Cite as: 44 Santa Clara L. Rev. 365
Santa Clara Law Review
2004
Articles
*365 THE PROBLEM WITH CONGRESS AND COPYRIGHT LAW: FORGETTING THE PAST AND
IGNORING THE PUBLIC INTEREST
Craig W. Dallon [FNa1]
Copyright © 2004 School of Law, Santa Clara University; Craig W. Dallon
I. Introduction
The bedrock of copyright law in the United States is found in the United States Constitution, Article I, section 8, which states in relevant part that "[t]he 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." [FN1] Although the term "copyright" is never used, this provision of the Constitution [FN2] is commonly known as the Copyright Clause. [FN3] Since the ratification of the Constitution, the Copyright *366 Clause has been the basis of Congress's power to enact copyright laws protecting the rights of authors [FN4] in their works. Congress has exercised this power in a series of major copyright laws beginning with the Copyright Act of 1790, followed by the respective Acts of 1831, 1870, 1909, and 1976. [FN5] The current copyright law is the Copyright Act of 1976 ("the 1976 Act"). [FN6] In 1998, Congress amended the 1976 Act when it passed the Sonny Bono Copyright Term Extension Act ("CTEA"), which extended the terms of existing and future copyrights by twenty years. [FN7] The CTEA has provoked significant litigation, culminating in Supreme Court review [FN8] and extensive scholarly discussion concerning the purpose of copyright law and the power of Congress under the Copyright Clause. [FN9]
Through the centuries, copyright law has developed and adapted to changing conditions. In particular, new technology has driven changes and advancement in copyright law. The invention of the printing press in the fifteenth century *367 literally put in motion the machinery that precipitated copyright protection. [FN10] Later, invention of the photograph, piano roll, motion picture, voice recording, radio, television, copy machine, video tape, computer, and the Internet each raised new issues which forced reconsideration and adaptation of copyright principles. Peer-to-peer file sharing, CDs, DVDs, Internet streaming, and distance learning continue to challenge copyright principles.
Notwithstanding these advances in today's rapidly changing technological environment, the original purposes of the Copyright Clause remain relevant today; the Framers' original intentions define the reach of the clause, and the original purposes continue to make good sense.
As Congress and the judiciary tackle new issues in copyright law, they should reflect upon the scope of Congress's authority as embodied in the Copyright Clause, bearing in mind the values and purposes which led to inclusion of the clause in the Constitution. When it passed the CTEA in 1998, Congress either misunderstood or deliberately brushed aside the primary rationale for copyright protection--the promotion of the public good. Instead, Congress embraced a natural law-based, property right rationale. [FN11]
The utilitarian, or public benefit, rationale of copyright law (the "public benefit rationale") suggests that copyright protection exists to encourage the creation of works and public access to those works. [FN12] According to this rationale, copyright law provides an incentive, in the form of a limited monopoly, for authors to create works. [FN13] This limited monopoly allows authors an opportunity to obtain adequate remuneration for their works. The incentive is balanced against the public's need for access to the work. Ultimately, after the limited monopoly has provided an adequate incentive, the monopoly *368 ends; the work enters the "public domain" and is freely available for public use. Thus, copyright is a grant or privilege created by statute, which can then be altered and limited by statute. [FN14]
The competing theory of copyright law is a natural law-based property theory ("property right rationale"). [FN15] Under this view, by virtue of being the creator of a work, the author has an inherent ownership right in the work. This view is often cloaked in a fairness argument. Because the author created the work, it is only fair to afford the author control over the work. Copyright is a recognition of this ownership or property right without regard to incentives or public benefits. To be sure, this natural law property right rationale has a long pedigree and has influenced many lawmakers and jurists. [FN16] Nonetheless, the property right rationale traditionally has been subordinate to the public benefit purpose manifest in the express words of the Copyright Clause itself. [FN17]
In an effort to elucidate the rationale underlying the Copyright Clause, Part II of this article looks back at the historical roots of copyright prior to the Statute of Anne in 1710. The article acknowledges glimmers of copyright law emanating from the Roman Empire, recognizes the impact of the invention of the printing press on the development of copyright law, and reviews the role of the Stationers' Company and the stationers' copyright. Part III discusses the Statute of Anne and the failed struggle for recognition of a perpetual common law copyright that followed, while Part IV considers copyright as it was conceived and developed in the United States. Part V discusses the passage of the CTEA, and demonstrates that Congress was influenced by the property right rationale at the expense of the public interest.
*369 II. Looking Back to the Historical Roots of Copyright Law
A. Hints of Copyright Before the Printing Press
1. Roman Law Antecedents
Although the roots of American copyright law can be traced back to England and the Statute of Anne enacted in 1710, the history of copyright law began much earlier. Roman law neither recognized nor protected copyright interests, [FN18] but did recognize the foundational building blocks of modern copyright law. [FN19]
One such building block found in Roman law is manifested in the understanding of ownership rights. According to Roman law, ownership of property could be obtained through accession (accessio), [FN20] where two things with independent existence were combined into one. [FN21] By accession, the "accessory thing" would merge into the "principal thing," and the owner of the principal would be the owner of the single merged "principal thing." [FN22]
An illustration of accession provided by Roman jurists involved writing on someone else's parchment or paper or *370 painting on someone else's canvas or wood. [FN23] The Institutes of Justinian discusses the following examples:
Writing, again, even though it be in gold lettering, accedes to the paper or vellum in the same way that buildings accede to the land or the seeds planted therein. Thus, if Titius write a song or narrative on your paper or vellum, not Titius but you will be regarded as the owner thereof. . . . If one person paint on another's board, there are some who think that the board accedes to the picture while others hold that the picture, whatever it be, accedes to the board. To us, however, it appears preferable that the board accede to the painting: for it is absurd that a painting by Apelles [FN24] or Parrhasius [FN25] should, by accession, become part of a cheap board. [FN26]
These explanations do not address the existence or ownership of an author's copyright but instead appear to be limited to the necessary issue of ultimate ownership of the object in which a work is fixed. The discussion is significant, however, because it demonstrates the Roman law understanding that authors and artists have, at least initially, property right in their works separate from the objects in which those works are fixed. [FN27] It further demonstrates that those rights, in the case of an artist, may be so significant that they are superior to the rights of the owner of the canvas or wood on which the painting is fixed. [FN28] This distinction between an author's *371 rights in a work of authorship and an owner's rights in the object in which the work is fixed is a fundamental principle of copyright law. [FN29]
The Romans recognized the value of an author's manuscript, and, in at least some cases, booksellers paid authors for their works. [FN30] Wealthy people and booksellers had trained slaves or hired copyists who transcribed manuscripts to create copies for sale. [FN31] In his Commentaries on the Law of England, William Blackstone confirms that "the sale of literary copies, for the purposes of recital or multiplication, is certainly *372 as antient [sic] as the times of Terence, [FN32] Martial, [FN33] and Statius. [FN34]" [FN35] Still, there was no copyright as such and no protection against piracy. [FN36] At best, an author received some compensation for the original manuscript, but once the manuscript was sold or given away, it could be freely copied without any limits placed by the author and without any compensation to the author. [FN37]
2. Jewish Law Tradition: Copying Texts and Right of Attribution
Like Roman law, Jewish law also had some basic principles that foreshadowed the later development of copyright law. Jewish law endorsed and even commanded the faithful reproduction of scriptural and other texts. [FN38] This principle is significant for two reasons. First, it permitted and encouraged the copying of texts, [FN39] which required recognition of what *373 now might be called the "public domain." [FN40] This copying was necessary to facilitate broad dissemination of Jewish law and tradition for the benefit of the people. [FN41] Second, Jewish law required accuracy for the reproduction of texts. [FN42] Jewish law enjoys a strong tradition of protecting the moral rights of authors including the right to protect the integrity of an author's work. [FN43] These moral rights included the right of attribution. At least as early as 70 A.D., Jewish law required that credit be given when using words or ideas of others. [FN44]
3. The Legend of St. Columba in the Sixth Century
After the decline and fall of the Roman Empire in the fifth century, [FN45] bookmaking and the preservation of literature fell largely upon various monasteries throughout Europe. [FN46] From this period comes the earliest account of what might be considered a copyright dispute, a dispute in Ireland between *374 Saint Columba [FN47] and Saint Finnian [FN48] circa 560 A.D. [FN49] Details of the dispute vary and have been embellished, [FN50] but the basic story is this: the Irish monk Columba visited his former teacher Finnian at a monastery. While at the monastery, Columba secretly and without permission copied a psalter [FN51] owned by Finnian. [FN52] Finnian discovered Columba's deed and demanded the copy. Columba refused and claimed that he *375 owned the copy. [FN53] Allegedly, the case was brought before the King of Ireland, King Dermott, [FN54] who found for Finnian. King Dermott pronounced the now famous judgment, "To every cow her calf, and consequently to every book its copy." [FN55] Partly in response to this dispute, Columba precipitated a civil war which ultimately resulted in defeat of the King. [FN56] The alleged copy of the psalter became famous and is known as "Cathach" meaning "fighter" or "battler." [FN57] The Cathach is among the earliest surviving Irish manuscripts and is in the custody of the Royal Irish Academy in Dublin. [FN58]Assuming the story of Saint Columba and the psalter has a factual basis, [FN59] it *376 supports the idea that there were limits on the right to reproduce a manuscript. Even if King Dermott's ruling was an isolated decision and not driven by any generally accepted legal principles, it demonstrates that people recognized the issue posed by copying a book without permission. Even if the story is completely fictional, the dated history and content of the story itself demonstrate that long before modern copyright protection, at least some people understood that possession of a book did not necessarily entitle the possessor to freely copy it. [FN60]
In particular, two aspects of the dispute are worth considering. First, according to most versions of the story, Columba was given access to the manuscript (not for copying, but for reading); [FN61] thus, there was no issue of theft of the manuscript itself. Additionally, there was no record of any physical damage to the manuscript. This brings the copyright issue into focus--did one in rightful possession [FN62] of a manuscript have the right to copy it without permission of the manuscript's owner? King Dermott answered no; the copy was an extension of the original.
