,
Papers and Books are daily contrived, printed, vended and dispersed, with officious care and industry by the Malignant party at home and abroad, for the better compassing of their wicked ends, the subversion of the Parliament and present government, which they well know cannot with more ease be attempted, then by lies and false suggestions.... The basic provisions of the act involved the
fine and imprisonment of authors, publishers, sellers, and buyers of "scandalous or libelous" materials or "inaccurate" accounts of Parliamentary sessions. All printed materials needed to be licensed by Parliament and published by a member of the Stationer's Company. All presses outside of London, Oxford, and Cambridge were banned. Every item printed needed to have a title page giving the author, publisher, and place of publication. ost significantly for our discussion, the Act specifically
affirmed the rights of individual publishers to their copies and forbade other publishers to "counterfeit" the works belonging to other publishers. This last provision was necessary because Parliament had done away with the Star Chamber, under whose provision the copyright system had developed. The Restoration naturally did little to change the status
quo. An act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses, 14 Car. 2. c. 33 (1662), was quickly adopted in keeping with the prior laws and was renewed regularly under Charles II, James II, and the early years of William & Mary. he Golden Age of the Stationer's Company ends
with the expiration of the censorship laws in 1694 and, with it, copyright. There passed a period of sixteen impoverishing years
for the Stationers wherein it was discovered the extent to which the industry had become dependent upon the monopoly. There were a number of attempts to restore the old system during the late 1690's and early 1700's, but it was not until 1710, that a watered down version of the old system was enacted. n act for the encouragement of learning,
by vesting the copies of printed books in the author's or purchasers of such copies, during the times therein mentioned(1710, but commonly referred to as the Copyright Act of 1709, 8 Ann. c. 19) carries many similarities to the Anti-monopoly act of 1624. It is the world's first true copyright act (as opposed to censorship act) and is the model for most of the succeeding legislation on the subject. This act recited the problems associated with the
intervening years: Whereas printers, booksellers, and other persons have of
late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books. . . . The act provided that books already in publication would be
protected from unauthorized republication for 21 years, future works would be protected for 14 years. At the end of 14 years, the right reverted to the author (if living) to sell publication rights for an additional 14 years. The penalty for violation of this right was turning all unauthorized copies of the work in the possession of the violator into "waste paper" and a fine of one penny per sheet in civil court. It further provided for registration of works with the Stationer's Company to prevent accidental publishing of protected works; however, anyone could make such a registration, not just members of the Company. (The act set fines in the event the clerk refused or "neglected" to register such works, and allowed publishers to utilize other means of notice in the event they were refused by the clerk).
To prevent publishers from price gouging as a result of the here are a number of elements of the first
copyright act that are important to note.
It is no longer the purpose of the act to provide the Crown
with a method for regulating the press, but rather, it is intended to provide regulation under which the printing industry could grow and prosper. Further, the rational for wanting the printing industry to grow and prosper was not because the crown, legislature, and people had pity on the plight of the publisher (the opposite was true), but they suffered the monopoly because it was a necessary evil to promote the free exchange of ideas. Again, we need to note that the protection was specifically designed for the printing industry as the technology existed in the early 1700's. he nature of the printing and publishing
industry requires that publishers speculate a certain amount of money on the success of a particular work. When a publisher purchases the rights to a work from the
author, he puts out money. While it is unclear when editors came into the picture, the cost of editorial revisions became an expense. The cost of putting a work in type must be advanced by the publisher. The cost of promoting the work to the booksellers and public is a significant cost. All of these costs come before a publisher really knows whether the work will sell well enough for him to recoup his investment. Regardless how good the publisher is, some of the things that he chooses will be poor sellers.
Consider the situation immediately before the
Since anyone foolish enough to print a
The Copyright Act served to create a market, hile the Copyright Act of 1709
restored profitability to the printers, it did not restore their previous status. Specifically, anyone could print, not just members of the company. More importantly, the copyright did not exist in perpetuity. The Act provided for a renewable 14 year term for the copyright. Of course, during the period of statutory
copyright, the publishers were quite willing to bring enforcement under its provisions. However, once the copyrights started to expire the publishers began to conspire as to how they might regain their lost right to hold copies in perpetuity.
