The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . . [FN1]

a. patent custom and practice
It is not certain when the first English patents of monopoly were granted, but the English patent custom took root and flourished during the reign of Elizabeth I. Commencing in 1561 and continuing through 1600, she granted at least 55 patents of monopoly for industries and inventions. [FN20] Unfortunately, she also granted "odious monopolies," i.e., those in restraint of a known trade or industry. Moreover, at least certain of her grants of monopoly came to be used to control settled trades and thereby came to be perceived as "odious monopolies." [FN21]
Early in Elizabeth's reign a concept developed that stated the crown had the duty and obligation to regulate trade and commerce in such a way as to favor the creation of new industries and trades. The crown was sufficiently pragmatic to realize that the costs and risks associated with the introduction of a new trade or industry required a substantial economic return to those taking such risks and incurring such expenses without at the same time resulting in a substantial cost to the state. In the impecunious and parsimonious*322

(Cite as: 7 J. Intell. Prop. L. 315, *322 )

nature of the times, the grant of a patent monopoly for a limited period held itself out as the most appropriate incentive to be offered by the crown. [FN22]
It was perhaps inevitable that the granting of monopoly patents would produce significant problems. But it was not until November 1601 that Parliament began debating a bill entitled "An Act for the Explanation of the Common Law in Certain Cases of Letters Patent" and in so doing created a grave constitutional crisis. At issue was the power of the royal prerogative under which the patents, including those for the so-called "odious monopolies," had issued. The last thing the crown wanted was parliamentary enactment in this regard. Accordingly, in a brilliant political move, Elizabeth agreed that if the bill 

(Cite as: 7 J. Intell. Prop. L. 315, *322)

was withdrawn, she would agree to submit her patent grants to "a Tryal according to law for the good of the people." [FN23]
Parliament quickly agreed, and, as a result, the common law would be called upon to settle a sensitive constitutional issue vital to the commerce of the country. The denouement came in 1602 in the celebrated case of Darcy v. Allin, also known as The Case on Monopolies. This case involved the monopoly patent on the importation, manufacture, or sale, in gross or retail, of playing cards in England which had existed in one form or another since 1576.
In the context of the patent law, Darcy v. Allin is remembered not for the literal ruling therein, but rather for the opinions expressed on the monopoly right and the argument relating to invention and monopoly right. Monopoly was stated to be prima facie against the common law, the statute law, and the liberty of the subject because it damages not only those working in the trade but all other subjects of the realm as well by raising prices, reducing merchantability, and reducing employment. [FN24] These were strong words, but a critical exception was admitted by counsel for Allin, namely,
. . . the [j]udges have heretofore allowed of monopoly patents, which is, that where any man by his own charge and industry, or by his own wit or invention doth bring any new trade into the realm, or any engine tending to the *323

(Cite as: 7 J. Intell. Prop. L. 315, *323)

furtherance of a trade that never was used before: and that for the good of the realm: that in such cases the King may grant to him a monopoly patent for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth by bringing his invention to the commonwealth (emphasis supplied): otherwise not. [FN25]
In The Clothworkers of Ipswich, [FN26] decided in 1615, the court would speak favorably of this exception.
Darcy v. Allin is of considerable interest in the context of the present work because it indicated that a monopoly patent for invention was proper, provided that the term of the patent was "for some reasonable time." [FN27] The opinion also seemed rather to indicate rather clearly that this "reasonable time" was dependent upon the time it took until other "subjects may learn the same." [FN28] The Clothworkers of Ipswich added an additional premise, however, saying the following:
But if a man hath brought in a new invention and a new trade within the kingdom, in peril of his life, and consumption of his estate or stock, &c. or if a man hath made a new discovery of any thing, in such cases the King of his grace and favour, in recompence of his costs and travail, may grant a charter unto him, that he only shall use such a trade or trafique for a certain time, because at first the people of the kingdom are ignorant, and have not the knowledge or skill to use it: but when that patent is expired, the King cannot make a new grant thereof: for when the trade is become common, and others have been bound apprentices in the same trade, there is no reason that such should be forbidden to use it. [FN29]
*324

(Cite as: 7 J. Intell. Prop. L. 315, *324)

This suggested that the term of the patent involved two different considerations, one being the opportunity of the patentee to recover costs (and presumably some reasonable profit) and the other being the public benefit accrued by precluding an extension or renewal of the term after "the trade is become common, and others have been bound apprentices in the same trade. . . ." [FN30] As will be seen, the tension between these two premises would continue when the United States patent law came into being.
Thus by the early seventeenth century, it had been established at common law that under the royal prerogative the crown had discretion to issue monopoly patents for invention for limited periods. Two reasons were typically given for the monopoly grant: (a) to introduce new trade and industry into the realm, and (b) to serve as a means of recompensing the patentee for the costs and risks associated with the enterprise. Although an early British textbook on patent law states that prior to the Statute of Monopolies the term of the patent grant was twenty-one years, in reality it varied widely from as short as four years to as long as thirty-one years. [FN31]
In issuing monopoly patents, James I followed much the same practice as Elizabeth I with very much the same result-a hue and cry against the odious monopoly. He sought to defuse the situation in much the same way that she did, i.e., by promising to let the common law courts determine the validity of the monopoly grants. A critical distinction was that she was a popular queen whom he could never hope to emulate, and whereas her Parliaments expressed concern about the improper granting of monopoly patents, his became downright mutinous on the subject. What she effectively prevented, he ultimately caused-the legislation enacted in 1623 that became famous as the Statute of Monopolies. [FN32]
Although the Statute declared as contrary to the law of the realm and utterly void all monopolies, grants, licenses, and letters patent of or for the sole buying, selling, making, working, or using of anything within the realm, it also contained a number of specified exceptions to this general mandate. One of these was contained in section 6 which stated that
*325