Second, there was no question concerning authors' rights. Finnian was the owner of the psalter but was not its author. [FN63] In fact, given the practice of the times and the nature of the psalter as primarily based on scriptural works, Finnian's psalter itself was almost certainly a copy of another manuscript. The failure to acknowledge or consider authors' rights is consistent with early development of copyright law generally. Rights of authors, at best, took a backseat. Rights of owners of manuscripts, publishers, or booksellers were the only concern. The story of Columba is significant not only because it hints at copyright protection, but also because it and the broader accounts of Columba's life confirms the development*377 of literature and bookmaking in monasteries during these early centuries. [FN64]
B. Invention of the Printing Press in the Fifteenth Century
Technology has long driven development of copyright law. As those who have experienced the major technological advances of the twentieth century can appreciate, advances that make the copying and distribution of works easier have important copyright implications. In ancient times, writings were made on clay tablets, [FN65] stone, [FN66] metal plates, [FN67] wood, [FN68] papyrus, [FN69] animal skins, [FN70] and parchment. [FN71] Suitable materials were often expensive and scarce, [FN72] and writing on these materials *378 could be difficult and time consuming. Transporting and preserving these writings could also be difficult. Under these conditions, the logistics of copying writings served as barriers to large scale copying and distribution of writings. The development of paper [FN73] and improvements in ink [FN74] made copying easier, [FN75] but it was the invention of the printing press with moveable type [FN76] that really prompted the development of copyright protection. [FN77]
The moveable type printing press facilitated efficient, mass duplication of a single manuscript. [FN78] The importance of the printing press can hardly be overstated. With multiple copies and decreased costs associated with printing, literature became more accessible. [FN79] Printing also doubtlessly saved many works from extinction. Printing not only made possible the mass production of books, but also assured their accuracy. One scholar, Elizabeth Eisenstein, explained the problems associated with copying manuscripts by hand:
*379 In view of the proliferation of "unique" texts and of the accumulation of variants, it is doubtful whether one should refer to "identical copies" being "multiplied" before print. This point is especially important when considering technical literature. The difficulty of making even one "identical" copy of a significant technical work was such that the task could not be trusted to any hired hands. Men of learning had to engage in "slavish copying" of tables, diagrams, and unfamiliar terms. [FN80] Freed from the need to engage in "slavish copying," scholars could then spend their time more productively, in reflection, research, or writing. [FN81]
As early as the 1430s, Johan Gutenberg, a goldsmith, began work on the development of the printing press. [FN82] By about 1450, Gutenberg had developed the printing press in Mainz, Germany. [FN83] The first known substantial work published [FN84] using Gutenberg's printing press is the now-famous forty-two-line Bible, known as the Gutenberg Bible or the Mazarin [FN85] Bible, [FN86] published in 1455 or early 1456. [FN87] Printing *380 press technology spread rapidly all over Europe, [FN88] first to other parts of Germany during the 1460s, then to Italy in about 1465, and to France in the same decade. [FN89] During the 1470s it spread to most of the rest of Europe, from Spain to Poland. [FN90] The printing press arrived in England in 1476, and William Caxton became the first English printer. [FN91]
During the period following the introduction of the printing press, the businesses of publishing and bookselling took on increased importance. Prior to the printing press, there were book production and sales, [FN92] but on a more limited scale. [FN93] Due to the printing press, printers, publishers, booksellers, and related businesses [FN94] sprang up all over Europe, *381 and they became an important part of their local economies. [FN95] Some publishing houses were substantial operations. One early printer, Anthoni Koberger of Nuremberg, by 1509 reportedly had about twenty-four presses and employed more than one hundred workers. [FN96] Many early printers and publishers were also retail booksellers. [FN97]
C. Special Privileges Granted to Printers
Printers often wielded significant influence in their communities. [FN98] By nature of the business, they tended to be educated and well connected. [FN99] To be a successful printer, one had to be able to read, possess substantial business acumen, and have substantial financial backing to afford the capital investment required to obtain and maintain a printing press and run a business. [FN100]
These printers, the equivalent of our modern-day publishers, from very early on had the ear of government leaders, and they used their position to obtain special privileges to protect their interests. These grants of special privileges may be viewed as the first copyrights. Significantly, these privileges primarily applied to publishers rather than authors. The efforts and investments of publishers brought the works to the public, and the publishers were considered the owners *382 of any rights to the works. [FN101] This was particularly true during the early days of printing when many works were classics whose authors were long since gone. [FN102]
The problem of "piracy" of a work arose very early and was a significant concern for printers and publishers. After the work of editing and setting a book, a second printer could quickly copy the book, without the expense or risk involved in purchasing the manuscript, preparing the layout, editing it, or marketing it. [FN103] This allowed the second printer to undersell the original publisher. Gutenberg's successors, Fust and Schoeffer of Mainz, allegedly pirated an edition from Mentelin of Stasburg, [FN104] and Mentelin may have pirated an earlier edition of a different work by Fust and Schoeffer. [FN105] The early Italian publisher Aldus Manutius, who published from 1495 to 1515, also had to deal with competition for pirated copies of his works. [FN106] In England, in 1533, the printer Wynkyn de Worde (Caxton's assistant and successor) [FN107] complained of piracy of his works. [FN108]
*383 Some printers relied upon "courtesy of the trade" or express agreements to protect their interests. [FN109] To protect themselves from what they considered to be unfair competition, others sought special protection from government authorities. The protection usually came in the form of specific privileges extended to particular publishers for particular works and usually for limited times.
