Gerald M. Levine, Co-author
Rights in Literary Property
The United States Copyright Office and many people on social media, particularly on Twitter, have been celebrating the enactment of the first national copyright act in this country that President Washington signed into law on May 31, 1790. The 1790 Act was largely adopted from an earlier statute enacted by the British Parliament in 1710, the Statute of Anne, hence the 305 years noted in the title.
Before there was statutory law literary property was governed by common law. As initially conceived in the years following the invention of movable-type in the fifteenth-century copyright attached to the physical product of an author’s work. He (it was almost invariably a “he” in this period) owned his manuscript, but the printer to whom he assigned the work for multiplication of copies for sale in the marketplace owned an exclusive property right in the work for a duration that extended (printers argued) to the end of time. The one departure from this imperative was that the author retained full rights if he self-published his work for private circulation. All this changed in the eighteenth-century.
The statutory copyright laws in Great Britain and the United States were revolutionary in declaring that authors owned their copyrights. As in the past copyrights could be freely assigned to printers/publishers for exploitation, but the change limited the monopoly to fourteen years with a renewal right for an equal amount of time. Although the right benefited authors by giving them a capital asset to exchange for monetary consideration—with the value then as now determined by the publisher or other investor—the laws were actually designed to benefit commerce and, ultimately, the public by increasing society’s cultural resources.
Two dramatic adjustments in particular have been made over the last 305 years. First, duration incrementally lengthened to the present term of life plus seventy years; and, second, the metes and bounds of protection have broadened. Initially, authors and their assigns were only protected from verbatim copying of works in their entirety. Incrementally, again, protection expanded to parts of the whole. The unauthorized taking of passages and characters, for example, became infringing, Rights also expanded to prohibit unauthorized preparation of derivative works, including translations, theatrical productions, and motion pictures. The adjustments were driven in part by the emergence of new technologies but also by the growth and demands of media conglomerates.
There are some who regard the adjustments apocalyptically as a departure from the pristine vision of the U.S. Constitution. Where in the past authors and their assigns enjoyed a monopoly for “limited times” there is now a monopoly that extends to at least two generations postmortem the author. In legislating rights there is always a winner. For this reason, it is useful to be reminded of the circumstances that led to copyright legislation because then too there were winners and losers.
The Statute of Anne
Although the first in the States as united the 1790 Act was not the first copyright law passed in America. Seven years earlier the State of Connecticut had passed a copyright law acting on a motion of the Continental Congress (1783) and eleven other States followed with their own legislation between 1783 and 1786.
The stated purpose of all these acts was protecting authors and their assigns against unauthorized copying of works by providing robust legal tools to fight opportunistic appropriation. They represented a turning away from the old economic model described above. The new model confirmed copyright in the author as it had been under common law, but decreed a limited monopoly. Under the Statute of Anne copyrights on previously published books were given a twenty-one year reprieve. One of the advantages for authors under this model is that the rights reverted to the author after fourteen years; and assigns could exercise rights for the renewal period only with the author’s permission. This scheme is presently built into the 1976 Act as a nonwaivable statutory right of termination. It gives authors whose books have market power a chance to capture unrealized value with a second round of bargaining. It requires publishers to renegotiate exclusive licenses for works for the balance of the terms of copyright if they want to continue enjoying the fruits of their bargain with authors.
The Statute of Anne turned the book trade upside down. Its Preamble reads, Aprinters, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families.@ (Emphasis added). For all the melodrama attached to Atheir very great detriment, and often to the ruin of [authors] and their families@ the Statute of Anne was mainly concerned with breaking the monopolistic power of member-printers of the Stationers= Company of London over printing and marketing books. The Statute of Anne was a pro-commerce act packaged as a gift to authors and their assigns. By decreeing a limited right, the laws effectively created a competitive market for books, ultimately for the benefit of the public. The Statute of Anne, in effect, created the public domain.
