CHAPTER 1

HISTORICAL AND PHILOSOPHICAL BASES OF COPYRIGHT LAW

 

          Music copyright infringement litigation determines more than whether one composer copied the work of another.  The court must re-examine on a case-by-case basis the nature and extent of the composer's ownership rights in certain aspects of his composition.  If the court finds copying, it must also examine the offense to assess whether the copying is legally actionable.

          The court in a trial of copyright infringement applies law drawn from several different sources.  The Constitution and the Copyright Act of 1976 do not set forth all of the principles that make up the legal tests for infringement.  A rich history of common law precedents continues to determine many aspects of copyright litigation.  Both statutory and common law reflect the influence of highly contradictory goals, principles, and philosophies: censorship, monopoly, private ownership of property, the advancement of arts and sciences, and freedom of expression, to name only a few.  The law now rejects some former goals.  Among the conflicting principles that remain legitimate and even compelling in an enlightened democratic society, copyright law strikes an imperfect balance.  The author's interests both complement and compete with those of the public.

 

Property Rights in Artistic Creations

          An act of plagiarism may give the owner of the copied work a legal cause of action against the offender for copyright infringement.[1]  The civil law applied the Latin term plagiarius to a kidnapper.  A plagiarist is defined in English as one who takes the work of another and passes it off as his own.  The taking may be actionable even if it involves less than literal copying; any unfair use of a substantial portion of another's work constitutes infringement.[2]  But before terms like "kidnapping" and "misappropriation" can be applied, the original author must enjoy rights of ownership.  Therefore, the law must first establish a basis for an author's ownership of his creation.

          The U.S. Constitution grants Congress authority "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."[3]  The copyright laws of the United States owe their existence to this clause.  Congress must write copyright laws in conformity with this enumerated power, and judges must interpret the laws consistent with the express purpose of the power.  This brief constitutional statement reflects much of the framers' understanding of both the nature of intellectual labor and the impetus for artistic creation.

          An author will likely sense an immediate proprietary interest in any new creation, but the framers recognized no property right arising automatically from the fact of authorship.  Instead, they authorized Congress to secure this right on behalf of authors, to "grant" authors exclusive control.  Congress may not grant these exclusive rights in perpetuity.[4]  Under the copyright clause alone, it seems, an author begins with little protection.  Without action from Congress, an author would enjoy few attributes of ownership in a freshly created work.  The Constitution adopts a highly utilitarian philosophy: rights are granted as a price of encouraging creativity.

          Absolute ownership of a thing entails the unrestricted and exclusive right to alienate or dispose of it in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it.[5]  Some attributes of absolute ownership do not apply to intellectual property, because the Constitution empowers Congress to limit and interfere with the author's rights.  Therefore, an author does not own his work absolutely.  The term "property," however, embraces everything that can be made the subject of ownership, and Congress can grant certain aspects of ownership in artistic creations to an author.  So an author may have some property rights in his creation and may enjoy qualified ownership.

          Property rights arise from various sources.  One can purchase or inherit property previously owned by another.  In such cases, the one acquiring property assumes all of the rights held by his predecessor in title.  But the original source of property, a right in something never before owned, is more obscure.  The rule of capture can be applied to some things never before owned.  Wild animals standing on one's land and oil migrating beneath the surface do not belong to the landowner until he possesses them in a more physical sense.  He must shoot his prey or drill a well.  The author's task is more difficult still: he must establish rights in something never before in existence.  A general reluctance to recognize property rights in intellectual labor permeates history and compounds the author's dilemma.  Even today, the public is not entirely willing to equate with theft acts such as dubbing tapes, tapping satellite signals, or photocopying printed music.