The first of many privileges was granted by the Senate of Venice in 1469, to the printer John of Speyer, who received the exclusive right to all printing in Venice for five years. [FN110] This complete monopoly was not a typical privilege, and it did not last long; John died in 1470, and with his death the monopoly ended. [FN111] Later privileges were granted to authors, publishers, translators, or editors for specific works or types of works. [FN112] In some cases printers sought and received privileges that identified specific authors but not specific works. [FN113]
In some cases, authors, rather than the printers, received the privilege. [FN114] Perhaps the earliest privilege to an author was granted in Venice to Marcus Antonius Sabellicus [FN115] on September 1, 1486, for his work on the history of Venice. The privilege stated:
The history of our city, written by the very learned Marcus Antonius Sabellicus from Rome, deserves for its eloquence and historical veracity to come into full public view. Therefore *384 we, the undersigned noble Councillors, have debated and decreed that the aforementioned work . . . can be entrusted to some expert printer to print . . . furthermore, we shall not permit anyone other than him to have the said work printed, under penalty of the displeasure of the most serene Signoria and a [a fine] of 500 ducats . . . . [FN116] Significantly, the rulers of Venice state their rationale for granting the privilege--to encourage this worthy work "to come into full public view." [FN117] Because the work was a history of Venice, in the eyes of the rulers, Sabellicus's work was particularly important for the public good. But other works too would benefit the public, and Venice sought to encourage them. [FN118]
That Venice in these early years began to recognize authors' rights in their literary works is further demonstrated by the privilege granted to Daniele Barbaro in 1493, when the College (or Cabinet) of Venice granted a privilege to him for a work written by his brother, Hermolao, who had subsequently died. [FN119] Daniele, as his brother's heir, was granted the ten-year privilege. [FN120] Barbaro's privilege is noteworthy because it indicates that an author's successor could be entitled to a privilege. Other parts of Europe also adopted the practice of granting privileges. [FN121]
From the point of view of printers and authors, there was an immediate economic need for a privilege. One concern was the need to recoup the expense of production of a given edition and provide a reasonable return. Gabriel and his partners petitioned for a privilege in 1497, stating that they had *385 "spent a great deal of money in this admirable and most useful enterprise [efforts to bring Greek and Latin texts to print], and, because the debt [was] heavier than their own resources [could] bear," they needed a privilege. [FN122] The need to limit unfair piracy was another related concern. Gabriel and his partners further complained that "there may be many who, through hatred or jealousy, will use any means to injure the said company or crush it entirely." [FN123] Therefore, they asked for "the special favour of a monopoly" for their new technique (a patent), and a prohibition against publication of four Greek works [FN124] "on pain of forfeiting all copies and paying a fine of 1 ducat per volume." [FN125] The petitioners concluded by virtue of the privilege they could pay their debts and "would also gain some advantage from their labour and experiment, and would not be ruined for having made the attempt." [FN126]
"Pirated" copies that might "spoil" the market were a concern and were a primary justification for the grant of privileges. The 1496 petition of Bernardino Rasma for a privilege states the case:
For when [a printer-publisher] shall have set himself to produce a book of rare beauty--which entails the absorption of all his capital in it--should his brother merchants come to hear of it, they use every cunning device to steal the proofs of the new work . . . and set to . . . print the book before the original designer of the book can finish his edition, which, when it is ready for issue, finds the market spoiled by the pirated edition. [FN127]
But the early system of Venetian privileges began to create problems for those they were intended to benefit. Venice granted numerous privileges but some were conflicting or ambiguous. One privilege was granted but identified neither the protected title nor author. [FN128] Other privileges were obtained *386 in bad faith--where the privilege holder had no intention of publishing the work, but rather intended to extract payment for the rights, or simply intended to prevent others from publishing the work. [FN129] Horatio Brown explained:
By no means all the works for which privileges were demanded, issued from the press. For when the custom of asking for privileges took firm hold on the printing and publishing trade, there was a rush of printer-publishers to secure copyrights in a great number of books which they had small prospect of ever setting up in type, . . . . [FN130] The number and nature of privileges resulted in both obstacles to printing [FN131] and the risk of unintentional infringement. [FN132]
In 1517, the Senate of Venice attempted to address this problem with an enactment that should be credited as the first copyright statute. [FN133] The statute eliminated all prior privileges and placed all works already published in the public domain. [FN134] The enactment limited future protection to new works or works not yet printed, and a privilege would only be allowed after a two-thirds vote in the Senate. [FN135] Grants of prior privileges were, in essence, a series of private acts to address needs of specific individuals; the 1517 law was the first public copyright law of general application.
In 1533, Venice passed broader copyright laws. [FN136] These *387 early Venetian privileges and enactments were concerned primarily with protecting and regulating printers; [FN137] the interests of authors were not at issue. Printers printed works without any concern for the author's wishes. [FN138] In about 1544, Venice began to afford greater consideration to rights of authors and began to require evidence of the author's consent in order to obtain the privilege to print a work. [FN139]
The number of privileges granted under these laws in a particular year varied, but the numbers were not insignificant. The highest number of works for which privileges were granted in a single year was 117 in 1561. [FN140]
It is not surprising that Venice would be the early leader in the development of copyright law. During the late fifteenth century and the sixteenth century, Venice was a leading publishing center. [FN141] One hundred fifty-five printers established themselves in Venice during the period of 1472 to 1500; [FN142] these printers produced as many as 4,500 different editions through the year 1500. [FN143] Venice also became an important *388 center for printing music. [FN144]
Privileges were not issued solely by civil governments. Jewish law concurrently developed its own system of printing privileges. In 1550, an Italian rabbi extended protection to an edition of Maimonides's Code, until the first issue sold out. [FN145] Protection amounted to a ban against infringing or against purchasing an infringing work at the peril of excommunication. [FN146] The rabbis perceived the need to balance the interest in broad dissemination and availability of works against the necessity that publishers make a profit and recoup the costs of publication. The result was the equivalent of copyright protection for a limited duration to allow a publisher to recoup the costs of printing. [FN147] The term would be an estimate of the time necessary to sell out the first edition; today the term generally lasts from ten to twenty-five years. [FN148] Some limited copyright protection was viewed as a necessary means to encourage production of works to benefit the public. [FN149] In addition, the Popes also conferred special privileges upon printers. [FN150]
*389 D. The Development of Early English Copyright Law: Royal Privileges and the Stationers' Copyright
1. Grant of Royal Privileges to Printers
The history of English copyright began with royal privileges and was followed shortly thereafter with the development of a private contractual copyright under the auspices of the Stationers' Company. The Crown granted printing privileges first through warrants, beginning in 1518, and thereafter, beginning in about 1539, by both warrants and letters patents. [FN151] Some privileges were specific to particular works; others covered a category of works or all works of a particular printer. [FN152] Privileges granted by warrant tended to last for a shorter duration then did privileges granted by letters patent, and warrants were specific to individual printers. [FN153] In contrast, privileges granted by letters patents (sometimes referred to as printing patents) usually covered classes of books such as Bibles, psalters, or law books [FN154] and could be assigned or inherited. [FN155] In perhaps the earliest example of a royal privilege, the Royal Printer Richard Pynson in 1518 received a printing privilege for a term of two years for a speech. [FN156] *390 Whether in the form of a warrant or printers patent, these royal privileges had the effect of granting the holder of the privilege the exclusive right to publish a work within the scope of the privilege for the term stated. [FN157] These privileges are recognized by some as the earliest forms of copyright in England and are therefore the direct ancestors of American copyrights.
The printers sought these privileges for the same financial reasons the Venetian printers sought them--economics. [FN158] In one commentary from 1582, the report's author commented that the number of printers had greatly increased so that printers were "driven through necessity" to contract for low prices and "were most times small gainers, and often losers." [FN159] These hardships forced printers to seek privileges to assure profitability and stability. [FN160]
*391 There may have been several motivations for monarchs to grant royal privileges, both in England and in other parts of Europe. First, the English crown and other European governments operated on a system of patronage and rewards. The crown could reward its royal subjects with a valuable right. In exchange, presumably, the crown could expect continued or increased loyalty. [FN161] Second, the crown became increasingly concerned about the dangers of printing. Printers had the means to produce and broadly disseminate views that might be critical of the crown or the government, potentially undermining the crown's credibility and shaping public attitudes about the crown. Royal privileges may have been a means of encouraging loyalty from printers and, to an extent, controlling the content of what was printed. Finally, notwithstanding the potential threat posed by printers, the crown may have wanted to encourage the development of the young publishing industry to the benefit of the public. Printing and its ability to spread knowledge and encourage advances were part of a developing, vibrant nation. [FN162] Seen in this light, some measure of protection to ensure a reasonable return for printers must have been appealing to the crown.
2. A Private Contractual Copyright--The Stationers' Copyright
Even before the printing press, craftsmen involved in the bookmaking and bookselling trades organized in England to protect their interests. In 1357, there was a craft guild for scriveners (those who copied text) and limners (those who illustrated manuscripts) in London, referred to as the Brotherhood of Manuscript Producers. [FN163] Later, in 1403, a guild for *392 scriveners, limners, bookbinders, and booksellers was created. [FN164] Those involved in the book trade, particularly printers and booksellers, became known as "stationers," [FN165] and by about 1510, a voluntary association, or "Brotherhood of the Stationers," was formed. [FN166] This Brotherhood of Stationers became officially recognized by a royal charter granted on May 4, 1557, [FN167] and was known as the Stationers' Company or the Company of Stationers.
The Stationers' Company was significant because its charter granted its members a near monopoly on printing in England. The charter stated:
Besides we will, grant, ordain, and appoint for ourselves and the successors of us the foresaid Queen that no person within this our realm of England or the dominions of the same shall practise or exercise . . . the art or mistery of printing any book or any thing for sale or traffic within this our realm of England or the dominions of the same, unless the same person at the time of his foresaid printing is or shall be one of the community of the foresaid mistery or art of Stationery of the foresaid City, or has therefore a licence of us . . . by the letters patent of us or the heirs or successors of us the foresaid Queen. [FN168]
Under the charter, the Stationers' Company was empowered to establish "ordinances, provisions and statutes" to govern *393 its members. [FN169] The monopoly, combined with the power to govern its members, essentially allowed the Company to set the rules for printing and publication.