(Cite as: 7 J. Intell. Prop. L. 315, *325)

[A]ny declaration before mentioned shall not extend to any letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to the law, nor mischievous to the State . . . [t]he said fourteen years to be accounted from the date of the first letters patents, or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be, if this Act had never been made, and of none other. [FN33]
This section would provide the only statutory basis for the English patent law for more than two hundred years.
The Statute gave the crown discretion to issue monopoly patents for invention for any term of fourteen years or less. As a practical matter, patents were thereafter issued with a term of fourteen years. There are several interesting aspects to this term limitation. Clearly, Parliament accepted the argument that monopoly patents for invention were in the public good, but it also determined that they should be for a finite term that was substantially less than the predominant term of twenty-one years for the patents of James I. [FN34] In addition, the crown was given no authority to renew or extend the term of a patent. Implicit in the language authorizing monopoly patents for invention was the assumption that fourteen years would be sufficient to accomplish the purpose of the monopoly, regardless of whether it was to introduce and encourage the working of the invention within the realm or whether it was to recompense the inventor for expenses incurred and risks taken.
The extant historical record does not indicate exactly what the basis for the fourteen-year term was, but a contemporaneous exposition of the meaning to be attributed to section 6 was given by Lord Coke in his Institutes of the Laws of England, published in 1644. According to Coke, a valid patent for invention had to have seven specific properties, the first of *326

(Cite as: 7 J. Intell. Prop. L. 315, *326)

which was that the term not exceed fourteen years. [FN35] If these seven properties were present,
the reason wherefore such a privilege [i.e., that of the patent grant] is good in law is, because the inventor bringeth to & for the Commonwealth a new manufacture by his invention, cost and charges, and therefore it is reason [able], that he should have a privilege for his reward (and the encouragement of others in the like) for a convenient time . . . . [FN36]
Thus, Coke's first requisite property derives from the fact that a convenient time was determined to be not more than fourteen years.
The reason for this term is not found in the contemporaneous record, although it has been suggested that it was chosen because it was double the term of apprenticeship then set by statute in England. [FN37] It is more likely that the term of not more than fourteen years was chosen as a compromise between those who wanted a shorter term and those who argued for something on the order of twenty-one years which was a frequent term of the royal patents issued by James I. In this regard, it should be noted that the bill which in much amended form became the Statute of Monopolies was originally drafted by Lord Coke. In its original form, it contained no exception for patents of invention to the general ban on monopolies. [FN38] When a proviso was added excepting out patents for new inventions from the ban, it seems to have contained a condition that such patents could only be "for the term of eleven years or under." [FN39] How this became fourteen years or less in the final bill is unclear, but it undoubtedly was a product of a process of negotiation between those favoring a longer term and those favoring a shorter one.
*327

(Cite as: 7 J. Intell. Prop. L. 315, *327)

A prominent English commentator on the patent law states that "[t]he statutory limitation of the term of the grant to fourteen years . . . was avowedly based upon the consideration that the patent should not operate in restraint of trade." [FN40] At the time, however, that was exactly what Lord Coke thought it would do, because in his view it would preclude one apprenticed in the new manufacture from the free practice of his trade once the apprenticeship was completed. As a consequence, he favored a term limitation of seven years. [FN41] Regardless of the rationale for choosing the term of fourteen years, it is apparent that the intent was to permit the invention to go into use by the public once the term expired.
While it was clear that the Statute of Monopolies limited the authority of the sovereign to the grant of a term of no more than fourteen years, no such constraint was placed on Parliament. In the second half of the eighteenth century, it became increasingly common for patentees and their assignees to seek extensions of the patent term and to have Parliament enact special legislation to extend the term of particular patents. Indeed, assignees and licensees not infrequently sought to make term extension a condition of the assignment or license. To accomplish this, political connections and lobbying skill were required, as well as a fair sum of money.
Parliamentary term extensions varied in length but typically were on the order of four to seven years. [FN42] The most famous British patent of the eighteenth century, issued to James Watt in 1769, received a twenty-five year parliamentary extension in 1775 so that its total term was thirty one years. This was an exceedingly long term by English standards, and it is useful to briefly explore how it came about and what justification was given for it.
Watt's invention of the separate condenser for a steam engine in 1765 seems to have been little influenced by the existence of the British patent custom. Watt invented in order to solve a perplexing and interesting technical problem and not for the purpose of enriching himself through *328

(Cite as: 7 J. Intell. Prop. L. 315, *328)

patent rights arising from his invention. [FN43] But the commercial development of Watt's steam engine took more than a decade and many thousands of pounds to accomplish. That expenditure and the resultant successful economic development of the engine came about in no small measure because of the twenty-five year extension.
Watt had little personal funds and was required to borrow to finance his steam engine experiments. By the spring of 1768, he had accumulated a debt of over one thousand pounds. At that time, Watt entered into a partnership with Dr. John Roebuck whereby Roebuck agreed to pay off his debts and fund the cost of a patent in return for a two-thirds share in the patented invention. [FN44] Roebuck appeared to have made the application for a patent a condition of his partnership with Watt. [FN45] But Roebuck himself was soon in financial difficulty and contributed little more to the development of the engine than the sums he agreed upon in 1768. Watt was once again reduced to borrowing, and from 1770 to early 1774 spent little or no time on developing the engine. [FN46]
By early 1774, Roebuck was bankrupt and Matthew Boulton came to Watt's rescue. [FN47] Of Roebuck's creditors, only Boulton placed any value on Watt's patent, [FN48] and he was nothing if not entrepreneurial. He took over Roebuck's two-thirds share in the patent, entered into a partnership agreement with Watt to form the firm of Boulton & Watt, agreed to pay Watt a salary of 330 pounds a year plus expenses, and agreed to finance commercial development of the engine, estimated in 1775 to cost an additional 10,000 pounds. [FN49] Boulton saw not only the value of Watt's patent but also the necessity of obtaining a long-term extension of it in order to make the partnership profitable. Indeed, the partnership agreement seemed heavily contingent on the grant of a term extension and was to last only as long as the extended term of the patent, [FN50] which turned out to be until 1800.
*329