          John Locke's theories on property illuminate much of our copyright law.  Creation of an artistic work requires labor, and through labor property rights arise.[6]  The utilitarian concept that production of art should be encouraged by securing property rights in the art recognizes and rewards the artist's labor.  The two components of motivation and reward are compatible and tend to support each other.  But society has no reason to motivate artistic creation that it cannot enjoy or reward the labors of one who keeps his work under lock and key.  The reward is justifiably conditioned on publication.  Locke's "labor-desert" or "value-added" theory suggests that society benefits from the same labors that give rise to individual ownership.[7]  It is the production of social value that deserves reward, not the labor that produced it.[8]  Thus, society owes something in return for the artist's contribution to public wealth.  Further, the belief that society is enriched by a new work of art supports the thesis that an artist relinquishes some aspects of ownership when he holds his work out as art.  Society pays the artist for his contribution, and payment takes the form of statutory rights and legal remedies that may be analogous to a contract for attribution and royalties.

          This explanation, of course, begs the question: Why is Congress "granting" ownership rights if ownership originates with the author's labor?  Some recognition of ownership must precede the granting of these rights, because Congress is not at liberty to grant them to someone who is not the author.  Rather, Congress grants a limited "bundle" of rights to the creator; it implicitly accepts Locke's theory that property rights arise through the act of creation, but limits the scope of those rights.[9]

          A second justification for property lies in a personality theory.  Hegel stated that the individual must translate his freedom into an external sphere in order to be a fully developed and independent organism.[10]  A property interest may arise from labor but might also attach to a gift.[11]  The individual must assert his will over property.[12]  He requires some control over resources in the external environment.[13]  Under this theory a work of art belongs to its creator because it is a manifestation of the creator's personality or self.[14]  The will can occupy only a virgin object (as in the rule of capture) or something that has been abandoned (as in an object bought, inherited, or found).  An artistic creation is, to the artist, a virgin object.  Labor is a sufficient, but not necessary, condition for the will to occupy an object.

          Hegel recognized artistic skill as something internal and owned by the mind.  But expression embodies that skill in something external and alienates it.[15]  Alienation reflects the withdrawal of the owner's will.[16]  The purpose of artistic production is that others should understand it and make it the possession of their ideas, memory, and thinking.[17]  When the artist holds his work out as art, he alienates some portion of it.  To suggest otherwise - that artistic expression belongs entirely to the artist -requires a belief in the hypothesis that art is purely self-expression.  It is not.  As Susanne Langer argues, this belief meets a paradox early on: sheer self-expression requires no artistic form.[18]  That which transforms self-expression into art does not originate entirely with the artist.  Thus, the ownership right stemming from creation must be incomplete.

          The public asserts a credible interest in intellectual labors, one inconsistent with absolute ownership in the author.  In the field of patents, the inventor should not be able to hold important scientific knowledge hostage.  Although the Constitution mandates the same utilitarian rationale for science and art, the inventor's exclusive rights are more difficult to acquire and expire more quickly.  Copyright, unlike patents, assigns to an individual ownership in something that the public could never gain except through that individual's efforts.  Works of authorship are created, not discovered.[19]  But an author generally does not create a work solely for his personal use and enjoyment.  The public plays an integral part in the phenomena of art, and the author benefits from that public involvement.  The first amendment requirement of freedom of expression argues further that an individual should not enjoy unlimited control over expressions that have been introduced into the public lexicon.  The law attempts to balance these competing rights and concerns of the artist and the public.

 

Control of the Printing Process

          Reproduction of the printed word drove many developments in copyright law during its early history.  Origins of copyright are better understood in the literary genres; protection of music was a side issue, largely because music lacks overt political and religious content.  After the introduction of the printing press, various copyright protections were devised to guard the interests of those affected.  Similarly, many of the recent changes in the law have resulted from the proliferation of new technologies in mass communications.  New technologies can generate the assertion of new legal interests and the erosion of old protections.