With this authority, the Company established internal rules that amounted to private copyrights. Before a work could be published by a member of the Company, the "copy" had to be entered in the register book of the Company by a member of the Company. [FN170] The "copy," used in this context, meant the original manuscript to be duplicated. [FN171] "Copy" or "copye" also came to mean the property interest signifying the right to print resulting from entry in the Company's register or in short, the copyright itself. [FN172] As early as July 1555, even prior to the Company's charter, there is an entry in the Company's books ordering Mr. Wallye to pay a fine for the offense of "conselying of the pryntynge of a breafe Cronacle contrarey to our ordenances before he Ded presente the Copye to the wardyns." [FN173] Once registered by one member of the Company, no other member could publish the same work without the permission of the member who registered the copy. [FN174] The records *394 of the Company reflect that disputes over the right to publication arose and were resolved internally, [FN175] and in many cases resulted in fines against the offender. [FN176] Before members could bring any legal action, company ordinances from 1678 required members with disputes over the printing or sale of any work to bring their complaints to the Company to be heard and resolved. [FN177] Failure to bring a dispute to the Company before filing an action resulted in a fine which was to be paid to the Company. [FN178]
Company membership consisted of printers, bookbinders, booksellers, suppliers of paper, and a few others associated with the book trade, [FN179] but did not include authors. Some printers also sold the books they printed to the public and hence were both printers and booksellers. Of those occupations in the Stationers' Company, initially the printers were the most powerful, and they controlled the organization. [FN180] From the stationers' point of view, the Company was necessary for three reasons: first, to protect their trade from poor workmanship; second, to minimize unprofessional practices; and third, notwithstanding protestations to the contrary, to limit competition. Finally, the stationers expressed concern that nonmembers of the Company were unqualified, ill trained, and likely to produce poor quality work. [FN181] This same argument was sometimes urged by the early Venetian printers to justify grants of privileges to themselves. [FN182]
*395 In one letter expressing concern over the establishment of a proposed press at Cambridge University, the wardens [FN183] of the Company expressed their concern over the "disordered behavior of printers" generally and in particular the "unskillful" master of the specific printing house. [FN184] They further expressed concern over "the apprentices and other youths that shall be brought up in that faculty there shall not be under our government, and so careless of their behavior." [FN185] In a second letter concerning the same subject, the author explains that he granted a warrant to wardens of the Company "to search and to stay" what purported to be University of Cambridge presses, in part on the report that the owner was "utterly ignorant in printing" and fear that work would be done "by servants . . . of the worst quality." [FN186] Perhaps ironically, members of the Company were prohibited from training anyone except their own sons or bound apprentices of lawfully authorized printers. [FN187] As evidence of rules addressing quality, there is an entry in the Company's register dating back to December 1557, recording receipt of a fine assessed against a member for binding books "in shepes lether / contrary to our ordenaunces." [FN188]
The stationers were also concerned about what they considered unprofessional conduct that needed to be regulated. According to a letter sent by the wardens of the Company in 1578, the Company was organized to address "the disorders in printing . . . to the end we might restrain many evils which would have happened in the said profession," and further notes the Company's "endless toil to withstand the lewd attempts of many in our profession." [FN189] The letter does not provide a complete explanation of what the "many evils and lewd *396 attempts" actually were; however, it is clear from other Company records that, among other things, [FN190] the Company was concerned about the publication of objectionable content [FN191] and pirated editions of other printers' works.
Queen Mary I clearly granted the 1557 charter to control the content being printed. The first paragraph of the charter itself states the following purposes:
Know ye that we, considering and manifestly perceiving that certain seditious and heretical books rhymes and treatises are daily published and printed by divers scandalous malicious schismatical and heretical persons, not only moving our subjects and lieges to sedition and disobedience 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 . . . . [FN192]
The charter granted the Company the power to search printing and bookselling establishments, to seize illegally printed books, and to imprison violators. [FN193]
The issue of "pirated" editions of works was a problem for printers in England. [FN194] A printer relied upon sales of his work to recoup his costs and make the enterprise profitable. If another printer published the same work and placed the books on the market before the earlier edition sold out, sales of the original edition might be diminished. Moreover, the second printer's preparation and printing costs could be substantially *397 reduced by virtue of the first edition. [FN195] A royal commission, recognizing the potential economic impact of an unregulated book trade, reported in 1583 "that the nature of bokes and printing is such, as it is not meete, nor can be without their vndoeinges of all sides, that sondrie men shold print one boke." [FN196] This concern was addressed by the Company which prohibited its members from printing a work when another member had registered the work on the Company's register. [FN197] The Company's earliest records show numerous fines for printing the works of other printers without permission. [FN198]
A third purpose for the Company was an anticompetitive one. Members of the Company wanted to control the industry and impose their own standards; they knew that stiff, unregulated competition was hurting their businesses. The Company, with its nearly exclusive arrangement and rules, could impose some stability by minimizing the proliferation of printers and imposing standards on the competition. In a letter dated 1583 to the Bishop of London, the Company wardens urged against the establishment of a new printing house at the University of Cambridge. They argued that such a press was "now less requisite than ever heretofore it was by reason of the abundance of [p]rinters already in [L]ondon." [FN199] In a subsequent letter written by the Bishop of London, he refers to the need to control the press, and he directs that orders "should be devised and taken for restraining the excessive number of printing presses." [FN200]
These early private copyrights could be transferred by sale, [FN201] gift, or inheritance. [FN202] The Company records document *398 numerous instances of assignments of these early copyrights. [FN203] These private copyrights were of unlimited duration, although the Company allowed publication of works out of print with payment of royalties to the owner of the copyright. [FN204]
Through the ensuing years, the Company exercised its powers and, with the willing assistance of the courts of the Star Chamber, conducted searches and seizures of unauthorized presses and publications. [FN205] During the sixteenth and early seventeenth centuries, the Star Chamber courts [FN206] were charged with enforcing the censorship laws. The Star Chamber's decrees enjoyed the force of law, and its deliberations and proceedings were conducted in secret, originally in a chamber with stars painted on the ceiling (hence the name Star Chamber). The Star Chamber, by its decrees of 1586 and 1637, reaffirmed the Company's powers and required the registration of works in the Company's books prior to publication. [FN207] These decrees are among the earliest English copyright laws. Professor Lyman Ray Patterson identifies the Star Chamber Decrees of 1586 and 1637, the Ordinances of 1643 and 1649, and the Licensing Act of 1662 as copyright acts predating the Statute of Anne in 1710. [FN208]
*399 Thus, the Company, with the assistance of the Star Chamber courts, achieved its goal of controlling the book trade. By the same means, the government, with the help of the Company, censored the press and limited dissemination of objectionable materials. [FN209] By the seventeenth century, however, the Company's monopoly power and unholy alliance with the Star Chamber courts became a political liability for the Company. In 1640, Parliament abolished the unpopular Star Chamber, [FN210] but the Company continued to enjoy monopoly power over the printing and book industries under a series of ordinances and the Licensing Act of 1662. [FN211] The Licensing Act required that all books be entered on the Company's register, [FN212] and books could not be printed without the consent of the copyright owner. [FN213] Under the Act, anyone building new printing presses or printing establishments had to give notice to the Company. [FN214] The Company also retained the power to search establishments and seize offending materials under the Act. [FN215]
The Licensing Act enjoyed a series of renewals until *400 1694, when Parliament refused to renew the Act. [FN216] This refusal was based in part on resentment of the bookselling monopoly that a few publishers had effectively obtained through control of the Company and purchase of major copyrights. [FN217] The House of Commons, in refusing to renew the Act, observed that the stationers were "impowered to hinder the printing [of] all innocent and useful Books; and have an Opportunity to enter a Title for themselves, and their Friends, for what belongs to, and is the Labour and Right of, others." [FN218] Moreover, the House of Commons objected to the Company's powers to block book imports which drove up prices and limited access to valuable books, [FN219] and objected to provisions allowing searches of "all mens houses" "any time either by day or night" upon suspicion "that there [were] unlicensed books there." [FN220] Finally, the House of Commons objected to the open- ended censorship provision which prohibited offensive books without defining which books qualified as offensive. [FN221]
The famous English philosopher John Locke, whose writings later strongly influenced the framers of the Constitution, was an important force in the defeat of the Licensing Act. [FN222] He opposed the Act and the stationers' perpetual copyrights. He strongly disliked the Stationers' Company and characterized the members as "dull wretches," [FN223] "lazy," and "ignorant." [FN224] His objections were multifaceted, but his primary concern was for free expression [FN225] and public access to works. *401 He objected "[t]hat any person or company should have patents for the sole printing of ancient authors is very unreasonable and injurious to learning." [FN226] Locke complained that under the Act, the Stationers' Company seized high quality imported books of classical authors, denying scholars the benefit of them unless they paid a fee. [FN227] Locke argued, at least as to classical authors,
I demand whether, if another act for printing should be made, it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have the liberty to print it; for by such titles as these, which lie dormant, and hinder others, many good books come quite to be lost. [FN228]
Locke opposed perpetual copyrights as both harmful and unreasonable, remarking,"of [t]his I am sure, it is very absurd and ridiculous that any one now living should pretend to have a propriety in, or a power to dispose of the propriety of any copy or writings of authors who lived before printing was known or used in Europe." [FN229] Locke also advocated limited duration copyrights for works of modern authors, and suggested that "it may be reasonable to limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years." [FN230]
The Company lobbied for many years to regain its monopoly powers and trade restrictions but was ultimately unsuccessful. [FN231] Although the Company did not succeed in recovering its former powers, its efforts resulted in the passage of the Statute of Anne in 1710, which imposed some regulation*402 on the book printing and selling trade and extended the term of existing copyrights for twenty-one years.
