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-
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
The preamble states the purpose of the charter
(Translated from the Latin by Arber).
The king and queen to all to whom, etc.,
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
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
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
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
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
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
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
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
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
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
41st Cong. Sess. 2 Ch.230 Sec. 86 
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.