          The ability to produce numerous copies of literary works at reasonable prices goes back well before the invention of the printing press.  Greek and Roman libraries were an outgrowth of an interest in learning, and books were copied and distributed throughout those empires.  Atticus trained slaves to take dictation so that a thousand copies of a small book of poems could be produced in a day.[20]  During the middle ages, the church controlled the production and copying of literary works.  Not until the establishment of the universities in the twelfth century were laymen again to take a part in the process.[21]

          Yet throughout these times, no law protected the interests of authors.  Property was in the paper, the physical aspect of literature, not in ideas.[22]

          When the first English printer, William Caxton, set up business in Westminster in 1476, the printed word was an obvious concern of the crown and the church.  The advent of the printing press threatened stability and control.  The crown could not tolerate the unchecked distribution of heretical or treasonous writings.  Presses were large and not easy to conceal, so the crown chose the simple solution of licensing the press and the printer through the granting of privileges.[23]  The powerful did not greet the printing press with unmixed loathing; they recognized its potential benefits.  In addition to the obvious boon of advertising its own viewpoint, the crown implicitly acknowledged the broader social gains to be had through increased access to writings.  Richard III encouraged the importation of books.[24]

          During the Reformation, however, prohibitions against imported books gained importance.  Henry VIII reversed Richard III's policy.[25]  The Privy Council in 1549 issued an order against "papist" books.[26]  Queen Mary, a few years later, was as concerned about Protestant books.  Mary's priorities may be reflected in the chronology of statutes: she first declared her birth legitimate,[27] and second promulgated orders to redirect the ban on importation to favor Catholicism.[28]  The adjectives "heretical" and "seditious" appeared repeatedly throughout these orders until the eighteenth century.[29]  Censorship thus provided an early stimulus for the development of copyright laws.  Because benefit of the crown was the primary factor, ownership of a work by the author might be regarded as somewhat onerous.  Attribution served purposes beyond that of paying homage to the author.

          In 1557, Queen Mary relinquished royal censorship in favor of granting a monopoly, in the form of a Charter of Incorporation, to the Company of Stationers.[30]  Only the stationers could legally print books.[31]  They were authorized to search houses and businesses and seize any unauthorized publications.  One might be imprisoned for unauthorized printing or resisting the search.  The preamble to the Charter declared that the King and Queen,

 

wishing to provide a suitable remedy against the seditious and heretical books which were daily printed and published, give certain privileges to their beloved and faithful lieges, the ninety-seven Stationers, in addition to the normal rights of a company.[32]

 

Only the crown could authorize the publications of the Stationers.  The publishers' economic interests were thus tied to the crown's interest in censorship.[33]  Because suppression of Protestant books benefited the crown, the Stationers gained more bargaining power over authors and set prices as they wished.[34]

          The Company of Stationers reached a peak of authority when the Star Chamber[35] issued its decree of 1637.  Stating again the general purpose of prohibiting "seditious, scismaticall, or offensive Bookes or Pamphlets, to the scandal of Religion, or the Church, or the Government," the decree made it unlawful to set up a press.  Offenders were to be "set in the Pillorie, and whipt through the Citie of London, and suffer such other punishment, as this Court shall Order. . . ."[36]  The decree required that the author's name be listed, serving less to grant him credit than to ensure that he could be found for punishment.  With the abolition of the Courts of Star Chamber and High Commission in 1641,[37] however, the Company of Stationers lost much of the basis for its authority.[38]  The Company's monopoly was maintained through a series of licensing acts passed by Parliament after 1649 and extended after the Restoration.  The last licensing act expired in 1694.

 

The Statutory and Common Law of England

          Members of the Company of Stationers had lost their monopoly, and it was they who lobbied for the passage of statutory protection.  Emphasis was placed directly on protection of copyright rather than control of printing.[39]  As a result, in 1710 Parliament passed the first copyright statute, the Statute of Anne,[40] declaring:

 

WHEREAS, Printers, Booksellers and other Persons have of late frequently taken the Liberty of printing, reprinting and publishing, . . . without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For preventing therefore such Practices for the future, and for the Encouragement of learned Men to compose and write useful Books. . . .[41]