However, in one respect the language of the preamble to the Statute of Anne is misleading in stating that “the printers, booksellers, and other persons have of late” done the things that caused Parliament to respond the way it did. The acts of which printers and booksellers stood accused were not “of late.” There was a complicated history underlying printers’ claim of property rights that reached back two hundred and thirty seven years.
Disruption by Technology
It is not generally appreciated that the modern concept of copyright evolved from a disruption that occurred in 1473 when William Caxton returned to London with a new technology for producing books. The old technology employed workers in scriptoria copying books by hand. By the time Parliament acted in 1710 printers had achieved an “unbounded monopoly” in the production and marketing of books through government fiat.
The culture of reading developed steadily after Caxton began operating his press as the community of readers expanded and acquired a taste for a greater variety of writings than had previously been available. By the mid-1550s there had developed a significant pool of readers now serviced by a disorderly industry of organized and unregulated presses that came increasingly under government surveillance for seditious, heretical, and immoral writings. In 1556 the Star Chamber issued a decree on its own authority regulating the number of presses operating in London. In 1557 the Stationers= Company whose unofficial existence is traceable to a company of scriveners formed in 1403 was officially recognized to bring order to the book trade.
Under this decree as enforced by the Stationers= Company no book could be printed without its having been approved; and, if approved registered on the company=s registry with the date and name of the printer. In 1585 the Star Chamber issued another decree restraining the production of books to those licensed by censors appointed by the State and Church. Licensing effectively shut down unofficial presses, although not the circulation of contraband books imported from the Continent or entering the market from surreptitious printers.
The Star Chamber was abolished in 1640 and the licensing decrees it previously issued were replaced in 1662 by the Licensing Act, which prohibited the printing of any book unless first licensed and entered in the registry of the Stationers= Company. This strengthened the claims by its member-printers that upon purchase of authors’ copyrights they became the proprietors of the works, in perpetuity. When it came to litigating the issue printers stood upon Athe ancient usage of this company,@ namely that Awhen any books or copies, were entered in their register to any of the members of that company, such persons were always reputed the proprietors of them, and ought to have the sole printing of them.@
Books (according to the By-Laws of the Company) were “constantly bargained and sold, amongst the members of the company, as their property, and devised to the children and others, for legacies, and to their widows, for their maintenance.” As result of this “ancient usage” printers developed a business model of purchasing authors’ works and acquiring ownership of them to the exclusion of any further consideration to the author beyond the purchase price.
Bringing Forever to an End
It was this “ancient usage” that Parliament abolished by the Statute of Anne. It overturned customary practice and substituted a new economic model for the book trade. At this point the Stationers= Company and its members did what businessmen do in every period, they hired the best lawyers money could buy to protect their threatened interests; among them were such legal luminaries as William Blackstone and William Murray, later Lord Mansfield. Printer-members commenced and prevailed in a number of litigations against nonmember printers, but not on the applicability or construction of the Statute of Anne.
The decision to frame this issue for litigation was made when a nonmember printer began competing with an edition of James Thompson’s The Seasons. Under the Statute of Anne The Seasons fell into the public domain on April 11, 1757. Thompson’s assignee, the printer to whom he had sold his rights, sued for an injunction under common law principles—Millar v. Taylor (1769)—and prevailed in Chancery, Lord Mansfield then being the Chief Justice of King’s Bench and a dominant voice in favor of rights to copy for a duration without end. In summing up his position, Lord Mansfield stated “that, by common law, an author is intitled (sic) to the copy of his own work, until it has been once printed and published by his authority. . . . The property in the copy . . . is equally an incorporeal right. . . . The property of the copy . . . may equally go down from generation to generation, and possibly continue for ever.”
