The Origin of Two American Copyright Theories---A Case of the Reception of English Law

The Origin of Two American Copyright Theories
--A Case of the Reception of English Law --
Hideaki Shirata
http://orion.t.hosei.ac.jp/hideaki/twocopy.htm
1•@The Original Concept of Copyright in England
The concept of copyright emerged in England in the sixteenth century from the bylaws of the guild then monopolising the country's publishing industry. The guild was granted a charter of incorporation by Queen Mary in 1556 and reorganised itself as the Company of Stationers of London. With official recognition of the Company's monopoly, its bylaws and concept of copyright also came gradually to be acknowledged as those of an official institute. The quasi-right known as Stationers' Copyright was based on royal prerogative or letter patent covering the entire publishing industry as an estate. This monopoly was assigned to its members as a virtual freehold interest. Although the Stationers' Copyright was based on a prerogative which laid down three basic characteristics of Anglo-American copyright - namely that registration is indispensable for its protection, copyright was available not only to the author but also to purchasers, and it remains valid for a term that is a multiple of seven years - it gave no consideration whatsoever to the author's right [1].
England enacted the world's first copyright law in 1710 [2]. This statute has long been considered a turning point in the history of copyright as it clearly recognised the author's right. Contrary to this long-standing belief, however, this paper will argue, by a thorough investigation of the purpose and legislative record of the statute, that it was in fact enacted for the abolition of stationer's monopoly [3].
With respect to purpose, the statute granted an extension of the existing monopoly for 21 years and an exclusive right for new works for fourteen years with an option to renew for the same period. Moreover, the statute used the author's right only to justify the abolition of the monopoly.
This argument can be supported by the following three points.
First, a part deleted from the original draft of the 1710 statute clearly emphasised that authors were to be given priority over others with respect to copyright. Parliamentary records reveal that this particular part was removed under pressure from monopolistic booksellers.
Whereas the liberty which Printers, Booksellers, and other Persons have of late frequently taken in [the Liberty of] Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted and Published Books, and other Writings, without the Consent of Authors thereof, in whom ye undoubted Property of such Books and Writing as the product of their learning and labour remains or of such persons to whom such Authors for good Considera(c^)ons have lawfully transferred their Right and title therein is not only a real discouragement to learning in generll [sic] which in all Civilized Nations ought to receive ye greatest Countenance and Encouragemt [sic] but it is also a notorious lnvasion of ye property of ye rightful [or] Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: ...
That where any Author shall hereafter Compose or write any book or books and shall reserve to himself ye Copy or Copies of Such book or Books share or Shares thereof Or any Bookseller printer or other person who hath already purchased or acquired or shall hereafter purchase or acquire ye Copy or Copies of any Book or Books Share or Shares thereof in Order to print or reprint ye same That in any or either of these Cases from and after the Thenth Day of April, One thousand seven handred and ten, the Author of any Book or Books already Printed (4)
Second, there is the similarity between the Statute of Monopoly of 1623 [5] and the 1710 statute. The Statute of Monopoly was, needless to say, intended to abolish the monopolies so rampant during the Elizabethan age. It allowed 21-year monopolies for existing privileges granted without specific terms and 14-year monopolies for forthcoming inventions. The structure of the Statute of Monopoly is similar to the first section of the 1710 statute.
An act concerning monopolies and dispensations with penal laws and the forfeitures thereof, 21 Jac.1, c.3.
V. ... And if the same were made for more than one and twenty years, That then the same for the term of one and twenty years only, to be accounted from the date of the first letters patents and grants thereof made, shall be of such force as they were or should have been, if the same had been made but for term of one and twenty years
only, and as if this act had never been had or made, and none other, VI. Provided also, and be it declared and enacted, That any declaration before mentioned shall not extend to any letters patents 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 manufactrues within this realm, to the true and first inventor and inventors of such manufactures, ...
An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, 8 Anne, c.19.
... [T]he Author of any Book or Books already Printed, who hath not Transferred to any other the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the same, shall have the sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years,... and no longer; and that the Author of any Book or Books already Composed and not Printed and Published, or that shall hereafter be Composed, and his Assignee or Assigns, shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of Fourteen Years, to Commence from the Day of the First Publishing the same, and no longer;...
Third, there are the claims made by intellectuals around 1710. The Licensing Act of 1662 [6], which gave legal authority to the monopoly in the book trade, was repealed in 1695. John Locke contributed much towards its repeal, writing to peers in the House of Lords and strongly condemning the restrictions on science caused by the provisions of the Act and the monopolies of Stationers Company. (See,Appendix A.)