          The statute explicitly addresses authors' rights.  However, inclusion of authors among the statute's beneficiaries may not signal Parliament's general subscription to the theory of natural rights in intellectual labors.  Some reaction against the previous granting of monopolies to publishers must have been at work.  In order to avoid granting rights to the few in the printing trade, a natural alternative would be to speak of rights in the books themselves and in the authors who create them.  The publishers themselves may have perceived an advantage in framing the argument in terms of authors' rights.[42]

          The statute granted protection for a period of twenty-one years to authors (or their assigns) of books already in print.  Books published after enactment were protected for fourteen years, with an additional fourteen available if the author were still living at the end of the first period.  The question soon arose whether the common law recognized a perpetual right and, if so, whether the statute added to or preempted that right.[43]  In the sixteen years between the expiration of the last licensing act and the passage of the Statute of Anne, no precedent emerged on the issue of common law copyright.[44]  Booksellers assumed that purchasing a copyright from the author gave them a perpetual right.  One commentator argues that booksellers could not have maintained that belief after passage of the statute.[45]  But pamphlets that spoke of common law rights were written to lobby for passage of the statute.  They claimed a need only for more adequate remedies.[46]

          Almost sixty years after passage of the statute, the issue of whether the statute preempted common law copyright first came before the courts.  Andrew Millar had purchased the rights to James Thomson's The Seasons[47] and published it during the statutory term.  Upon expiration of the term, Robert Taylor produced a competing edition.  Millar claimed that common law granted a perpetual copyright beyond the statutory protection.

          The majority in Millar v. Taylor[48] found no preemption of the common law right.  They based their decision on the just rewards of authorship, "that an author should reap the pecuniary profit of his own ingenuity and labour."[49]  The court reasoned that the Statute of Anne had been meant to address an inadequate provision in the common law for a remedy and that it was not intended to preempt the perpetual common law protection.[50]  But Justice Yates, writing for the dissent, classified copyright as a tort right[51] rather than a property right, because it involved the right to restrain copying after the book had been legitimately sold.[52]  The issue then was "whether . . . the author has a sole and perpetual property in that work; so as to give him a right to confine every subsequent publication to himself and his assigns for ever."[53]

          Five years later, in 1774, the Millar decision was overruled by Donaldson v. Becket.[54]  Donaldson involved the same work as Millar, Thomson's "The Seasons," the rights to which Becket had bought from Millar's estate.  Donaldson produced an unauthorized edition and, based on Millar, an injunction was granted.  Donaldson appealed this ruling to the House of Lords.

          The Donaldson decision has generated much confusion.  The House of Lords decided the case after soliciting advisory opinions from the courts: King's Bench, Common Pleas, and Exchequer.  Historians generally cite these advisory opinions, but the opinions expressed by the Lords in debate controlled.[55]  Eleven judges responded to five separate questions presented by the Lords.  The advisory opinions recognized the perpetual common law right but stated that the Statute of Anne preempted that right in favor of a limited term.[56]  This was the view that found its way into American jurisprudence.[57]

          The debate in the House of Lords, on the other hand, indicates that the decision did not rest on the principle of statutory law replacing the common law.  Rather, the Lords expressed a clear belief that no common law copyright existed at all.  Lord Camden argued:

 

So little did they dream of establishing a perpetuity in their copies, that the holders of them finding no prerogative security, no privilege, no licensing act, no Star Chamber decree to protect their claim, in the year 1708 came up to parliament in the form of petitioners, . . . [to] induce parliament to grant them a statutory security. . . .[58]

 

Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in with regard to literature, if there were no means of compelling a second impression of a useful work. . . .  All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set what price upon it their avarice chuses [sic] to demand, till the public become as much their slaves, as their own hackney compilers are.[59]

Lord Effingham noted the negative impact that the common law right would have on liberty of the press.  Only one speaker argued for the common law right.  Lord Lyttelton "urged, that the science of literature, though not tangible, was nevertheless property, and that it must receive a very sensible shock from the reverse of the decree."[60]  The vote to lift the injunction was twenty-two to eleven.