(Cite as: 7 J. Intell. Prop. L. 315, *329)

Early in 1775, Watt surrendered his patent, and a bill was introduced in Parliament to extend the term of the patent for twenty five years. After hot debate in the Commons, Parliament passed the Fire Engine Act [FN51] extending the term as requested. The Act stated the justification for the extension as follows:
AND WHEREAS, in order to manufacture these engines with the necessary accuracy, and so that they may be sold at moderate prices, a considerable sum of money must be previously expended in erecting mills, and other apparatus; and as several years, and repeated proofs, will be required before any considerable part of the publick can be fully convinced of the utility of the invention, and of their interest to adopt the same, the whole term granted by the said Letters Patent may probably elapse before the said JAMES WATT can receive an advantage adequate to his labour and invention:
AND WHEREAS, by furnishing mechanical powers at much less expense, and in more convenient forms, than has hitherto been done, his engines may be of great utility in facilitating the operations in many great works and manufactures of this kingdom; yet it will not be in the power of the said JAMES WATT to carry his invention into that complete execution which he wishes, and so as to render the same of the highest utility to the publick of which it is capable, unless the term granted by the said Letters Patent be prolonged. . . . [FN52]
Note that the rationale set forth is twofold; first, that he can be adequately recompensed for "his labour and invention," and second, that he may render his invention "of the highest utility to the publick." In other words, there is both a private and a public justification.
*330

(Cite as: 7 J. Intell. Prop. L. 315, *330)

Nothing in the Act indicates why the extension was for twenty five years which was unusually long. But Boulton was a most effective parliamentary lobbyist [FN53] who managed to direct the examining committee's attention to the fact that Parliament had extended the term of the Marquis of Worcester's steam engine patent for ninety-nine years and that of Captain Savory's steam engine patent for thirty-five years so that his request for a mere additional twenty-five years seemed quite reasonable. [FN54] He carefully refrained from giving the committee any information on whether these earlier patents had been held valid and successfully enforced against infringers. [FN55]
The desirability of giving Watt a thirty-one year patent term has been much debated from the eighteenth century to the present. Assuming that the estimate of 13,000 pounds required to bring the Watt engine to commercial fruition is accurate, then some extension of the term could be justified. [FN56] Some extension was very likely necessary to encourage the substantial investment and effort necessary for commercial success. But even if "Watt's invention . . . has been generally recognized as the key-invention of the Industrial Revolution," [FN57] that is not in and of itself any justification for extending the patent term to thirty-one years. Certainly it permitted both Watt and Boulton to leave handsome estates when they died. [FN58] But was it to the advantage of the public? The evidence suggests that it was not, but rather that it serves as a "justification for the more modest patent terms now normally provided." [FN59]
There were several major disadvantages of the long patent term. First, Boulton and Watt not suprisingly took advantage of it. [FN60] They made a conscious decision not to license the separate use of the condenser. The net result was that those who sought licenses for complete engines paid a very *331

(Cite as: 7 J. Intell. Prop. L. 315, *331)

high premium, or waited a very long time to obtain a Watt engine which was again quite expensive. If one obtained a proper license, all too often a competitor did not, so those who sought to comply with the patent were frequently at a distinct business disadvantage.
Secondly, while the long term gave Watt himself the opportunity to make and patent various improvements, at the same time it discouraged improvements in general. [FN61] In particular, Watt was strongly opposed to high-pressure steam engines for safety reasons, and yet as would ultimately be demonstrated they were the wave of the future. His refusal to build a high-pressure engine incorporating his separate condenser and other patented improvements appears to have materially retarded the development of even more effective steam engines. [FN62]
Over time, it seems Parliament became aware of these concerns. When Watt and Boulton petitioned Parliament in 1799 for a further extension of the term as well as for extension of the terms of the additional patents Watt had received in 1781, 1782, and 1784 (all of which had expired), they sought to justify the extensions on two grounds. First, the development of the steam engine had taken many years of costly experiments. Secondly, because of numerous infringements and legal actions, they had not been able to reap their just financial rewards. Parliament did not buy the argument and declined to act on the petition. [FN63]

b. copyright custom and practice
The rise of copyright is inextricably intertwined with the development of printing. In England copyright began in the same way as patents of monopoly for invention did, as an adjunct of the royal prerogative. Printing was introduced in 1476, [FN64] and as early as 1518 there is a record of royal grant for an exclusive privilege with respect to a printed book which protected the printer against reprinting within the kingdom or importation for a period of *332

(Cite as: 7 J. Intell. Prop. L. 315, *332)

two years. [FN65] This practice continued throughout the sixteenth century [FN66] with Elizabeth I in particular using it as a means of rewarding her favorites at no expense to the crown. These patent grants of printing monopolies with respect to a particular work or class of works were given to printers as well as courtiers or other royal favorites who were obviously not printers in their own right, and who farmed out the privilege to printers, for an appropriate fee of course. Nowhere in these monopoly grants was there any recognition that the author might have property rights with respect to the work being printed.
In the same manner as other patents of monopoly, these printing monopolies came to be looked on with suspicion. They gradually came to be restricted to the printing of books over which the crown claimed control by virtue of its authority as head of both state and church. [FN67] In particular, the rise of printed matter threatened the predominance of the sovereign in both the political and religious arenas. For the first time, a ready avenue was available for the wide dissemination of dissenting views with respect to the existing order. Therefore, it is not surprising that developing a mechanism for the control of printed matter became a matter of some urgency for the crown.
Early in the fifteenth century, a craft guild was formed of those who wrote text letters, and those who served as limners or illustrators, and those who bound and sold books. [FN68] Thereafter, those who made or dealt in books and were associated with this guild came to be known as stationers. In the latter part of the century, the stationers naturally came to be those who bought from the printers the books which they bound and sold. Perhaps not *333