III. Statute of Anne
A. An Act for the Encouragement of Learning
The Statute of Anne, enacted in 1710, [FN232] is often referred to as the first English copyright statute [FN233] and is the direct progenitor of American copyright law. The Statute of Anne differed from the Star Chamber Decrees, Ordinances of the Interregnum, and the Licensing Act in that it was neither a censorship law nor defined by efforts to impose censorship--it was a trade regulation law.
The failure to include censorship provisions in the Statute likely was not a concern for the stationers. In the past, they had used the government's desire to impose censorship to achieve their own objectives of monopoly control and preservation of valuable copyrights. The stationers were concerned about these objectives of monopoly power and the protection of valuable copyrights when they lobbied for a new statute to replace the Licensing Act. On December 12, 1709, in submitting their bill to the House of Commons, the booksellers and printers complained that "diverse Persons have of late invaded the Properties of others, by reprinting several Books, without the Consent, and to the great Injury, of the Proprietors, even to their utter Ruin, and the Discouragement of all Writers in any useful Part of Learning." [FN234]
In the political climate of the times, censorship was unpopular *403 with Parliament and would no longer serve as a vehicle for the Company's control. [FN235] The stationers then began to advocate the need for new protections unrelated to censorship relying in part on the interests of authors as a justification. [FN236] The stationers, however, did not by any means attempt to hide their own self-interest in advocating for new protections; they wanted to protect what they considered to be their property rights in valuable "Copies" which they had acquired from authors. [FN237]
The Statute itself had one stated overarching purpose: the encouragement of learning. In its title the statute identifies both the purpose and the means of achieving that purpose, describing it as: "An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned." [FN238] In order to achieve the stated goal of encouragement of learning, the Statute had to address two problems; first, the injury caused by infringers who pirated works, and second, the anticompetitive monopolies of the publishers and booksellers. The Statute of Anne itself specifically identified the first of these problems in its introductory lines:
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 *404 practices for the future, and for the encouragement of learned men to compose and write useful books . . . . [FN239] The second of these problems, the anticompetitive monopolies, is not specifically identified in the Statute but is directly addressed by its provisions. [FN240]
To attack the problem of piracy of works, the Statute of Anne adopted a philosophical shift from the prior stationers' copyright to the author's statutory copyright. Mark Rose, in his book Authors and Owners: The Invention of Copyrights, explains the situation of authors prior to the Statute of Anne:
In the seventeenth century, then, there may have been some feeling that authors should have the right to control the first publication of their writings. But in England at any rate no clearly defined set of authorial rights existed, and English authors had no obvious form of redress if books were published without their permission. [FN241]
Just prior to the adoption of the Statute of Anne, prominent writers like Daniel Defoe [FN242] and Joseph Addison [FN243] urged this philosophical embrace of authors' rights. [FN244] Defoe advocated for statutory protection of authors' rights. [FN245] In his view, an author's book or writing was his property. "A Book is an Author's Property, 'tis the Child or his Inventions, the Brat of his Brain; if he sells his Property, it then becomes the Right of the Purchaser . . . ." [FN246] Defoe lamented the problem of literary piracy and concluded that an act of Parliament was needed "so Property of Copies may be secur'd to Laborious Students, to the Encouragement of Letters and all useful *405 Studies." [FN247] Concerning one effort prior to the Statute of Anne to secure protection for copyrights, in a letter dated March 25, 1707, Defoe wrote to Secretary of State Robert Harley: [FN248] "I hear the Bill for Secureing the Right of printed Coppyes is stopt. I beg of you Sir in your Respect to Encouragemt of Letters and Dilligence in Learning to give it your help." [FN249] Again in 1709, just prior to the adoption of the Statute of Anne, Defoe wrote of the public benefit that would come from protection of authors' rights. [FN250] He claimed that failure to protect authors' rights resulted in "a Discouragement to Industry, a Dishonour to Learning, and a Cheat upon the whole Nation." [FN251] Defoe explained that if, because of a lack of copyright protection, authors are unable to make money through sale or publication of their works, then authors have a disincentive to publish, and both the authors and the buying public are cheated. [FN252]
His interest in the protection of authors' rights was quite personal. Defoe complained of "pirate printers" who abridged, corrupted, and reprinted everything he wrote. [FN253] In 1703, two pirated editions of one of Defoe's works were published and according to Defoe, cost him £1,500. [FN254] Defoe complained that as soon as an author publishes his work, a "raskally [f]ellow" buys it, reprints it, and undersells the original edition. [FN255] He objected that "[t]his is down-right robbing on the High-way, *406 or cutting a Purse" and "is a Ruin to Trade, [and] a Discouragement to Learning." [FN256]
Defoe argued for the Statute of Anne and applauded its impact. [FN257] In 1712, he made reference to copyrights "which are estates to many families, and to preserve which right from piracy and invasion, a very just and necessary law was made last Parliament, the advantage of which is happily found in many cases since." [FN258]
The writer and statesman Joseph Addison [FN259] also called for protection of authors' rights. He lamented that an author "has no Property in what he is willing to produce, but is exposed to Robbery and Want, with this melancholy and just Reflection, That he is the only Man who is not protected by his Country, at the same Time that he best deserves it." [FN260] Addison decried the conduct of literary pirates whom he characterized as "rogues within the law," "miscreants," "wretches," "rascals, plunderers, robbers, [and] highwaymen." [FN261] These pirates, he explained, "print any Book, Poem, or Sermon, as soon as it appears in the World, in a smaller Volume, and sell it (as all other Thieves do stolen Goods) at a cheaper Rate." [FN262] In discussing one author, Addison compared the author's brain to other men's land: "His Brain, which is his Estate, had a regular and different Produce as other Men's Land." [FN263] Addison supported the Statute of Anne and argued for recognition of authors' rights as property to be protected from infringers. [FN264]
*407 The stationers also recognized that protection of authors' copyrights--and by extension their own valuable copyrights--would serve an important public interest. Piracy of literature injured the proprietors of "copies" and resulted in "the Discouragement of all Writers in any useful Part of Learning." [FN265] The booksellers argued that without protection of copyrights, the book trade would be ruined and the public would suffer accordingly. [FN266]
The Statute of Anne is significant for its recognition of copyright as an author's right and for opening up the copyright registration process to nonmembers of the Company. [FN267] The stationers' copyright was primarily a printer's right, and in fact only members of the Company could obtain them. Authors, as such, did not qualify for membership in the Company and technically were not entitled to hold the stationers' copyrights. [FN268] There were isolated instances of authors who received copyrights for their own works and other instances of members of the Company who recorded the copyrights on behalf of non-members of the Company, [FN269] but this avenue was not available to authors as a matter of right. The Statute of Anne changed all that.
Under the Statute, authors of books or other writings not already under existing stationers' copyrights [FN270] and their assignees had "the sole liberty of printing and reprinting" their books and anyone who printed such works or sold infringing books without consent violated the Statute. [FN271] Furthermore, the Statute required entry of the title of the protected books in the register book of the Company. The register book was *408 required to be available to any person for inspection. If the clerk of the Company refused to make an entry, an author or other owner of the copy could achieve the same result by advertisement in the Gazette and the clerk would be fined. [FN272] In a further significant development, the Statute returned a copyright to the author, if living, upon the expiration of the initial fourteen-year term for a second fourteen-year term. [FN273] By shifting the focus of copyright to authors, and opening the process to authors (and others who might receive copyrights from authors), the Statute of Anne addressed authors' concerns about piracy.
The second problem, that of booksellers' monopoly power, is addressed by the Statute in several ways. First, it opened up ownership and registration of copyrights to nonmembers of the Company. [FN274] Second, it required access to the Company's register book by any person with a legitimate purpose. [FN275] Third, it allowed challenges to unreasonably high prices for books and permitted specified authorities to "reform or redress" the price "according to the best of their judgments." [FN276] Fourth, it required the deposit of nine copies of each work for use in specified national libraries. [FN277] Fifth, it expressly stated that the Statute did not prohibit importation or sale of books in Greek, Latin, or other foreign languages published abroad. [FN278] Finally, it provided that after the initial term of the copyright, the copyright returned to the author for an additional term. [FN279]
The Statute also attacked monopolies by limiting the term of copyrights. Existing stationers' copyrights would be enforceable for twenty-one years "and no longer." [FN280] Unpublished books or books composed after the Statute would enjoy a copyright term of fourteen years "and no longer," commencing *409 at first publication, [FN281] with an additional fourteen-year term for the author if the author was then living. [FN282] The added emphatic words "and no longer," make clear the Statute's intent that copyright terms be finite. The Statute intended ultimately to end existing copyrights, and limit the duration of future copyrights. The limited terms under the Statute contrasted with the perpetual term enjoyed under stationers' copyrights would free up works for general use in the future.