 

Common Law Protections in the United States

For many years in the United States, common law was held to protect artistic works prior to publication.  Upon publication, statutory protection superseded the common law.  A perpetual common law right was traded for a limited statutory right in return for the economic benefits of publication.  The 1976 Copyright Act changed that.  It extends statutory protection back to the point of fixation in a tangible medium,[61] which reduces the common law right to a mere abstraction.  The common law tradition survives to some extent in the high deference given an author to control the first publication.[62]

          Wheaton v. Peters[63] presented the U.S. Supreme Court with its first claim of a perpetual common law copyright.  The controversy surrounded the court's own official reporters.  Richard Peters, then the official reporter of the court, wanted to publish condensed versions of earlier decisions, which had been published by the former reporter, Henry Wheaton.  Wheaton's action before the circuit court was based on both his statutory and common law copyright.[64]  Peters defended on two grounds: that Wheaton had failed to comply with the statutory requirements, and that the common law right did not exist.  The court first determined that absence of the requisite registration formalities deprived Wheaton of statutory protection.  The court then noted that not all of the English common law had been adopted in the states, and the common law varied from state to state.  The court declined to decide the common law issue, and it was this issue on which Wheaton appealed to the Supreme Court.

          The Supreme Court continued the now-familiar debate.  Justice McLean wrote for the majority:

 

That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication, cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world. . . .

 

A book is valuable on account of the matter it contains, the ideas it communicates, the instruction or entertainment it affords.  Does the author hold a perpetual property in these?  Is there an implied contract by every purchaser of his book, that he may realise whatever instruction or entertainment which the reading of it shall give, but shall not write out or print its contents.[65]

 

          The counter argument focused on natural rights.  Justice Thompson wrote in dissent:

 

The great principle on which the author's right rests, is, that it is the fruit or production of his own labour, and which may, by the labour of the faculties of the mind, establish a right of property, as well as by the faculties of the body, and it is difficult to perceive any well founded objection to such a claim of right.  It is founded upon the soundest principles of justice, equity and public policy.[66]

          The majority reasoned that the common law of England was not necessarily a part of the common law of Pennsylvania.[67]  Because the roots of copyright protection lay in censorship, English common law concerning copyright was not suited to the conditions of Pennsylvania.[68]  Finally, Pennsylvania had developed its institutions before the first judicial recognition in England of a common law right in Millar v. Taylor.[69]

          As a result of Wheaton, common law in the United States was confined to a pre-publication right and the statutory provisions were held to supersede the common law upon first publication.  Wheaton resolved the debate between authors' rights and public rights, to the extent the Constitution left room for interpretation, in favor of the public.  The court cited Donaldson v. Becket for the proposition that the common law right did not exist in perpetuity.  Thus the Supreme Court followed the advisory opinions rather than the debate in the House of Lords.  It is argued, therefore, that a misreading of Donaldson thus institutionalized false notions of common law copyright and infected the writings of noted scholars such as Judge Learned Hand and Professor Melville Nimmer.[70]

 

Pre-Constitutional State Statutes

          In 1672, following his appointment by the General Court of the Massachusetts Bay Colony to publish a revised edition of the public laws, John Usher applied for copyright protection.  He feared that the printer would run additional copies and sell them without benefit to Usher.  Subsequently, the first copyright protection was issued in the colonies.

 

In ansr to the petition of John Vsher, the Court judgeth it meete to order, & be it by this Court ordered & enacted, that no printer shall print any more coppies then are agreed & pajd for by the ouner of the sajd coppie or coppies, nor shall he nor any other reprint or make sale of any of the same, without the sajd ouners consent, vpon the forfeiture and poenalty of treble the whole charges of printing, & paper, &c., of the whole quantity payd for by the ouner of the coppie, to the sajd ouner of the coppie, to the sajd owner or his assignes.[71]

          If one accepts the view that English common law protected literary works prior to 1710 and that the English common law applied in the colonies, then Usher was already protected.  Yet Usher, an established publisher who previously contracted with printers, perceived a need for additional protection in this instance.