The argument in Millar centered on two points: whether authors owned a right in perpetuity? And if they did whether their assignee’s rights for the same duration were curtailed by the Statute of Anne? The court held in plaintiff’s favor with one dissent—“the first instance of a final difference of opinion in this court” (Lord Mansfield). Authors’ rights, therefore its assignees’ rights were perpetual. An appeal was lodged but the parties settled the case before it proceeded to the House of Lords.
The House of Lords
Fortunately, posterity was not deprived of an answer to this interesting question of first impression because at this point another nonmember printer, Alexander Donaldson, was also caught printing and selling a competing edition of The Seasons, and became a defendant in a new action commenced by the successor proprietor of the copy—Andrew Millar having died before the judgment in his action—in a case entitled Beckett v. Donaldson. Donaldson suffered the same fate as Taylor. Chancery entered an injunction, but Donaldson appealed its decree to the House of Lords, and eventually prevailed there (1774) (caption reversed when Donaldson became the petitioner and it has come down to us as Donaldson v. Beckett.)
After listening to arguments and Lords’ opinions, which were mixed on the two salient issues, Lord Camden called for a vote. The Lords voted in favor of authors’ copyright but only for the statutory period legislated in the Statute of Anne, and it dissolved the injunction.
The astonishing flowering of genre writing and development of style in the eighteenth century came after the Statute of Anne. The United States did not experience this transformation in the same way but it was the beneficiary of this flowering and took advantage of it by pirating the best writings Great Britain had to offer. The 1790 Act expressly excluded protection for foreign authors. In fact, the Act encouraged piracy and American printers continued the practice condemned in Great Britain under the Statute of Anne until the latter years of the nineteen-century.
Solving Yesterday’s Problems
Legislation is generally past oriented in that it responds to yesterday’s problems. The new statutory model of copyright was very good at solving the problem legislators understood it to be, but the old mind-set was in the process of dissolving. The practice of taking, adapting, and mixing from earlier authors to create new works had a long cultural history. It was not condemnable under either the Statute of Anne or the 1790 Act. However, once copying the entirely of the work was declared illegal the way was opened for pirating its individual parts. In a couple of conspicuous instances authors found their characters reintroduced in other authors’ works.
These refinements only came later in both Great Britain and the United States through either organized demands for protection or litigation. Fair use was first analyzed and applied in an 1843 case, Folsom v. Marsh, 9 F. Gas. 342, 344 (C.C.D. Mass. 1841) by the very appropriately name Judge Story. Authors’ exclusive right to dramatize their works was recognized in an 1856 amendment. Unauthorized translation was recognized as infringement in the 1870 Act after a lawsuit involving an unauthorized translation into German of Stowe’s “Uncle Tom’s Cabin: Or, Life among the Lowly,” Stow v. Thomas, 23 F. Cas. 201 (Circuit Court, E. D. Pennsylvania.1853). Numerous cases followed and continue to chart the boundaries of copyright. Most recently, the Conan Doyle estate argued vainly in Klinger v. Conan Doyle Estate, 988 F.Supp. 2d 879 (N.D. Illinois, Eastern Division 2013), aff’d 755 F.3d 496 (7th Cir. 2014) that Sherlock Holmes and Dr. Watson remained in copyright after 1923, which they do only to the extent of new additions to their characters introduced in post-1923 stories (Watson’s wedding for example). A second decision on the subject of attorney’s fees reiterated the court’s holding that the estate’s business model was “a form of extortion” and it was time “in its own self-interest, [to] change[ ] its business model.” 761 F.3d 789 (2014).
Copyright law has not only expanded in duration to a point many commentators find objectionable—there is presently a moratorium of works falling into the public domain until January 1, 2019—it has added protections undreamed of in 1710 and 1790. What started out as a right to exclude others from copying books in their entirety evolved over time to exclude others from copying ever smaller parts of the whole. In so doing copyright law has expanded the concept of ownership by giving authors and their assigns—most notably media corporations and estates—the right to claim fees for permission or sue for damages for any unauthorized taking of component parts of works for which they control rights even if the taking is fair.