The important point is this: the Statute of Anne, the ancestor of American copyright law, had as its foremost objective the encouragement of learning--a general public interest--not the private economic interests of authors, printers, or publishers. [FN283] It did have a secondary interest for the economic security of authors and other proprietors of books and writings, but this secondary concern was driven by the impact that the void of regulation had upon the creation of "useful books." [FN284]
The public benefit objective is indicated by the language of the Statute and by its design. Its title begins that it is "an Act for the Encouragement of Learning." [FN285] Its statement of purpose announces that it was "for the encouragement of learned men to compose and write useful books." [FN286] Its term of years and emphatic language "and no longer," [FN287] limited the term of copyrights. After expiration of the statutory copyright, the work entered the public domain and was available to others. [FN288] Its provisions made copyright available to authors and other proprietors of books and otherwise undermined the stationers' monopoly.
Removing obstacles to publication served the public purpose *410 of generating more works for public use. This was accomplished by opening up the copyright registration process and by requiring open access to the records. The open records helped to avoid innocent infringement and to facilitate obtaining permission to publish from copyright owners, while the Statute's price control provisions, at least in theory, [FN289] protected consumers from price gouging and made works more available to consumers. The deposit requirements for national libraries allowed access to the works by scholars and others. Also, the import provision made clear that, unlike the expired Licensing Act and prior laws, the Statute was not intended to block book imports.
As with virtually all legislation, there may have been other unspoken motives and purposes for the statute in the minds of some of its proponents. Nonetheless, there is no reason to assume that the statute's authors and supporters did not mean what they said nor intend the result that followed. Indeed, many of these public policy concerns--a desire to end monopolies and increase availability of printed works--were also the basis of the rejection of the Licensing Act several years earlier. [FN290]
One early source from 1735 reported that the Statute of Anne had the desired public interest results of encouraging learning and economic activity:
By this Act, learned Men have been incited to write and compile many Books, from whence the Publick has not only received the Advantages arising from useful Knowledge, but has laid the Foundation of a Property now become very valuable, and of a Manufacture which employs great Number of Hands, and is attended with many Advantages. [FN291]
*411 B. Common Law Copyright: We Never Knew You
1. The Concept of Common Law Copyright
The stationers and, in particular, those owners of stationers' copyrights found a temporary reprieve in the Statute of Anne, which reaffirmed and extended the terms of valuable extant non-statutory stationers' copyrights for a term of twenty-one years "and no longer." [FN292] After the dust settled and as the new statutory terms for copyrights began to run out, copyright owners (primarily booksellers) continued their battle to extend copyright protection. Their theory was that in addition to the limited-term statutory copyright afforded by the Statute of Anne, authors, and more importantly, their assignees possessed enforceable common law copyrights in perpetuity.
Legal scholars and historians have long debated whether a separate common law copyright, distinct from the Statute of Anne, existed in eighteenth-century England. [FN293] To get to the bottom of this debate, the meaning of common law copyright must be understood. A common law right is a right based on general or local customs rather than written law. These common law rights were rooted in custom or usage, enforced or "discovered" by common law courts, and revealed in reported judicial decisions. [FN294] According to one nineteenth century treatise on the laws of England, common law rights "receive [d] their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom." [FN295] The custom giving rise to the common law right must be ancient; "[T]he goodness of a custom depends upon its having been used time out of mind . . . time whereof the memory of man runneth not to the contrary." [FN296]
*412 Common law copyright in the context of this debate is not what modern copyright lawyers have typically referred to as common law copyrights. Prior to the 1976 Copyright Act, courts and lawyers recognized common law copyright as the copyright that attached to an author's work at the time of the work's creation but prior to its general publication. [FN297] Statutory copyright did not attach until general publication of the work. [FN298] Exercising their common law copyrights, authors could prevent appropriation or unauthorized publication of their works indefinitely so long as federal statutory copyright protection did not attach. [FN299] The 1976 Copyright Act altered the earlier copyright law scheme and no longer required publication. Instead, federal statutory copyright attached upon creation, [FN300] which required fixation in a tangible medium of expression. [FN301] The 1976 Copyright Act specifically preempted common law rights for works that fell within the Act's scope. [FN302] Common law copyright continues to hold a place under the 1976 Act [FN303] but that place is a small one claiming dominion only over works that remain unfixed. [FN304]
Protection for unpublished manuscripts was not the perpetual common law copyright intended by the stationers of the eighteenth century. [FN305] Their concern was perpetual common *413 law copyright affording control of a work beyond publication and beyond the Statute of Anne's provided term. [FN306]
2. Rejection of Common Law Copyright in Great Britain
Perhaps the first hint of an argument for the existence of common law copyrights came from arguments made by booksellers pressing for legislation in 1710. According to John Feather, the booksellers argued that their version of the copyright bill confirmed common law rights but maintained that common law rights were insufficient. [FN307] In 1735, in an effort to extend the term of the Statute of Anne, sponsors of the Bill argued that before the Statute of Anne, "Authors were deemed to have an absolute Right in their Composions . . . to be preserved to Themselves and their Assignes," and cited for support the fact that the "eminent Lawyer, the late Lord Chief Justice Coke, [ ] by his Will devised to his Posterity the Right of Reprinting all the Books which he wrote." [FN308]
Professor Howard Abrams argues persuasively that no common law copyright existed prior to the Statute of Anne. [FN309] He contends that no precedent prior to the Statute of Anne recognized common law copyright aside from unreported, uncontested ex parte chancery cases granting preliminary injunctions. [FN310]
In 1769, Millar v. Taylor became the first case to face the issue squarely and recognize common law copyright in published works. [FN311] The issue of perpetual common law copyright had been presented earlier in Tonson v. Collins, [FN312] but Tonson was never decided. At issue in Tonson was the defendant's publication of Joseph Addison and Richard Steele's Spectator, *414 first published in 1711. [FN313] The judges refused to proceed with the case after they discovered that the parties had colluded in an effort to obtain precedent supporting common law copyright. Justice Willes in Millar explained:
[U]pon certain informations received by the Judges, "that the whole was a collusion; that the defendant was nominal only; and the whole expence [sic] paid by the plaintiff;" they refused to proceed in the cause . . . . They thought, this contrivance to get a collusive judgment was an attempt of a dangerous example, and therefore to be discouraged. [FN314] In Tonson v. Collins, no less than Sir William Blackstone himself argued the case for the plaintiff, and Yates argued for the defendant. [FN315]
The holding in Millar v. Taylor recognized a perpetual common law copyright, but the holding was only a short-lived victory for the proponents of common law copyright. In Donaldson v. Beckett, decided just a few years later in 1774, the House of Lords reversed the lower courts and overruled Millar. [FN316] The ultimate holding and rationale of Donaldson is obscure as a result of the appellate process and practices of the time. The case was finally decided by a vote in the House of Lords following non-binding advisory opinions written by eleven judges from the courts of Common Pleas, Exchequer, and King's Bench. According to Professor Abrams, the opinions of the judges were erroneously cited in America as controlling, and on top of that, the opinions were misunderstood and misreported. [FN317] These American courts and authorities incorrectly understood the opinions to find, based on a 6-5 split, that a perpetual copyright at common law existed but was preempted by the Statute of Anne. [FN318] Professor Abrams *415 concludes that a majority of the judges supported the existence of common law copyright and did not believe that the Statute of Anne preempted the right. [FN319] Accounts of the debate in the House of Lords prior to its vote, however, reveal the Lords' strong antipathy to the existence of perpetual common law copyright. [FN320]
Defoe, an author and supporter of the Statute of Anne, did not acknowledge any kind of enforceable recognized common law right that predated the Statute of Anne. In urging the need for a statute he makes clear his view that there was no remedy available in England to authors whose works were pirated. He did not complain about limited but ineffective common law protection; he gave no hint of any existing remedies. In 1709, he wrote concerning "the open Robberies and Depredations of Printers and Pyratic Booksellers":
In a well govern'd Nation as this is, it was never known, that open Robbery should be allow'd . . . . without any Punishment . . . . When in this Case a Man has his Goods stollen, his Pocket pick'd, his Estate ruin'd, his Prospect of Advantage ravish'd from him, after infinite Labour, Study, and Expence, and has no Remedy, no Justice to fly to--no Court to have Satisfaction in, nor any Method to prevent it . . . . [FN321]
Blackstone, in his first edition of Commentaries on the Laws of England in 1766, acknowledged that there was no "direct determination upon the right of authors at the common law." [FN322] Citing decisions from chancery courts and legislative recognition of copyrights, Blackstone favored the existence of common law copyright. [FN323] His favorable disposition *416 was no surprise because Blackstone was legal counsel for the plaintiffs in both Tonson and Millar, in which he argued for the existence of common law copyright. [FN324] By the time the Donaldson decision was rendered, Blackstone was a justice on the Court of Common Pleas, and he issued an opinion supporting the existence of common law copyright. [FN325] In later editions of the Commentaries, Blackstone acknowledged the holdings in Millar and Donaldson. [FN326]
Whatever may have been the case prior to the Statute of Anne, after the 1774 ruling of the House of Lords in Donaldson v. Beckett, it was settled that the Statute of Anne had preempted such a common law right, if it ever had existed. [FN327]
IV. Understanding of Copyright in the United States During the Eighteenth Century
A. The Copyright Clause of the Constitution
1. Early State Copyright Laws