(Cite as: 7 J. Intell. Prop. L. 315, *333)

surprisingly, the printing craft quickly came to be allied with that of the stationers. [FN69]
In 1556, the crown chartered the company of stationers and granted to it general supervision of the trades of printing, binding, publishing, and dealing in books. [FN70] In return for this right of supervision, the stationers agreed to royal censorship, supervision, regulation, and licensing of books to be printed. The stationers' company quickly established a register which recorded the works for which copying rights or privileges had been obtained. Unless a printer or publisher had obtained a printing patent from the crown, the work to be printed had to be registered with the stationers' company. [FN71]
This system of registry would ultimately result in the unintended and certainly unanticipated (at least by the crown) legal consequence of the judicial determination of the common law right of copyright. By registration the printer or publisher got an essentially exclusive copying right which for all intents and purposes gave an incontestable title to the work being copied, i.e., printed. It gave substance to the idea of literary property which came to be known as copyright. The copying right was protected by imposition of penalties for infringement. It could be assigned, sold, settled, given in trust, and had all the various attributes of property. Moreover, since unlike the privilege granted by printing patents the registration almost never carried a time limitation, it came to be regarded as a perpetual form of property. [FN72]
During the seventeenth century, a variety of ordinances and parliamentary acts were passed for the purposes of regulating printed material. While in force these assured control of the stationers' company over the printing, publishing, and booksellers' trades and permitted the registered copying rights to be maintained as monopolies. They tacitly, if not specifically, acknowledged a common law right of property in copyright. [FN73] But the last licensing act expired in 1694, and from then on until 1710 those holding *334

(Cite as: 7 J. Intell. Prop. L. 315, *334)

exclusive copying rights from the stationers' company found themselves essentially in limbo. Furthermore, they were faced with a rising tide of opposition to the monopolies conferred by their exclusive copying rights. Thus, influential members of the book trade and the stationers' company pushed for new legislation. It was not until 1710 that they got it, but when they did so it was not what they had anticipated and hoped for.
The bill that would become the first English copyright statute, the Statute of Anne, [FN74] was first introduced on January 11, 1710. It was entitled "A Bill for the Encouragement of Learning and for securing the property of Copies of Books to the rightful Owners thereof." As introduced, it contained no reference to any limitation on the term of protection for literary property. [FN75] This lack of a term, coupled with the use of the word "securing" in the title, suggested an intent to create a permanent and perpetual property right, which of course was precisely what the booksellers so desperately wanted.
During debate in the House of Commons, there was considerable concern expressed that a perpetual or unlimited term would result in monopoly of the worst sort and an inevitable restraint of trade. As a result, the bill as passed by Commons set the term of protection at fourteen years for new books and twenty one years for books already in print. Rose is persuasive in suggesting that these terms were identical to those provided for patents for invention in the Statute of Monopolies and were likely copied therefrom. He notes that when printing patents and patents for invention first appeared, they were not different inkind and were treated similarly. If the bill truly intended to treat copyright by analogy with patents, then there was a clear implication that the right to copy was not property at all, but rather a privilege emanating from the royal prerogative. The issue would then become one of why a literary invention was different from a mechanical invention, i.e., why should authors be treated differently than inventors? [FN76] This, of course, is an issue that continues to be debated to this day.
Given the decision to limit the term of copyright, it is perhaps not surprising that the title of the bill was changed in an effort to avoid any *335

(Cite as: 7 J. Intell. Prop. L. 315, *335)

impression that an extant right was being confirmed, but rather to emphasize that a new right was being created. It then became "A Bill 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" and that, with minor grammatical changes, became the title of the Statute of Anne. Unfortunately, the term "securing" continued to appear in the preamble to the second section so that proponents of perpetual copyright would seize on the inconsistency in arguing their cause. [FN77]
Limiting the term of copyright was not a happy thought for the booksellers, and they immediately filed a petition with Parliament, wherein they stated:
But it is said, That it is sufficient for us to enjoy a Term of Years in our Sole Right of Printing. To this we answer, That if we have a Right for Ten Years, we have a Right for Ever. A Man's having possess'd a Property for Ten or Twenty years, is in no other Instance allow'd, a Reason for another to take it from him; [FN78] and we hope it will not in Ours. [FN79]
Perhaps as a sop to the booksellers, or perhaps because they felt the proposed copyright term of fourteen years was too short, the House of Lords amended the bill to provide for a single fourteen-year term of renewal if the author was still living at the end of the first term. This language became a part of the Statute of Anne. [FN80]
One of the more remarkable aspects of the Statute of Anne was that it was styled "An act for the encouragement of learning. . . ." Never before had copyright been declared to be for this purpose, either by the crown or by the stationers. Where, then, did this purpose originate? The preamble to the bill which became the Statute justified it by stating that piracy of printed works "is . . . a real discouragement to learning in generll [sic] which in all Civilized Nations ought to receive ye greatest Countenance and *336

(Cite as: 7 J. Intell. Prop. L. 315, *336)