          After Usher's request of 1672, one other attempt was made to secure an additional measure of copyright protection prior to the Revolution.  The Massachusetts House of Representatives passed a bill on 14 June 1772 giving William Billings exclusive rights for seven years for his New-England Psalm-Singer (1770).  Governor Hutchinson refused to sign the bill, saying that common law protections were sufficient.[72]  Why had Billings sought protection?  He may have had some concern that music was not as fully protected as literary works, notwithstanding the apparent opinion of the Governor of Massachusetts that music was entitled to the same protections.[73]  The courts in England were less than certain on the issue.  Five years after Billings’ petition, the English courts in deciding a case of apparent first impression certified that a sonata was a writing within the Statute of Anne.[74]  Billings also may have considered that music is less dependent on a printed medium, and express copyright protection could deter potential misuse.

          Andrew Law petitioned the Connecticut legislature for protection for his Collection of the Best Tunes[75] in 1781.  Claiming his production costs of £500 and unscrupulous counterfeiting by others, he requested the sole right to print and vend for five years.  He based his request on the principle that works of art ought to be protected.  Law did not author this particular work of art; he "made a large Collection of the best & most approved Tunes, Copies of some of which he purchased of the original Compilers, others he took from Books of Psalmody printed in England which were never printed in America. . . ."[76]

          Asserting that he had no protection from infringement, Law requested the same degree of protection available in other countries.  The legislature agreed, granting exclusive rights

 

to the sd. Memorialist, his Heirs, Executors, Administrators & Assigns for the Term of five Years next ensuing, strictly forbidding all the Subjects of this State, to reprint the same, & each & every of the sd. Tunes or Anthems, in the like, or in any other Volume, or Form whatsoever; or to import, vend, buy, utter, or distribute any Copies of sd. Tunes or Anthems or of any of them Reprinted beyond the limits of this State during the aforesaid Term of five Years. . . ."[77]

          Law succeeded where Billings did not.  In spite of that success, Law is credited with "engaging in endless angry correspondence with musical pirates who were, he claimed, `pillaging my books.'"[78]  Irving Lowens, who traced Law's many battles over infringement, finds Law's original petition to the legislature somewhat exaggerated.  Lowens notes that Law claimed exclusive rights to only one of the twenty-three tunes of his collection and that twenty-one were in the public domain.[79]  The title-page engraving Law purchased from Joel Allen for £500 was an exact copy of one by Henry Dawkins.[80]  Law himself may have borrowed the ideas of others by claiming the invention of shape-notes, generally credited to William Smith and William Little.[81]  Attitudes at the time were not disposed to condemn this free borrowing of artistic works; Law's attitude was the oddity.[82]

           Following Law's successful appeal to the legislature, John Ledyard sought protection for his personal account of a famous sea voyage, A Journal of Captain Cook's Last Voyage to the Pacific Ocean.[83]  The committee report of January 1783 on Ledyard's request stated:

 

Your Honours committee appointed to take into consideration The Memorial of John Ledyard prefer to this Assembly, take leave to report that in their Opinion a publication of the Memorialists Journal in his voyage round the Globe may be beneficial to these United States & to the world, & it appears reasonable & Just that the Memorialist should have an exclusive right to publish the same for a Reasonable Term, and as it appears that several Gentlemen of Genius & reputation are also about to make similar Applications for the exclusive right [to] publish Works of their Respective Compositions, your Committee are of opinion that it is expedient to pass a general bill, for that purpose and thereupon report the Annexed Bill.[84]

          Following the committee report on Ledyard's petition for copyright, Connecticut enacted in 1783 the first general copyright statute in the United States.[85]  The Act protected the author for a period of fourteen years, a provision borrowed from the Statute of Anne, and allowed a fourteen-year renewal if the author were still alive at the end of the first statutory period.  Infringement extended to printing, reprinting, or importing copies into the state without the consent of the "proprietor."  Damages were set at double the value of all of the infringer's copies.