A number of cases were brought during the t appears that the publisher's might have
won with this argument but for the fact that it was suspected that the defendant was in collusion with the plaintiff to throw the case in order to create a precedent. The judges did not render a decision on the matter. The issue came up again in Miller v.
Taylor in 1769 wherein we find one of the most extensive treatments of the history of English printing. This case was found in favor of the publishers on the same arguments. However, five years later, it was overturned by the House of Lords in Donaldson v. Becket in 1774. hile the publishers arguments
did not win in the court of law, they struck a chord in the court of popular opinion. The public of the day was no more
sympathetic to the claimed plight of the wealthy, greedy, monopolistic publishers of that era than they are to the plight of lawyers, insurance companies, and corporate CEO's today.
However, authors are a different story. his is the state of the English
law in 1776 when the laws of England were rolled into the Common Law of the United States. Considering that copyright was such a hot
legal topic at the time the U.S. Constitution was written and the number of representatives of the printing industry who were participants in the convention, it should come as no surprise that a copyright provision formulated on much the same lines as the arguments in Miller would be included in the powers of Congress without significant debate. Nor should we be surprised to discover that Congress quickly acted exercising the power.
What is somewhat surprising is that the he significance of extending
copyright to maps and charts cannot be overstated.
Whereas the Statute of 1709 had been
designed to protect a specific industry with a specific cost structure, the protection now is extended to a new, albeit closely related industry, with an arguably different cost structure. his statute 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 of a movable-type based printing industry). The understood goal of the law was set adrift from the actual workings of the law.
This is seen perhaps more clearly when
Congress added "engravings, etchings, and prints" to the items protected in 1802 and "music and cuts" in 1831.
Emphasizing this change
Whereas, the Copyright Statute o far had the understanding
of the purposes of copyright eroded, that the reader of Wheaton v. Peters (1832), the American correlate of Donaldson will scarcely recognize the concept. The entire discussion of Wheaton
turns on the issue of what the nature of the assumed common law rights of authors in there works was prior to the Copyright Statute, whether the Copyright Statute was intended to give additional rights to the author or to replace their common law rights, and whether if there was a common law perpetual copyright, it continued in the United States after Revolution. oosed 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." The historic 14 + 14 years of protection
that provided a compromise between the publisher's interests in making a profit and society's interest in the availability of knowledge broke down. The Copyright Act of 1831 extended the monopoly period from fourteen plus fourteen years to twenty-eight plus fourteen years. The 1909 act extended it further to 28 + 28. The 1976 act ran that to "author's life plus 50 years" effectively gutting the purpose of that limitation. anditory registration, deposit,
and notice requirements, historically part of the law to ensure that potential republishers were aware of the claims made with respect to a specific work were effectively eliminated
with the 1976 Act and the ratification of the Berne treaty extending Copyright protection to a vast set of previously unprotected materials. Registration, deposit, and notice requirements, because they take time and energy, filter out the vast bulk of potentially copyrightable materials that aren't worth that effort and places a much heavier burden on persons who wish to reuse the material in order to obtain clearance. gain, a third area of significant
expansion is in the type of works covered. Under the 1709 Act, copyright only covers individual
printed book-style works.
The act of 1870 expanded the scope of
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 phototograph 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]
The 1909 Act adds translations, adaptations,
composite works, newspapers, and reproductions to the list of copyrightable materials. The 1976 Act goes to the extent of anything that is capable of being fixed in a tangible medium. (a) Copyright protection subsists,
in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. ecause Copyright was designed historically to protect
an industry with a certain cost framework from self-predatation. The scope has been widened to create a catchall for protecting creative rights generally. Unfortunately, the broadening of the
scope of the law has not been matched by re-examination of the privileges and remedies afforded by the protection. A discussion of the problems created by these three changes: the expansion of Copyright in scope of material covered, the extended duration of the monopoly protection, and the practical roadblocks to reuse of expired materials and licensing of protected materials, are best discussed in the context of what societal needs are with respect to the protection of creative materials. |