Encouragement. . . ." [FN81] The preamble to the Statute itself says merely that it is for the purpose of preventing piracy "and for the encouragement of learned men to compose and write useful books." [FN82] Nothing in the parliamentary debate indicates why the emphasis on the encouragement of learning came about. Moreover, the petitions presented to Parliament during the debates make "no reference to, or even tacit support of, the encouragement of learning." [FN83] Rose, however, states that the "priority given to the encouragement of learning" was a direct result of a series of articles published in 1709 by Daniel Defoe and Joseph Addison arguing that the rights of authors had to be protected. [FN84] But irrespective of who was responsible for it, this justification for copyright quickly found favor with Parliament and would ultimately find its way into the Intellectual Property Clause.
Regardless of its title, more than anything else, the Statute of Anne was a trade-regulation statute, aimed at controlling and limiting the rampant monopolies then extant in the booksellers trade. Its purpose was to act "in the interest of society by preventing monopoly, and in the interest of the publisher by protecting public works from piracy." [FN85] Although there is nothing to indicate that Parliament literally intended it as such, it would ultimately come to be judicially interpreted as providing for an author's right. It was in the context of this interpretation that it would serve as an antecedent, along with the Statute of Monopolies, for the Intellectual Property Clause.
One immediate consequence of the Statute was that "the traditional character of the stationers' copyright was radically altered by the introduction of a limited term." Not surprisingly, the stationers and the booksellers strongly argued against the concept of a limited term, [FN86] and:
*337

(Cite as: 7 J. Intell. Prop. L. 315, *337)

When the issue of limiting the term of protection arose, the booksellers objected that, if they had a property in their copies, they had it forever. This assertion rested on the claim that theirs was a common law right based on ancient trade practice. Thus the question of whether a limited term was compatible with a common law right was introduced. [FN87]
But almost six decades would pass before a common law court would specifically be called upon to answer the twin questions of whether authors or their assigns retained a perpetual property right at common law in their writings after their publication and what effect the Statute of Anne had on any such property right. [FN88] The case was Millar v. Taylor, [FN89] decided in 1769. But before reviewing that case, it is useful to briefly review why these issues were before the court.
Simply put, the stationers' company had acted so effectively to protect copyright over the long years that its registration system was in effect, that protection afforded by registration had come to be perceived as a form of property. [FN90] Indeed, the power of the stationers to protect the rights afforded by registration had been recognized repeatedly by both crown ordinance and parliamentary act through almost all of the seventeenth century, such that there was arguably a good ground for holding that a right of copyright existed at common law. [FN91]
The right to copy also arose from royal patents granting an exclusive right to print. These patents were dependent on the royal prerogative which *338

(Cite as: 7 J. Intell. Prop. L. 315, *338)

conferred a privilege and not a common law property right as such. The issue was further complicated by the fact that, as a practical matter, both the rights gained by registration and by patent were routinely sought to be protected in the early part of the seventeenth century by the courts of High Commission and Star Chamber, [FN92] and in the latter part of the century by the remedies provided under the licensing acts. This recourse to other than common law remedies [FN93] gave rise to the view that copyright was not so much a property right recognized at common law, as it was a right dependent upon royal grant exercised directly in favour of a patentee, or indirectly through the powers conferred by the crown upon the company.
During the seventeenth century, almost all the copyright cases reported turned on the rights of royal patentees. As a result, the right was treated rather straightforwardly by the courts as dependent on the royal grant. But the fact that there were no reported cases of common law actions for infringement of copyright prior to the Statute of Anne [FN94] is not conclusive that such a remedy was not perceived to exist, but merely of the fact that more convenient remedies were available.
Be that as it may, by 1760 when Tonson v. Collins was argued but not decided, [FN95] the debate on the meaning of copyright had become inextricably intertwined with more fundamental arguments concerning property itself. As has been nicely summarized:
The gradual exploration of the meaning of the concept of copyright was therefore caught up in a wider debate about *339

(Cite as: 7 J. Intell. Prop. L. 315, *339)

the nature of property itself. On the one hand, there was the prevalent view that property was a natural right, partially ceded to the state, which could be created and, having been created, existed in perpetuity. On the other, there was the view that all property derived from the Crown, and was therefore subject to the authority of the Crown and its agents, including laws made by the Crown-in- Parliament. [FN96]
However, the question remained: which concept of property would be controlling with respect to defining copyright?
The facts of Millar v. Taylor were straightforward. Millar had been assigned the copyright to a particular book, printed two thousandcopies, and placed them on sale. Taylor, at the expiration of the statutory copyright term, proceeded to print and sell the same book. Millar argued at trial that
[t]here is a real property remaining in authors, after publication of their works; and . . . they only, or those who claim under them, have a right to multiply the copies of such their literary property, at their pleasure for sale . . . this right is a common law right, which always has existed, and does still exist, independent of and not taken away by the statute. [FN97]
A majority of the four judge panel, including Lord Mansfield, held that a perpetual property right based on common law existed. Mansfield dismissed the Statute of Anne with the remark that "[w]e are considering the common law, upon principles before and independent of that Act." [FN98] For the first time, he used the phrase "incorporeal substance" to describe the property right found in copyright. He went on to state that "it is just that an author should reap the pecuniary profits of his own ingenuity and labour; it is just that another should not use his name without his consent." [FN99]
*340

(Cite as: 7 J. Intell. Prop. L. 315, *340)

Just or not, five years later in Donaldson v. Becket, [FN100] the House of Lords decided that whatever may have been the case originally at common law, the Statute of Anne effectively limited the term for which copyright could be enforced at common law to a maximum of twenty-eight years. During the debate in Donaldson Lord Chief Justice De Grey could not accept the argument made by Mansfield in Millar v. Taylor that a perpetual property right should exist because it was just that it exist. According to De Grey, "[t]his idea of moral fitness is indeed an amiable principle and one cannot help wishing all claims derived from so pure a source might receive all possible encouragement." But "[b]eautiful as it may be in theory, to reduce it into the practice and execution of the common law would create intolerable confusion; it would make laws vain, and judges arbitrary." [FN101]
To this day, what was actually decided in Donaldson remains a subject of considerable dispute among scholars and commentators. On a very pragmatic level, the House of Lords did "no more than to declare that copyright henceforth would be limited in term." [FN102] But there were other questions of significant interest raised by the case, to wit:
But on what basis did the peers make their determination? What understanding of the nature of copyright did they adopt? Were they persuaded that there never was a common-law right? Or did they believe that there was but that it ended with publication? Or that it was taken away by the statute? [FN103]
One commentator suggests that although the law lords did indeed discuss the principles involved, they couched their holdings in terms of precedent and *341

