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The Copyright Law

Chapter 1
Introductory

Copyright has to do with the craft of the author, composer and artist. The term is generally used in contrast to the common-law right and as implying a statutory grant by the Government of a species of monopoly for a limited time to encourage the production and publication of literary, dramatic, musical and artistic works. The statute relating thereto, which is about to be analyzed, is not a great human document struck off at a given moment of time like the Constitution upon which it is founded, but is the result of a gradual process of development to meet new needs and situations; and hence it will be profitable to glance first at the historical background of the subject of copyright.

Our whole law relative to literary and artistic property is essentially an inheritance from England. It seems that from the time “whereof the memory of man runneth not to the contrary” the author's right to his manuscript was recognized on principles of natural justice, being the product of intellectual labor and as much his own property as the substance on which he wrote it. Blackstone (2 Com. 405) associates it with the Law of Occupancy, which involves personal labor and results in “property”, something peculiarly one's own (as implied by the Latin root "proprius”). But ages before Blackstone, an Irish king had enunciated the same principle in settling the question of property rights in a manuscript: “To every cow her calf”.

When printing from type was invented and works could be reproduced in quantities for circulation, however, it seems that the author was without protection as soon as his work got into print.

In 1556, the Stationers' Company, made up of the leading pub

lishers of London, was established by royal decree for the primary purpose of checking the spread of the Protestant Reformation by concentrating the whole printing business in the hands of the members of that company, subject to the orders of the Star Chamber so that the Government and the Church could exercise effective censorship and prevent seditious or heretical works from getting into print. Hallam, 1 Const. History 238. It was essentially a means of controlling the press and in nowise afforded protection to the authors.

Under this decree all published works had to be entered in the register of the Stationers' Company, and in the name of some member of that company by virtue of which, supported by the Star Chamber, he successfully claimed the sole right to print and publish the work for himself, his heirs and assigns forever. In the course of time, and especially after the last of the old Licensing Acts expired in 1694, the ban against unlicensed printing was lifted and independent printers began to spring up and invade the sacred domain of the Stationers' Company, by reason of which the company applied to Parliament for a law to protect its alleged rights in perpetuity against these pirates. As the event turned out, the stationers got much less than they had reckoned on, for Parliament, instead of recognizing their perpetual rights, proceeded to pass a law limiting the exclusive right of publication to a paltry term of years. Drone, Law of Property in Intellectual Productions, 69.

This was the celebrated Statute of Anne (8 Anne ch. 19, 1710) which was the first statute of all time specifically to recognize the rights of authors and was the foundation of all subsequent legislation on the subject of copyright both here and abroad. Because of its historical importance in relation to the study of our own copyright laws, it is well to note some of its provisions.

So far as existing works were concerned, the statute provided that the "authors or their assigns” should have the sole right of publication for 21 years, but for new works the right was to run for 14 years, and the author was granted the privilege of renewal for 14 years more. Suitable penalties were provided for violation of the Act, but conditioned always upon entry of the title of the work in the Register books of the Stationers' Hall as evidence of ownership and deposit of copies of the work itself in certain designated libraries of the Kingdom. Somewhat later, as a further security to the general public so that “none may offend through ignorance of the copyright”, the provision for notice of such entry was required to appear on every copy of the published work.

While the statute seemed plain enough, the stationers nevertheless still contended that their perpetual rights were not taken away but that the purpose of the Act was merely to enable them to obtain speedier relief against piracy, this being the only thing they had sought from Parliament in the first place. For more than half a century the lower courts sustained them in this view by granting many injunctions, even after the expiration of the term fixed by the statute. But in the famous case of Donaldson v. Becket, 4 Burrows 2303 (1774), the judicial branch of the House of Lords ruled against them by the narrow margin of six to five, holding that the author or his assigns had, under the common law, sole rights in perpetuity only so long as the work remained unpublished, but that upon publication the duration of the right could only be for the terms fixed by the statute.