          The Act is notable for several other provisions.  It denied protection to all books published in the past.  Authors were subject to losing their exclusive rights if they failed to make the work available in sufficient quantities at reasonable prices.  The Act would not protect any author residing in another state until that state passed a similar law.  An acknowledgment of the author's sole rights in his unpublished manuscript suggests an adherence to the common law concept firmly entrenched in American jurisprudence until 1976.  A further proviso states that "nothing in this Act shall extend to affect, prejudice, or confirm the Rights which any Person may have to the printing or publishing of any Book or Pamphlet at Common Law."[86]

          At about the same time as the Connecticut Copyright Act was passed, Joel Barlow advocated a national approach to copyright in a letter to New Jersey Congressman Elias Boudinot, then President of Congress.[87]  A committee consisting of Hugh Williamson, Ralph Izard, and James Madison was formed in March 1783 to consider "the most proper means of cherishing genius and useful arts through the United States by securing to the authors or publishers of new books their property in such works."[88]  Barlow's letter and the Connecticut Act were among the items submitted to the committee for its consideration.  Barlow's letter stressed the natural rights of the author: "There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination. . . ."[89]  Adopting much of this language, the committee submitted a favorable report in April 1783.  That language, however, was dropped when Congress passed a resolution on 2 May 1783 encouraging the states to grant a copyright of not less than fourteen years to authors or publishers of books not before printed.[90]  The Congressional resolution followed the Connecticut Act in many details, but natural rights apparently failed as a principal motive for the resolution.[91]

          The Massachusetts Act, which incorporated the language of Barlow's letter, preceded the Continental Congress resolution by several weeks.  Massachusetts enacted its statute in March 1783, approximately two months after that of Connecticut.[92]  The statute differs from Connecticut's by offering twenty-one years of protection and extending to all books published in the past.  Like Connecticut, Massachusetts limited reciprocity to states with a similar statute.

          Within a few years, twelve of the thirteen states had passed a copyright act.[93]  Only Delaware failed to enact a statute.  As a result, the laws of Maryland and Pennsylvania never went into effect, because each was not to become effective until every state passed a law protecting literary property.

          The lexicographer Noah Webster has been credited with championing copyright protection, but his actual impact on the spread of legislation among the states is disputed.  Webster himself credited the Reverend Timothy Dwight with pushing through the Massachusetts legislation.[94]  Webster claimed a visit to Annapolis in 1785 to lobby for the Maryland Act, but that Act was passed in the spring of 1783, more than two years before Webster's visit.[95]  Similarly, Webster reportedly travelled to Charleston in the spring of 1785 to promote adoption of a copyright law South Carolina enacted in 1784.

Webster's influence on the process in Virginia is more evident.  He solicited assistance from both Madison, then in the Virginia House of Delegates, and later George Washington.  Apparently his visit to the latter set the wheels in motion.  In New York, Webster likely limited his appeal to a private bill rather than the adoption of general legislation.  Although Webster's claim to have solicited for passage of a general act is criticized,[96] his petition to the legislature is dated 18 January 1783, before the passage of the Connecticut law.  Webster may have overstated his case for influencing New York, but his petition followed the generally accepted approach for that time period.