(Cite as: 7 J. Intell. Prop. L. 315, *341)

not whether an inherent or natural law right ought to prevail. [FN104] A second commentator in turn, argues that the lords "grounded their decision on the position that copyright had never existed as a right at common law." [FN105] A third commentator says merely that: "In general, all agreed that the 1710 Act superseded whatever common law might have existed before that time." [FN106]
Of more immediate interest for the purpose of the present work is the manner in which Donaldson was perceived in the following decades when the Constitution was drafted and American copyright law came into being. To understand this perception, it is useful to look at the facts of the case as well as how it was reported. Although not technically so, Donaldson was in effect an appeal of the determination in Millar v. Taylor. Millar had sold his copyright at issue in Millar v. Taylor to Becket who had had it pirated by Donaldson. Becket immediately obtained an injunction against Donaldson, and the latter appealed to the House of Lords. [FN107]
The manner in which the House of Lords functioned at this time as a court of last resort has been set forth as follows:
In 1774 the House of Lords decided cases by a general vote of the peers, lawyers and laymen alike. Great weight was usually given to the opinions of the lawyers, but the practice of lay peers not being recognized when the House of Lords set as a court had not yet been instituted. In important cases such as Donaldson v. Becket, however, the twelve common-law judges of the realm-the judges of King's Bench, Common Pleas, and the Exchequer-would be summoned to the House to hear the arguments of counsel and to give their advice on matters of law, after which the peers would debate the issue and vote. [FN108]
This was exactly what occurred in Donaldson. The common law judges were asked to answer five specific questions posed by the peers, to wit:
*342

(Cite as: 7 J. Intell. Prop. L. 315, *342)

1. Whether at common law, the Author of any Literary composition had the sole first Right of printing and publishing the same for Sale, and could bring an Action against any Person for publishing the same, without his consent?
2. If the Author had such right originally, did the Law take it away upon his printing and publishing the said literary composition, or might any Person reprint and publish the said literary composition, for his own Benefit, against the Will of the Author?
3. If such Action would have laid at Common Law, is the same taken away by the Statute of Anne? Or is an Author precluded by such Statute from any Remedy, except on the foundation of such Statute?
4. Whether the Author of any literary Composition, or his assigns, had the sole Right of printing and publishing the same in perpetuity by the Common Law?
5. Whether this Right is in any way impeached, restrained or taken away by the 8th of Anne? [FN109]
Eleven of the judges answered these questions. Mansfield, who was both a common law judge and a peer, declined to do so. However, because of the position he had taken in Millar v. Taylor, it was generally assumed that he would have answered them in a manner favoring a common law right in perpetuity. [FN110]
Perhaps it was to be expected that the judges would split in their views. On the first question of whether a common law right existed, eight voted affirmatively. On the second question as to whether publication adversely affected the right, seven answered affirmatively. On the third question, there is some confusion in the record. Both the Journal of the House of Lords and the standard historical references indicate that by a slim majority of six to five the judges were of the opinion that the Statute took away the author's right at common law. However, contemporary newspaper reports and other *343

(Cite as: 7 J. Intell. Prop. L. 315, *343)

accounts indicate the vote was six to five the other way, and that the clerk of the House made an error in tallying the votes. [FN111]
Modern commentators give conflicting views on what these answers and the accompanying advisory opinions by the judges meant, although they would undoubtedly all agree with the statement that "[d]etermining the grounds for decision in Donaldson v. Becket is no simple task." [FN112] Thus, Patterson & Lindbergh indicate that based on these opinions, "American courts and commentators assumed that (and have since acted as if) the House of Lords had held that the author had a common law copyright." [FN113] Abrams phrases it somewhat differently, saying that, based on the opinions, "Donaldson has been consistently interpreted as holding that copyright was recognized by the common law, but was 'impeached' or preempted by the Statute of Anne." [FN114] But, according to Feather: "the judges were rather more decisive than some of the more ambiguous responses might suggest. In general, all agreed that the 1710 Act superseded whatever common law might have existed before that time." [FN115] Rose, however, has quite a different perspective, suggesting that "[h]ad Mansfield voted, the tally would have been a substantial seven to five in favor of the common law right surviving the statute." [FN116]
All agree, however, that views expressed by the common law judges were advisory only and not binding in any way on the lords. The decision was by vote of the entire House, and "the floor debate appears to have been very important." [FN117] But the content of that debate was not officially reported, because the reporters were constrained by law from reporting it. [FN118] Thus, the most commonly cited report on the case, i.e., the fourth edition of Burrow's Reports, makes no mention of the debate, but instead reports only the arguments of counsel, the advisory opinions of the common law judges, and the decision against the continuance of the injunction against Donaldson. The issue was further confused by the fact that Burrow appended his report *344

(Cite as: 7 J. Intell. Prop. L. 315, *344)

on Donaldson v. Becket at the end of his much longer and much more detailed report on Millar v. Taylor. [FN119]
There are three accounts extant, however, which do include statements made during the debate by the peers. [FN120] They indicate that five of them actually spoke, with four of them arguing against any common law copyright and one speaking in favor of such a right. For reasons known only to him, Mansfield declined to voice his opinions. When the issue came to a vote, the peers decisively supported a reversal of the Chancery decree upholding the injunction. [FN121] The literal effect was simply to reverse the ruling in Millar v. Taylor, but, as has been rather artfully stated, "when we ask what doctrine, precisely, the Lords preferred to that which had been cast aside, Clio (that coy muse) simply shrugs." [FN122]
What was developed in the years after 1774 was the belief that Donaldson had established that there was indeed a common law property right in copyright, but one which had been merged into and could only be enforced in accordance with the Statute of Anne. [FN123] Be that as it may, based on *345