The operation of this statute did not extend beyond the realm and apparently contemplated only British books printed by British printers on British paper. The importation of books in foreign languages was expressly sanctioned without the recognition of any rights on the part of the foreign authors; but it said nothing about importation of English books printed or reprinted abroad. Such a contingency seemed out of the question, as the printing business had not as yet become an outstanding institution in the Colonies. But later on, had Benjamin Franklin chosen to enlarge his printing plant, it is conceivable that books rather than tea might well have become the bone of contention leading to the Revolution.

At the close of the Revolution, the several states passed laws to afford a measure of protection to authors, but these laws were limited in their operation to the boundaries of each state; and hence if the author of one state wished to secure protection for his work throughout the other states, he was obliged to comply with a multitude of laws. The same situation prevailed at that time in Europe, but on this side where all spoke the same language and read the same books a uniform national law soon became imperative.

The framers of the Constitution, therefore, embodied in that

immortal instrument a clause empowering Congress “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" (Constitution, Art. I, Sec. 8) simple and direct and fraught with wonderful possibilities, if only in those days there had been someone of vision to realize them. A little later in the very throes of her Revolution, France granted copyright protection to all authors throughout the world without the need of complying with formalities of any kind. But in the United States, there was no one to champion the cause of universal authorship; otherwise, the story of our domestic copyright law might have been very different. In the absence of such leadership, the Congress fell back upon the system of formalities and restrictions inaugurated by the old Statute of Anne, which had been enacted purely as a municipal measure to replace the Licensing Acts and, incidentally, curb the pretentious claims to perpetual copyright on the part of the members of the Stationers' Company.

There is no report of the committee stage of the proceedings that led to the first federal Copyright Act of May 31, 1790 (1 St. L. 124) and the Act itself must be looked to for enlightenment as to its purpose and policy. It is worth while to do so, for in fundamentals the law remains much the same today. The preamble recites that the Act was designed “to encourage learning," but this contemplated only works written by American authors or residents, printed on American-made paper from type set by American printers; and the importation and unauthorized reprinting (sometimes called pirating) of works by foreign authors were expressly sanctioned—unethical to be sure, but it did enable the freebooters to make available to the American public the best foreign literature in very inexpensive reprints at a time when American literature was wholly inadequate to meet domestic needs. “In the four quarters of the globe, who reads an American book”! exclaimed Sidney Smith as late as 1820 (quoted by Justice Holmes in United Dictionary Co. v. Merriam Co., 208 U. S. 260 (1908)).

The Act of 1790 assured protection to the author or his assigns of any “book, map or chart” for 14 years upon:

1. recording the title in the Register book of the Clerk's Office

of the District Court where the author or proprietor

resided; 2. publishing a copy of the record so made in one or more

newspapers for four weeks; and 3. depositing a copy of the work itself in the office of the Secre

tary of State within six weeks after publication. The privilege of renewal of the copyright for 14 years more was granted to the author or his assigns on condition of again entering the title and publishing the record. By subsequent Act (2 St. L. 171, 1802), the notice of entry, including the date thereof, was required to be inserted in every copy of the published work. Suitable penalties were provided in the case of infringement; and there was also a provision against the unauthorized use of an author's manuscript, thus recognizing the old common-law right before publication.

Thus the legislature seemed primarily solicitous to safeguard the public in general from offending against the Act and incurring the penalties through ignorance of the copyright claim, precisely as it is today. It is not so clear, however, why it was deemed necessary to shift the entire burden from those who might want to use the work to those who created it, but presumably it was because copyright is in the nature of a monopoly and, therefore, “odious in the eye of the law." Likewise, the courts from the beginning construed the Act very strictly and hence the author was obliged to proceed with the utmost caution along the tortuous copyright route lest any slip prove his undoing. In the first case that came before the Supreme Court, Wheaton v. Peters, 8 U.S. 591 (1834), the same legal question was presented as in the English case of Donaldson v. Becket, 4 Burrows 2303, and the Supreme Court reached the same conclusion as the House of Lords in construing the Statute of Anne, namely, that whatever exclusive rights the author might have in his manuscript at common law before publication, these were upon publication gone forever unless he had complied strictly with all the requirements of the Copyright Act.

Step by step new subjects were added, and the scope and term of protection enlarged. In 1802 prints were added (2 St. L. 171); in 1831, musical compositions (4 St. L. 436), but not the right of public performance (this right came for the first time in 1897,

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