          The practical effects of the various state acts are difficult to gauge.  The lack of reciprocity among many states would have presented serious difficulties for even moderately successful works.  With the definition of infringement and its enforcement varying from state to state, it is not surprising that the only case to come before the Connecticut courts under the state copyright law involved interstate commerce.[97]

 

Adoption of the Constitutional Clause

          The states' enactments certainly smoothed the way for the patent and copyright clause of the Constitution.  The enactments indicate some consensus for the existence of copyright laws, if not their actual content.  The introduction and passage of the patent and copyright clause at the Constitutional Convention in 1787 produced no recorded debate.  Four and one half years after the precedent-setting Connecticut enactment, the nation's founders apparently found no substantial controversy in the purpose and utility of copyright laws.  Delegates to the Constitutional Convention did not have to grapple with detailed provisions and could include among Congress's enumerated powers the control of copyrights with some certainty of broad acceptance.  But it is less certain that in stating the utilitarian purpose of Congress's power the delegates consciously eschewed the natural-rights concept of protection in favor of the public's right.

          The delegates who met in Philadelphia in 1787 included many state legislators who had taken part in enacting the state copyright laws.  Those delegates were also familiar with the parade of inventors seeking patent protection.  The subject of intellectual property was not new; the models of legislation were fresh and unanimity among the states near complete.  No truly debatable issues were raised on August 18,[98] when Madison and Charles Pinckney of South Carolina put forth separate proposals for the protection of literary property.  Because Pinckney was involved in South Carolina's passage of the only general patent legislation, one commentator concludes that Pinckney can be credited with the patent provision and that he and Madison share credit for the copyright provision.[99]  Another commentator states that Madison is entitled to equal credit for the patent as well as the copyright provisions.[100]

          On 5 September 1787, David Brearley of New Jersey proposed adoption of the clause to become Article I, Section 8, clause 8 of the Constitution.  It passed unanimously.[101]  The lack of controversy regarding patents and copyrights carried over to the ratification process.  Nothing is contained in The Federalist regarding the patents and copyrights clause, except the following by Madison:

 

The utility of this power will scarcely be questioned.  The copyright 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.  The public good fully coincides in both cases with the claims of individuals.  The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.[102]

          Consensus probably does not account adequately for the lack of debate.  Individual property rights had expanded to embrace the concept of authorship, and balancing the public's right of access against monopolistic incentives had been an accepted feature of the law for three quarters of a century.  Still, whether consensus existed in 1787 is doubtful, because there is none even now.  Furthermore, the United States in 1787 had weightier matters to consider; states probably did not factor the protection granted to authors into their decision to join the union.

 

United States Statutes

          The patent and copyright clause was not unimportant.  Although the nation's political energies were preempted by other matters during the ratification process, the first Congress exercised its constitutional power to enacted copyright legislation in 1790.[103]  Petitions came before Congress in April and May 1789 from David Ramsay, Jedediah Morse, Arthur Greer, Nicholas Pike, John Fitch, and Angelhart Cruse seeking protection for both writings and inventions.[104]  The House postponed action to the second session.  Patent protection was separated from the copyright bill, and the Copyright Act became law on 31 May 1790.

          Two weeks later, on 14 June 1790, John Barry obtained the first federal copyright.[105]  The Act was amended in 1802 to add prints to the list of protected works and to require the affixation of a copyright notice.[106]  The Copyright Act of 1831 expressly included music and increased the initial copyright term from fourteen to twenty-eight years.[107]  In 1846, the Act creating the Smithsonian required copyright applicants to deposit a copy of their work with the Library of Congress.[108]  That requirement eventually led to the creation in 1897 of a separate copyright office within the Library of Congress.[109]  The Copyright Act of 1909 established major revisions and remained in effect until the recent Act of 1976.  The 1909 Act applied to all artistic works and added provisions for the compulsory licensing of mechanical reproduction of music.[110]

          American jurisprudence for many years held fast to the utilitarian purpose stated in the Constitution.  The Committee Report that accompanied the 1909 Copyright Act stated:

         

The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings. . . .

 

In enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public?[111]

          Although the law continues to adhere to the constitutional justification for granting copyrights, Congress has expanded authors' rights.  The 1976 Act extends protection to life plus fifty years[112] and allows the author to recapture works previously sold to others.[113]  Current proposals to recognize an author's moral right to prohibit alterations to his artistic creation, such as the colorization of black and white motion pictures,