Although the 1710 statute aimed to abolish monopolies, monopolistic booksellers attempted to forge a case which would nullify its scheme and provide eternal protection for their businesses. We can see that in the actions brought after 1731 when statutory copyright protection began to expire. They even colluded to accomplish their goal [7]. A series of these actions known as the ``Battle of the Booksellers'' attracted considerable public attention in London [8].
Such activities aimed at establishing copyright as an eternal right were most apparent in Millar v. Taylor in 1769 [9]. As a result of the decision of the King's Bench in this case, copyright was understood, for five years until 1774, to be a kind of common law right eternal in nature. In this case, Sir William Blackstone and Lord Mansfield made a great contribution to promoting the plaintiffs' cause. Blackstone had previously published Commentaries on the Laws of England[10] in 1767 in which he interpreted copyright as a legal concept for the first time. Citing Lockean natural law
theory [11], he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brain work. Blackstone revised the description to emphasise the distinction between the common law right and statutory copyright after the Millar case was overruled in Donaldson v. Beckett in 1774 [12]. The distinction was, however, so technical that most readers found it difficult to comprehend. (See, Appendix B.)
The plot of the booksellers was ultimately defeated by the decision of the House of Lords in the Donaldson case, which established the basic structure of the concept of Anglo-American copyright in the nineteenth century. That is, when an author fixed
his creation on a tangible medium, he obtained a common law right that is eternal in nature. However, he would lose the common law right after the publication of his creation because of loseing physical occupancy or control on the creation. To avoid this inconvenience, a statute established privilage or monopoly that exclude others from utilizing author's work for limited term. Throughout the Battle of the Booksellers, on the other hand, lawyers had maintained that the principle of copyright should be based on Lockean natural law theory and this assertion came gradually to receive some degree of public recognition.
2•@The Reception of Copyright Law in America
The colonial government of Massachusetts enacted in 1672 a law that can be regarded as the first copyright law in British territory on the American continent. There is no evidence that the American colonies had any other copyright statutes after that until the 1780s. The reason for its absence can be explained by following three points. First, despite the fact that works of American authors were published in America, the number of works was limited and a large proportion of the American market was dominated by British authors. Second, authors in colonies were also editors and publishers. There was a sentiment or trade rule called ``courtesy copyright'' or
``mutual obligation'' among publishers, which effectively suppressed piracy. Third, there was little or no conflict of market share among publishers on account of the extensive and growing American market. The market was also strictly segmented. Each publisher often supported a specific political group confronting the others [13]. America gained cultural independence from England in tandem with the emergence of its political independence. The American publishing industry turned its attention more
and more to American authors, which brought the issue of the protection of authors to the fore. Although the trade courtesy copyright protected publishers, it afforded no protection to authors. Publishers paid little or nothing for the works of authors. Some authors began to lobby their government for legal protection of their copyrights. In the context of their demands, they considered copyright to be identical to the concept of author's right, and should thus have pleaded for the protection of their ``authors' right'' rather than ``copyright'', which was a right for publishers traditionally and legally.
The petitioners and other key persons who exerted great influence over the enactment of copyright laws in America had no way of knowing about the change in the law resulting from the Donaldson case of 1774. After the Boston Tea Party in 1773, the United States was in a state of war with England and ceased all trade with her until 1783. Some studies prove that Americans were not informed about the change of copyright law in England during this period [14]. Even if they had been informed about the change, the leaders of the Independence movement could hardly be expected to show much interest in the comparatively trivial matter of the reform of copyright law when they were preoccupied with the Revolution. Nevertheless, pirate editions of Blackstone's Commentaries of 1771 were freely available and sold well. This pirated edition was the one subsequently revised to accord with the Court's reasoning in the Donaldson case.
In these circumstances, American authors and legislators not familiar with the traditional concept of copyright could not consider copyright as anything but the common law right based on Lockean natural law theory. Hence, we can conclude that the idea or theory of copyright in the America of the 1780s was dominated by the natural law concept.
Legislators nonetheless formulated the copyright statute as a trade-regulating law, as had been the case in England. This course of action resulted from a recommendation of the Continental Congress on 2 May 1783 [15] in response to a petition from an American poet, Joel Barlow. After accepting the recommendation, many States began to enact their own copyright laws successively. Table 1 shows the statutes in chronological order of their enactment and a summary of their contents [16]. It should be noted that all legislation up to that of Maryland preceded the recommendation of Congress. In particular, the statute of Massachusetts, which was the heart of the publishing industry in the United States, clearly protected copyright as a kind of personal property. The nearby states of New Hampshire and Rhode Island also introduced the Massachusetts model. The map below shows those states in grey. It is said that those states tended to accept English law insofar as it conformed to their community policy. Where it did not, they would reject or modify it. Here, we can also see the same tendency regarding the reception of copyright law.