In 1783 in the United States, various states began to pass copyright laws [FN328] due in large part to the efforts of Noah Webster [FN329] and other like-minded individuals. [FN330] The Continental *417 Congress encouraged the process. In a letter to the President of Congress dated January 10, 1783, Joel Barlow, [FN331] Webster's classmate at Yale, friend and fellow author, urged the Congress to encourage the states to pass copyright legislation. [FN332] In his letter, Barlow relied upon the public benefit rationale; he maintained that copyright was "a subject in which . . . the interest & honor of the Public is very much concerned." [FN333] He referred to the need to provide "encouragement" "to the exertions of genius" to "dignify the manners of a nation." [FN334] But Barlow also strongly relied upon the property right view. "There is certainly no kind of property . . . so much his own, as the works which a person originates from his creative imagination . . . it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works . . . ." [FN335]
The Continental Congress complied with Barlow's request. According to its own record, the Continental Congress was prompted to action by "sundry papers and memorials from different persons." [FN336] With the active support and participation of James Madison, on May 2, 1783, the Continental Congress adopted a resolution which "recommended" that the individual states enact laws to protect copyrights for not less than fourteen years. [FN337] James Madison also helped Webster *418 obtain passage of copyright legislation in Virginia. [FN338] Between 1783 and 1786, twelve of the states adopted copyright statutes; only Delaware did not. [FN339]
The terms of the copyrights granted by the states varied. Seven states provided for two fourteen-year terms; [FN340] North Carolina provided for one fourteen-year term; [FN341] New Hampshire provided for one twenty-year term; [FN342] and three states provided for one twenty-one-year term. [FN343] The statutes of Maryland and Pennsylvania were only to become effective after all states had passed similar copyright laws. [FN344] Several states refused to extend protection to citizens of other states if the citizen's home state did not provide similar copyright protections. [FN345] Most of the statutes required registration of the copyright with an appropriate designated state authority. [FN346]
The state copyright statutes generally recognized two interests promoted by copyright law: the personal property interest of authors and the public interest of the advancement of learning. The first copyright act in the United States was passed by the state of Connecticut in January 1783 and stated:
Whereas it is perfectly agreeable to the principles of natural*419 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. [FN347] Similarly, the preamble to the North Carolina statute acknowledged both interests as follows:
Whereas nothing is more strictly a man's own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of reward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce:
1. Be it enacted . . . . [FN348] In short, these laws acknowledged that authors had the right to benefit from their creations (the property rationale), but also recognized that protecting this right would advance the public good by encouraging creation of works (the public benefit rationale).
As with so many issues under the Articles of Confederation, the problem with implementing copyright protection on the state level was the resulting lack of uniformity between the various state laws with the attendant risks of eviscerating the value of the copyrights. James Madison wrote in The *420 Federalist No. 43 that the Copyright Clause was necessary because the "states cannot separately make effectual provision" for copyright protection. [FN349] In the words of Justice Story:
It was beneficial to all parties, that the national government should possess this power; to authors . . . because, otherwise, they would be subjected to the varying laws and systems of the different states on this subject, which would impair, and might even destroy the value of their rights . . . . [FN350]
2. The Copyright Clause--To Promote the Progress of Science
Against the backdrop of the state copyright laws and concern for the need of uniform laws, the framers in 1787 included in the Constitution Article I, section 8, which states in relevant part that "[t]he 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." [FN351] This language was unanimously approved without debate at the Constitutional Convention.
Relatively little is known about the details of how the particular language was drafted or came to be included in the *421 Constitution, but there is no doubt that James Madison played an important--if not the most important--role in its drafting and inclusion. [FN352] By the time of the framing of the Constitution, Madison was no stranger to copyright law. Noah Webster first met Madison in 1782 and suggested the idea of copyright legislation. [FN353] At that meeting, Webster presented his manuscript of A Grammatical Institute of the English Language to Madison for his review, and Madison approved of the idea for copyright legislation. [FN354] In 1783, Madison, as a member of Congress, was part of the three-member committee whose report brought the resolution calling for state copyright protection. [FN355] Shortly thereafter, in 1785, Madison actively participated in drafting and passing copyright legislation in the Virginia Legislature. [FN356]
*422 In April 1787, just prior to the Constitutional Convention, Madison commented on the weaknesses of the Confederation and noted, among other things, "the want of uniformity in the laws concerning naturalization and literary property." [FN357] The Constitutional Convention first met to begin its work on May 14, 1787. [FN358] During the course of the Constitutional Convention, Webster and Madison met socially. [FN359] On August 18, 1787, James Madison proposed that the Constitution grant the legislature power "[t]o secure to literary authors their copyrights for a limited time." [FN360] On the same day, Charles Pinckney also proposed to include the power "[t]o secure to Authors exclusive rights for a certain time." [FN361] These proposals were initially referred to the Committee of Detail. Later, on August 31, 1787, the Committee of Eleven, which included Madison, was appointed to consider convention items postponed or not yet acted on. [FN362] The Committee of Eleven, on September 5, 1787, reported the language of the Copyright Clause now included in the Constitution, and the language was agreed to unanimously. [FN363] The Copyright Clause does enjoy some similarity with the Continental Congress's resolution and the Virginia copyright act, both of which Madison participated in drafting. [FN364] The resolution encouraged states "to secure to the authors . . . the copy *423 right . . . for a certain time . . . ." [FN365] The Virginia legislation was entitled "An Act securing to the authors of literary works an exclusive property therein for a limited time." [FN366]
B. The Public Benefit Rationale for Copyright Protection and the Rejection of Perpetual Common Law Copyright
1. Language and Intent of the Copyright Clause
The Constitution adopted the utilitarian, public benefit rationale for copyright protection over the property right rationale. Some have argued that the use of the word "securing" in the Copyright Clause suggests recognition and confirmation of a preexisting common law right. [FN367] This argument was posed to, and rejected by, the Supreme Court in 1834 in Wheaton v. Peters. [FN368] The Court noted that the word referred to inventors as well as authors, and undisputedly inventors had no common law claim. [FN369] "Securing" in the eighteenth century had multiple meanings, including not only to assure or make certain but also to obtain or provide. [FN370]
Although there is sparse extrinsic evidence concerning the framers' understanding of the Copyright Clause or their intent in including the clause, Madison did reveal his understanding of the Copyright Clause. In The Federalist No. 43, [FN371] published on January 23, 1788, Madison wrote:
The utility of this power will scarcely be questioned. The copy-right of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. *424 The public good fully coincides in both cases with the claims of individuals. [FN372]
Madison's reference to the common law right accepted in Great Britain is confusing because in fact, as noted earlier, the House of Lords in Donaldson v. Beckett [FN373] in 1774 rejected perpetual common law copyright. [FN374] Madison may have been referring to the earlier (overruled) decision in Millar v. Taylor [FN375] or may have reflected a misunderstanding of the holding of Donaldson, possibly arising from the advisory judicial decisions offered in the case. [FN376] Perhaps Madison was referring to the common law right of first publication. [FN377] In any event, Madison recognized the "utility" of this provision and the harmony of the "public good" with "the claims of individuals." [FN378] Madison's other writings clarify that he did not believe in perpetual common law copyrights rooted in the natural law rights of authors. In a letter, dated October 17, 1788, Madison responded to Thomas Jefferson's objection [FN379] to even the limited monopoly of copyright:
With regard to Monopolies they are justly classed among the greatest nusances [sic] in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be *425 specified in the grant of it? [FN380] Madison reluctantly supported the limited monopoly of copyright in order to encourage the creation of literary works. Copyright was a "grant" and a "privilege" bestowed by the government. The words "grant" and "privilege" support a positive law theory of copyright and are inconsistent with an inherent property right theory. [FN381]
Madison on another occasion characterized copyright as a "grant" when he warned that monopolies "ought to be granted with caution" and stated:
The Constitution of the United States has limited [monopolies] to two cases--the authors of Books, and of useful inventions, in both [of] which they are considered as compensation for a benefit actually gained to the community as a purchase of property which the owners might otherwise withhold from public use. There can be no just objection to temporary monopolies in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given. [FN382] Madison consistently viewed copyright as a grant of a limited monopoly, which served an important public purpose. This limited monopoly was acceptable because it was for a limited time and not perpetual. [FN383] This passage also reveals Madison's recognition that authors had property rights in their works prior to the publication of those works; the monopoly was a purchase of the author's property to encourage its release to the public. Thomas Jefferson [FN384] in his correspondence *426 with Madison unambiguously expressed his dim view of even limited duration copyrights, which he viewed as monopolies. [FN385]
Noah Webster, on the other hand, supported perpetual copyright and adhered to the private property rationale for copyright protection. [FN386] Yet he too understood that there was no recognized perpetual common law copyright in America. In 1783, Webster, in advocating for copyright legislation, acknowledged that no protection existed for copyright interests in the United States. In his request to the legislature of New York, he wrote that copyright legislation was needed "to secure to your petitioner the benefits of his own labors to which he conceives himself solely entitled but which are not protected by the laws that protect every other species of property." [FN387] Webster understood that he could not rely upon a theory of common law copyright protection for his work.