(Cite as: 7 J. Intell. Prop. L. 315, *345)

perspectives of common law property right in copyright, arguments would be made that there is no logical distinction between literary works and invention, in that both involve the use of the mental facility and the ideas derived from such should result in similar property rights. But the life of the law is not always logic. [FN124] Thus, in Donaldson it was the lack of a common law property right in invention which provided a fixed point in the debate about common law property in copyright. [FN125] Those who argued for such property in perpetuity deemed themselves obligated to distinguish between literary work and invention, whereas those who denied it found themselves arguing that the two were analogous. While two of the law lords were prepared to admit the possibility that "previous to the monopoly statute, there existed a common law right, equally to an inventor and the author of a book," they argued that the only property right that existed after the Statute of Monopolies and once an invention was disclosed to the public was that granted by the crown for a limited time in the form of a patent. [FN126]
With this in mind, Baron James Eyre opined that the "Exactitude . . . of the Resemblance between a Book and any other mechanical Invention" was clear:
There is the same Identity of intellectual Substance; the same spiritual Unity. In a mechanic Invention the Corporation of Parts, the Junction of Powers, tend to produce some one End. A literary Composition is an Assemblage of Ideas so judiciously arranged, as to enforce some one Truth, lay open some one Discovery, or exhibit some one Species of mental Improvement. A mechanic Invention, and a literary Composition, exactly agree in Point of Similarity; the one therefore is no more entitled to be the Object of Common Law Property than the other. [FN127]
*346

(Cite as: 7 J. Intell. Prop. L. 315, *346)

In his view it was plain that the Statute of Anne treated copyrights similarly to patents. Likewise, Lord Camden gave as his opinion that copyrights should not be distinguished from patents in that there was no real difference between authors and inventors, and both were beneficial to society. Because no common law claim could be made for inventors, none should be made for authors. [FN128]
Beginning with Tonson v. Collins and continuing through Donaldson v. Becket, the arguments have been summarized as follows:
First, the proponents of perpetual copyright asserted, the author's natural right to own his creation. Second, their opponents replied that ideas could not be treated as property and that copyright could only be regarded as a limited privilege of the same sort as a patent. Third, the proponents responded that the property claimed was neither the physical book nor the ideas communicated by it but something else, an entity consisting of the style and sentiment combined. [FN129]
As a practical matter, those who argued that a copyright was similar to a patent ultimately prevailed, but this was not immediately apparent in the young United States.
Unlike the situation with the patent term where Parliament not infrequently acted to extend the term, there seems to have been no instance in the eighteenth century after the Statute of Anne was enacted wherein Parliament ever sought to extend the term of a copyright beyond the maximum of twenty- eight years set by the Statute. In England in the eighteenth century there is nothing to indicate that the terms of patents or copyrights were in any way based on the life expectancy of the inventor or author. While the Statute of Anne granted an automatic right of renewal for an additional term, such could only occur if the author was still living at the end of the initial fourteen- year term.

a. the patent term
Before specifically addressing how the patent term has been delineated, it is useful to review perceptions on the nature of the patent grant during the nineteenth century, because those perceptions influenced how the term should be treated both legislatively and judicially. More often than not the issue was perceived as one of whether patents were to be treated as monopolies. The Framers clearly viewed these limited-term exclusive rights as monopolies, albeit of a desirable and acceptable type. Indeed, this was precisely why they deemed it necessary to ensure that the exclusive right was granted only "for limited times." [FN190]
Nonetheless, there would soon be fierce arguments-which have continued to this day-as to whether the "exclusive right[s]" authorized by the Intellectual Property Clause are in fact monopolies. Those who argued that they were monopolies tended to favor more restrictive interpretations of the patent law, while those who contended that they were not monopolies generally did so for the purpose of advocating a more liberal interpretation of this law. Those who argued that they were monopolies more often than not contended that this law was intended to favor the public interest whereas those who avoided the use of the term "monopoly" generally argued that an important purpose of this law was to reward inventors for their efforts.
As William Robinson would point out in his massive patent treatise published in 1890, "[t]he question whether a patent privilege is a monopoly is not merely a question of words." [FN191]
He noted that:
*365

(Cite as: 7 J. Intell. Prop. L. 315, *365)

In legislative bodies, which recognize the patent-right as a monopoly, the interests of the public will naturally be preferred to those of the inventor; legislation on the subject will be cautious and conservative; and the powers conferred upon the patentee will be subordinated to the free enjoyment by all other citizens of every privilege that is not inconsistent with the protection to which his inventive skill and genius are entitled. In courts where the same theory prevails such rules will be followed as tend to limit the monopoly of the inventor to the exact letter of his grant, and hold him to a strict compliance with all its conditions as an essential requisite of validity. [FN192]
In the context of the present work, this view suggests that attempts to extend the term of the grant beyond that expressly set by statute or to create a greater statutory term will be looked on with suspicion at best and refused in most instances.
But Robinson went on to point out that if a patent is not treated as a monopoly, it is considered favorably by the law, with the following consequences:
Being intended principally, if not entirely, for the benefit of the grantee, and conflicting with no public interest either actual or possible, the law construes it liberally in order to secure to the grantee all the advantage which the grantor might have proposed to bestow upon him. And hence, where legislators and the courts adopt this theory of the exclusive privilege created by a patent, and lose sight of its true character as a monopoly, legislative acts in favor of the inventor will be sweeping and extravagant, and the decisions of the courts will sustain him in claims which seriously abridge the rights of others, and will afford him a protection and redress far beyond that which justice and the public interest demand. [FN193]
*366

(Cite as: 7 J. Intell. Prop. L. 315, *366)