Journal of the Continental Congress
1783/5/2 Congress, ``Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their ... executors, and administrators and assigns, the copyright of such books for a certain time, not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their ... executors, administrators and assigns, the copyright of such books for another term of time not less than fourteen years, such copy or exculsive right of printing, publising and vending the save to be secured to the original authors, or publishers, or ... their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper [17]. ''
Some writers contend that states' copyright statutes in the 1780s were based on natural law theory. There were in fact only three statutes based on this theory; the others adopted the wording and concept of the English statute. These latter statutes provided the character of copyright as a monopoly or an exclusive right that would be allowed specially for the promotion of science and literature.
The statutes were not, however, mere copies of the English statute of 1710. Their wording suggests that legislators drafted their provisions from independent standpoints, with the exception of South Carolina. The legislators of Connecticut appear to have drafted their law in their own terms after referring to the 1710 statute, and the contents of this law ultimately affected the recommendation of Congress in 1783. Other states then enacted their own laws referring to the recommendation and the Connecticut law. The map above shows those states in black.
Paralleling the complex history of copyright in England, the structure of the concept was very complicated. The United States, with its undeveloped publishing industry, did not accept such complexity, but rather based the concept of copyright on simple and clear natural law theory. Nevertheless, they legislated along the line of the English statute. Thus, copyright in the United States had a dual structure. They could either explain the concept of copyright as a property right based on natural law or the statute as a law regulating trade and providing a limited term of monopoly.
This argument can be supported by the following three pieces of evidence. The first is the records of Constitutional Convention that provided a so-called ``intellectual property clause''. The second is the legislative records of the first copyright statute of the United States. The third is the descriptions of eminent scholars in the nineteenth century, James Kent and Joseph Story.
It seems there were two drafts which mentioned the intellectual property clause. One is called the Pinckney plan, and the other is the Madison plan [18]. Since there have been controversies about the contribution of Pinckney [19], I would like here to focus our attention on Madison, who undoubtedly contributed to the clause and is called
``the father of the intellectual property clause''. Madison's argument in the Federa list is often cited to demonstrate his notion of copyright.
Madison Plan
To secure to literary authors their copyrights for a limited time. To establish a university. To encourage, by premiums and provisions, the advancement of useful knowledge and discoveries...
Pinckney Plan
To grant charters of incorporation, To grant patents for useful inventions, To secure to Authors exclusive rights for a ... certain time, To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures...
The Federalist, No. 43
...The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of 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 [20]. In the Federalist, Madison seems to explain the nature of copyright as a kind of natural right. On the other hand, the description in his letter to Thomas Jefferson at the time of the publication of the Federalist and a part of his essay published posthumously reveals a different interpretation.
A Letter from Madison to Jefferson
...With regard to Monopolies, they are justly classed among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power as with us is in the many not in the few the danger cannot be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrified to the many [21].
An Essay of Madison
Monopolies tho' in certain cases useful ourght to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases --- the authors of Books, and of useful inventions, in both [of] which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temprary because under that limitation a sufficient recompense and encouragement may be given. ... Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight [22]. These documents prove that Madison accepted traditional English ideas of copyright. That is, he understood copyright as a monopoly granted for only a limited term. Why did he explain copyright as a natural right in the Federalist when he clearly understood that copyright and patent were inevitable monopolies to promote science and literature? He seemed to believe it would be easier to persuade the people, amid the current mood of antipathy toward monopolies and England, to accept copyright and patent as natural rights than as trade regulation laws which were monopolistic in nature. It is well known that the Americans adopted the common law after screening
aristocratic or prerogative elements out. The Founding Fathers understood the nature of copyright as a monopoly that was granted for administrative purposes to promote the sciences and they adopted copyright law after modifying its doctrine to suit American taste. That was America's first copyright statute, the Copyright Act of 1790[23].
The 1790 statute is characterised by its strict and onerous requirements for receiving legal benefits and protection. The question as to whether the plaintiff asserting his copyright fulfilled all the requirements of the statute was frequently the first matter of controversy in early copyright cases [24]. In practice, the requirements were extremely difficult to satisfy. It is therefore appropriate to view the 1790 statute as having been enacted only for the benefit of title holders who claimed and strove for their rights earnestly.
How did scholars view all of this? Here I would like to focus our attention on the doctrines of Kent and Story, who exerted strong influence over early American lawyers.