Later, in 1803, Webster argued that the interest in original literary works should be no different than all other personal property. [FN388] He disagreed with the holding of Donaldson v. Beckett, but he understood that his own view was not generally *427 accepted. [FN389] He wrote: "Men are strangely influenced by habits of thinking, and it is a common opinion that literary composition . . . should be held only for a limited time, while a horse or an acre of land . . . is permanent inheritable estate." [FN390] Webster understood that the "limited times" language of the Copyright Clause was inconsistent with a natural right property theory of copyright protection. Again in an 1826 letter, he reluctantly admitted that since Donaldson "it seems to have been generally admitted that an author has not a permanent and exclusive right to the publication of his original works at common law." [FN391]
The legal authorities of the early nineteenth century also recognized the public benefit purpose behind copyright law. Legal scholar and Supreme Court Justice Joseph Story perceived the public benefit of copyright protection as both the inducement to prepare works and the public benefit of "full possession and enjoyment," "without restraint," after the expiration of the copyright. [FN392] Story did, however, accept the view that copyright had a common law origin. [FN393]
2. The Copyright Act of 1790
The first Congress enacted America's first national copyright act in 1790. [FN394] The Act, like the Copyright Clause and the Statute of Anne before it, emphasized the public benefit rationale for copyright protection. The Act was entitled: "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." [FN395] If the property right rationale were controlling, a different title would have been expected. For example, titles such as "An *428 Act for the protection of authors and proprietors of copies, to secure to them their property in maps, charts, and books" or "An Act for securing property of authors and proprietors of copies in their maps, charts, and books" would be more consistent with a property right rationale. But protecting property rights of authors and their successors was not Congress's primary objective.
The Copyright Act of 1790 does assume the existence of copyrights prior to the Act. It granted protection to an author who had "not transferred to any other person the copyright" of a map, chart, or book, and to others who had "purchased or legally acquired the copyright of any such map, chart, book or books." [FN396] This language, as Walterscheid points out, "suggests a perception by Congress that it was not creating a right but rather affirming and protecting an existing right." [FN397] In Wheaton v. Peters, counsel made this argument to the Supreme Court:
The import of the act of congress of 1790 is, that before its enactment, there were legal rights of authorship existing; it provides for existing property, not for property created by the statute. There is nothing for its provision to stand upon, but the common law. The law is not one of grant or bounty; it recognizes existing rights, which it secures. [FN398] The Supreme Court rejected the argument, holding that the reference to subsisting copyrights referred to the common law property right in the manuscript. [FN399] The Court further concluded that Congress, by providing that authors "shall have the sole right and liberty of printing," was clearly not recognizing an existing right. "Could [Congress] have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words [used] . . . ." [FN400] These subsisting copyrights *429 may have been the common law right of first publication as suggested by the Court in Wheaton, or it may have referred to copyrights granted under state copyright statutes. [FN401] Admittedly, it may have referred to perceived common law copyrights. [FN402]
3. Supreme Court Recognition of the Public Benefit Rationale of Copyright
From early on, the Supreme Court has recognized the public benefit rationale for copyright protection and has rejected a natural law property right rationale and its close relative, perpetual post-publication common law copyright. The landmark copyright case Wheaton v. Peters [FN403] laid the groundwork. Wheaton involved a dispute over, of all things, twelve volumes of reported United States Supreme Court cases ("Wheaton's Reports"). [FN404] Henry Wheaton, a Supreme Court reporter, and his copyright successor complained that Richard Peters infringed the plaintiffs' copyright by copying decisions from Wheaton's Reports and including them in his volume "Condensed Reports of Cases in the Supreme Court of the United States." [FN405] Defendants in the case argued that the plaintiffs had no valid copyright because the plaintiffs had not complied with the requirements of the copyright statute, and the lower court dismissed the complaint. [FN406]
Counsel for Wheaton argued that a common law perpetual copyright existed concurrently with statutory copyright. [FN407] The Court confirmed that an author has at common law a property interest in an unpublished manuscript, but found that the existence of common law post-publication perpetual copyright in England was "by no means free from doubt." [FN408] At a minimum, the Court found that no common law copyright existed in England when Pennsylvania became a colony and doubted that such a concept could have been incorporated *430 into the laws of Pennsylvania. [FN409] In rejecting common law copyright, the Court concluded that "Congress, then, by [the 1790 Act], instead of sanctioning an existing right . . . created it." [FN410] The Court held that the plaintiffs' claim, if any, had to be brought under statutory copyright. [FN411] Over a century later, the Court in Mazer v. Stein [FN412] reaffirmed the holding of Wheaton when it held Congress's statutes create copyright. "It did not exist at common law even though he had a property right in his unpublished work." [FN413]
In a long line of cases the Supreme Court has recognized that under the Constitution, the primary objective of copyright protection is not to reward authors but to benefit the public by encouraging the production of works. [FN414] Lower *431 courts, particularly the influential Second Circuit, [FN415] have followed the Supreme Court's lead. [FN416] In the words of Justice Stevens in Sony Corp. v. Universal City Studios, Inc.:
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. [FN417]
The Court acknowledged that the grant of copyright protection to authors is a means to achieve "an important public purpose." [FN418]
The Court's latest pronouncements in Eldred v. Ashcroft continue to acknowledge the utilitarian public benefit rationale for copyright protection; "[t]he 'constitutional command,' we have recognized, is that Congress, to the extent it enacts copyright laws at all, create[s] a 'system' that 'promote[s] the Progress of Science."' [FN419] In Eldred, however, the Court did step back from its prior statements. In a curious footnote, the Court criticized Justice Stevens' citation in his dissent of the Court's own prior cases: "Justice Stevens' characterization of reward to the author as 'a secondary consideration' of copyright law, understates the relationship between such rewards *432 and the 'Progress of Science."' [FN420] The Court specifically cites footnote four of Justice Stevens' dissent, a footnote which consists entirely of a quotation to the Court's own opinion in United States v. Paramount Pictures, Inc . [FN421] Only twelve years earlier in Feist Publications, Inc. v. Rural Telephone Service Co., [FN422] the Court confirmed that "[t]he primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts."' [FN423] Both Paramount Pictures and Mazer v. Stein had unambiguously held that "[t]he copyright law . . . makes reward to the owner a secondary consideration." [FN424] Justice Stevens can hardly be faulted for relying on the Court's precedent.
In the same footnote, the Court criticized Justice Breyer's dissenting view "that 'copyright statutes must serve public, not private, ends."' [FN425] That "assertion," according to the Court "misses the mark," because "[t]he two ends are not mutually exclusive." [FN426] Whether or not Justice Breyer missed the mark, he did correctly state what had theretofore been the law based on the Copyright Clause, the Court's prior cases, and other authorities. [FN427] Even in light of the Court's unhappy footnote, the Court did continue to recognize the public benefit rationale for copyright protection that has consistently been a beacon for its prior cases. [FN428]
4. Congressional Recognition of the Public Benefit Purpose of Copyright
The Court's view of the purpose of copyright is in harmony with what has historically been Congress's understanding *433 of copyright. [FN429] In a House committee report from 1830, the Committee on the Judiciary urged for copyright legislation lengthening the term of copyright protection. The report argued that "the United States ought to be foremost among nations in encouraging science and literature, by securing the fruits of intellectual labor," but concluded that the United States was far behind Europe. [FN430] The committee appreciated the connection between strong copyright protection and the production of works; it urged that "[w]e ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science." [FN431] The report also reflected the influence of the property right rationale for copyright. [FN432] In a confusing run-on sentence, the report stated as fact that "[i]n England, the right of an author to the exclusive and perpetual profits of his book was enjoyed, and never questioned, until it was decided by Parliament . . . that the statute of Anne had abridged the common law right, which it conceded, had existed . . . ." [FN433]
As noted earlier, whatever may have been Congress's impression in 1830, there had been substantial doubt about the *434 existence of post- publication common law copyright, and furthermore, the House of Lords in Donaldson v. Beckett in fact did not concede its pre-Statute of Anne existence. [FN434] The report also specifically cited the 1769 ruling in Millar v. Taylor and confused it with the later ruling in Donaldson.