Although using extravagant language, Robinson made clear that whether a patent was actually treated as a monopoly, as opposed to simply being called one, depended in no small measure on whether the intent of the grant was perceived to be primarily for the benefit of the public or primarily for the benefit of the patentee. [FN194]
Robinson's basic premise was that in the absence of some defined property right set by society an idea once communicated to the public is freely available for use by the public, and an inventor has no right or power to restrain its use by the public. [FN195] By granting a right or power to restrain the use of an invention by the public, a patent, Robinson contended,
. . . is a true restriction of pre-existing public rights. It may not, and ordinarily it does not, take away from the people the actual enjoyment of any benefit which they already had in their possession, but it does prohibit their immediate exercise of that perpetual and natural right by virtue of which every new discovery, when openly practised or proclaimed, becomes at once the possession and property of all. [FN196]
While patents may be granted to stimulate inventive activity and to reward inventors, "[t]he duty which the state owes to the people to obtain for them, at the earliest moment, the practical use of every valuable invention in the industrial arts is, however, a higher and more imperative duty than any which it owes to the inventor." [FN197] In other words, the term of a patent is limited to that required to actually "promote the progress of . . . useful arts," and there is no proper basis for making it any longer. [FN198] Her view that the *367

(Cite as: 7 J. Intell. Prop. L. 315, *367)

purpose of the patent system is to encourage invention is one that was prevalent in the first half of the nineteenth century, but one which has been largely discredited today. Nonetheless, her point that the patent system ought to give "the inventor the minimum actual reward consistent with continued credibility" [FN199] is a valid one. The length of the patent term is certainly a critical factor in making this determination.
With this introduction, it is appropriate to turn now to what Congress has actually done concerning the patent term. The first patent statute, the Patent Act of 1790, authorized the issuance of a patent "for any term not exceeding fourteen years." [FN200] This was exactly equivalent although not identical to the language of the Statute of Monopolies. [FN201] The patent board authorized under the Act of 1790 to issue patents [FN202] determined a standard term of fourteen years. [FN203] It quickly became apparent that having high government officials responsible for issuing patents was an inefficient and ineffective way to proceed, particularly in view of the fact that these officials had to determine whether the invention was deemed "sufficiently useful and important" to warrant a patent, and less than three years later Congress opted for a registration system under which a patent would automatically issue if the fees were paid and the ministerial requirements met. This Patent Act of 1793 also provided "for a term not exceeding fourteen years," [FN204] but the Secretary of State, who was responsible for seeing that the ministerial *368

(Cite as: 7 J. Intell. Prop. L. 315, *368)

requirements were met, quickly established a standard term of fourteen years which would be the term during the forty-three years that the Act of 1793 remained in effect.
The language of the Acts of 1790 and 1793 seemed literally to indicate that no patent could have a term in excess of fourteen years. Congress, however, would interpret the statutory language as placing a limitation on the executive branch from issuing a patent with a term of more than fourteen years, but not on the ability of Congress to extend or renew the term of an issued patent beyond fourteen years as it saw fit. The issue of congressional authority in this regard was for all intents and purposes moot until 1804 when the first patents issued under the Act of 1790 expired.
The issue was brought to the attention of Congress by Oliver Evans, who in 1791 obtained the third United States patent for his invention concerning improvements in the milling of flour. His improvements constituted a major advance in the art of milling. Not only did they materially increase the efficiency of the milling process and thereby lower costs, they also produced a more uniform and cleaner product. Although his improvements were slow to catch on, by 1804 many millers were licensing his invention and many others were infringing on his patent.
Evans, like most inventors of his time, thought that the fourteen-year term of a federal patent was too short, and that, at the very minimum, each patent holder should have an automatic right of renewal for some period of time. [FN205] On December 21, 1804 he became the first patentee to formally petition Congress for an extension of his patent right when he sought a seven- year extension "without injuring those who have already purchased the right of using it." [FN206] Much to his surprise and dismay, Congress failed to act on this petition. On January 22, 1805, the House Committee on *369

(Cite as: 7 J. Intell. Prop. L. 315, *369)

Commerce and Manufactures recommended the term extension but also recognized that this was the first of what were likely to become frequent requests. Accordingly, it recommended that the patent law be amended to allow for term extensions. [FN207] A bill was prepared which would have accomplished both of these purposes, but on February 6th the House rejected it. [FN208] It would not be until 1832 that Congress would pass any general legislation pertaining to term extension. [FN209]
Evans tried again in the next session of Congress, even though his patent had now expired, but was again unsuccessful. [FN210] He now changed his strategy and on December 13, 1806, presented a more general petition seeking modification of the patent law to extend the statutory term of patents. [FN211] Therein he had the temerity to propose a much more extreme position, namely, that inventors, their heirs, and assigns be granted the patent right forever. [FN212] A week later, he wrote to President Jefferson stating that: "To represent the patentees petition to Congress for redress, I am making my last effort to draw the attention to the oppressed and aggrieved state of the inventive genius of this country. . . ." He hoped that Jefferson would look favorably upon this letter, because "one word from you would promote it more than all my feeble exertions." [FN213] That word was not forthcoming, however, and Congress did nothing.
But Jefferson did belatedly respond to this letter. On May 2, 1807, he set forth his perspective as follows:
*370

(Cite as: 7 J. Intell. Prop. L. 315, *370)

Certainly an inventor ought to be allowed a right to the benefit of his invention for some certain time. It is equally certain it ought not be perpetual; for to embarrass society with monopolies for every utensil existing, & in all the details of life, would be more injurious to them than had the supposed inventors never existed: because the natural understanding of its members would have suggested the same things or others as good. How long the term should be is the difficult question. Our legislators have copied the English estimate of the term; perhaps without sufficiently considering how much longer, in a country so much more sparsely settled, it takes for an invention to become known & used to an extent profitable to the inventor. [FN214]
Here Jefferson comes out solidly against any perpetual right in an inventor, although he does leave open the possibility of chang