Commentaries on American Law
... It was for some time the prevailing and better opinion in England, that authors had an exclusive copyright at common law, as permanent as the property of an estate; and that the statute of 8 Anne, c. 19, protecting by penalties that right for fourteen years, was only an additional sanction, and made in affirmance of the common law. ...
This point came at last to be questioned; and it become the subject of a very serious litigation in the court of K. B. It was debated at the bar and upon the bench, with great exertion of the talent, and very extensive erudition and skill in jurisprudence. I was decided that every author had a common-law right in perpetuity, independent of statute, to the exlusive printing and publishing his original compositions. The court were not unanimous; and a subsequent decision of the House of Lords, in Donaldson v. Becket, [sic] in February, 1774, settled this very litigated question against the opinion of the K. B., by establishing that the common-law right of action (if any existed) could not be exercised beyond the time limited by the statute of Anne. ...
...The justice and policy of securing to ingenious and learned men the profit of their descoveries and intelelctual labor were very ably stated by [25].
Commentaries on the Constitution of the United States Power to promoted science and useful arts
S. 558. This power (Const. art. 1, S. 8, par. 8) did not exist under the confederation; and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common law right; ...In short, the only boon that could be offered to inventors to disclose the secrets of their discoveries, would be the exclusive right and profit of them, as a monopoly, for limited period [26].
Both of them explained that copyright was a right based on natural law or common law. Kent, in particular, was not satisfied with narrow statutory protection. He managed to extend the scope of copyright and to reinforce its protection by emphasising common law copyright theory. To achieve this purpose, he strongly supported the reasoning of the Millar case and disregarded that of Donaldson. This created a tradition of American lawyers preferring the Millar case to that
of Donaldson. On the other hand, the explanation of Story was too brief to describe the differences between copyright and patent. The readers of his explanation may understand that both concepts stand on the same base, namely natural law theory. He might confuse those concepts because he described them in the context of explaining the intellectual property clause in the Constitution.
Summing up, the idea of American copyright was divided into two streams. One was based on the wording of the statute and its practical function, and the other was o n academic doctrines. The Government adopted the traditional English idea of copyright and took a conservative attitude towards the expansion of its protection. Lawyers and scholars, on the other hand, advocated, as Blackstone had done, that there was a common law copyright that derived from Lockean natural law theory, and that the statute only gave it a written form. Under the influence of the Civil law copyright concept, they managed to establish common law theory and to expand that protection.
This leads us to ask how the courts understood the nature of copyright in the nineteenth century. The first case brought in the Federal Supreme Court was
the Wheaton v. Peters in 1836 [27]. In this case, the Court adopted a strict literal construction of the statute and denied the existence of common law copyright in the Federal jurisdiction. It is said that the Court had, throughout the nineteenth century, a conservative tendency that generally favoured literal construction. We may also see the same tendency in that case. Nevertheless, the reasoning in the first part of the Court's majority opinion distinguished so-called common law copyright and the statutory exclusive monopoly. The distinction shows that the Wheaton case was along the lines of traditional English theory established in Donaldson. Here,
the Wheaton case established the foundation of American copyright case law, and remained the leading case until O. W. Holmes Jr. modified it in the 1900s [28].
3•@Two American Copyright Theories
Hence, we can stand on two different bases when explaining basic theory or the nature of copyright in America.
One is an attitude coming from an historical understanding of copyright or a strict literal construction of provisions of statutes. Its adherents are called ``copyright pessimists''. They advocate that the protection of copyright should be minimum as long as it gives incentives for creation, and excessive protection of it generates chilling effects on younger authors and affects the promotion of learning and freedom of speech. Such theories are called ``regulative theory'' and are cautious towards the expansion of copyright protection[29].
The other attitude comes from academic doctrine under the influence of Civil law copyright theory. Its adherents are called ``copyright optimists''. They advocate that the protection of copyright is an actualisation of author's right directly derived from the natural right. Therefore, the expansion of copyright is basically in accordance with author's benefits and promotes creation. Therefore, copyright should not be subordinate to other legal concepts, and should at least be accorded equal status. Such theories are called ``property theory'' and are aggressive towards the expansion of copyright protection [30].
In the light of the development of information industries and increase in digital works, the government of the United States seems to have adopted the property theory even in statute after revision of the Act in 1976. She also aggressively promotes the strengthening of legal protection for so-called intellectual properties worldwide. Against this policy, however, some scholars warn tenaciously of excessive expantion of copyright protection, while advocating intellectual property policies which considers users' right as well.
As for Japan, which adopted the Civil law copyright concept from Germany in the 1890s and since then have not considered the full meaning of the original concept of copyright, almost all the legal profession seem to have accepted property theory. This tendency is promoted by the information industries both at home and abroad. In。