United States Copyright Law

 

Copyright Clause and First Copyright Law

 

The interests of authors in protecting their works found expression in the earliest days of the new American republic.  Andrew Law, John Ledyard and Noah Webster secured protection of their individual works in 1781 and 1782 and advocated standard copyright protection during that period and beyond. 

 

The Connecticut General Assembly enacted a general copyright law on January 8, 1783 – six years before the Constitution came into being – which protected the author for a period of 14 years and allowed a 14-year renewal if the author were still alive at the end of the initial term.  On January 10, 1783, author Joel Barlow (Noah Webster’s friend and Yale classmate) furnished the Continental Congress with the Connecticut copyright law, along with a letter recommending its concepts nationally.  Barlow’s letter is noted in the Continental Congress’ official record as having been referred to Hugh Williamson, Ralph Izard and James Madison on March 26, 1783.

[1]  [2]

 

Two weeks earlier, on March 10, 1783, on the motion of Hugh Williamson, a committee was appointed “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.”

[3] 

 

On May 2, 1783 the recommendations of that committee, composed of Williamson, Izard, and Madison, gave its recommendation:

 

“The committee . . . to whom were referred sundry papers and memorials from different persons on the subject of literary property, persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius. . . .”

  [4]

 

On that same day, May 2, 1783, based on the committee’s report (and sent out to each of the States by Elias Boudinot on May 6, 1783), the Continental Congress resolved that it be recommended to individual states under the Articles of Confederation:

 

“to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their executors, administrators, and assigns, the copy right 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 copy right of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws under such restrictions as to the several states may seem proper.”

            [5]

 

            Most of the States then adopted copyright laws, but the term of protection varied.  Seven states opted for two 14-year terms, as Connecticut had. One other created a single 14-year term.  Yet another implemented a single 20-year term, while three states adopted a single 21-year term.

 

            As time passed, and it became apparent that governance under the Articles of Confederation was unworkable, those now known as the Founding Fathers began to craft the document that would become the United States Constitution.  Copyright rights do not appear to have been of primary concern.  For example, George Washington’s working draft of the Constitution, dated August 6, 1787, did not contain a Copyright Clause.

[6]

 

However, on August 18, 1787, the first draft of the Copyright Clause of the Constitution was submitted by James Madison and Charles Pinckney to a Committee, defining as a power of the federal government “To secure to literary authors their copy rights for a limited time.”

[7]    

 

On September 5, 1787, a Committee reported its proposal for a Copyright Clause which met with approval: “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.”

[8]

 

The final Constitution was adopted by the entire convention on September 17, 1787 and later ratified by the states.  The Copyright Clause gives Congress the power:

 

“To Promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.”

[9]

 

            There is no record of any debate concerning this clause, other than what is covered above, except from James Madison, who on January 23, 1788, in one of his letters in what now comprises The Federalist Papers, urged the citizens of New York to ratify the Constitution.

[10]

 

In so doing, Madison offered the following elaboration on the Copyright Clause:

 

“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.”

[11]

 

            After the Constitution was ratified by the states, and amid discussions concerning amending the new Constitution to include a Bill of Rights, several letters were exchanged between Thomas Jefferson and James Madison which emphasized concerns, based on experience, to ensure that oppressive government, monopolies and censorship did not become a fact of life in the new republic.  This exchange began with a July 31, 1788 letter from Jefferson (then in Paris) to Madison in the US:

 

“I sincerely rejoice at the acceptance of our new constitution by nine states.  It is a good canvas, on which some strokes only want retouching.  What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights.  It seems pretty generally understood that this should go to Juries, Habeas corpus, Standing armies, Printing, Religion and Monopolies.  . . .  But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and Monopolies, in all cases, than not to do it in any.  . . .   The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression. . . .  I hope therefore a bill of rights will be formed to guard the people against the federal government, as they are already guarded against their state government in most instances.”

  [12]

 

Madison responded to Jefferson on October 17, 1788, further emphasizing the need for a bill of rights and addressing Jefferson’s concerns regarding the abuses of governments.  While the entire letter must be read to fully understand the discussion, Madison revealed some key points in the following passage:

 

“Wherever the real power in a Government lies, there is the danger of oppression.  In our Governments the real power lies in the majority of the Community . . . Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may gradually & well-timed advances, finally erect an independent Government on the subversion of liberty.  Should this danger exist at all, it is prudent to guard agst. It, especially when the precaution can do no injury.  At the same time I must own that I see no tendency in our governments to danger on that sign. . . .  With regard to monopolies they are justly classified 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 wholly 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 the 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 and not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

[13]

 

            Jefferson was obviously persuaded by Madison’s elaboration, which evidently mollified his concerns with regard to copyright rights.   On March 15, 1789, Jefferson replied to Madison’s letter, stating, in part, that “Your thoughts on the subject of the Declaration of rights in the letter of Oct. 17.  I have weighed with great satisfaction.  Some of them had not occurred to me before, but were acknowledged just in the moment they were presented to my mind.”

[14]

 

            When Madison sent a draft of the Bill of Rights to Jefferson, Jefferson responded to him on August 28, 1789 with a request for an addition to Article 9: “Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding – years but for no longer term and no other purpose.”

[15]   

 

Seemingly having further thoughts, Jefferson originated a letter to Madison on September 6, 1789 concerning “the question Whether one generation of men has a right to bind another, seems never to have been stated either on this or our side of the water.”  In an extensive letter concerning this, he stated the following concerning copyrights:

 

“Establish the principle also in the new law to be passed for protecting copy rights and new inventions, by securing the exclusive right for 19, instead of 14, years [a line entirely faded] an instance the more of our taking reason of our guide instead of English precedents, the habit of which fetters us, with all the political herecies of a nation, equally remarkable for it’s encitement from some errors, as long slumbering under others.”

[16]

 

            The Constitution was thereafter amended to include the Bill of Rights and adopted on December 15, 1791—without any mention of monopolies or copyrights in the ten new amendments.

 

            The only other writing that has been found concerning the Copyright Clause comes from James Madison, written sometime after he left office as the President of the United States in 1817.   The writing’s exact date is not known, but while addressing a variety of subjects, including monopolies, Madison remarked as to intellectual properties:

 

“Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse.  The Constitution of the U.S. has limited them to two cases, the authors of Books, and of useful inventions, in both 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 temporary, because under that limitation a sufficient recompense and encouragement may be given.”

[17]

 

            In his First Annual Address to the House and Senate in Federal Hall in New York City on January 8, 1790, President George Washington stated that  “there is nothing which can better deserve your patronage, than the promotion of Science and Literature.”[18]  The Senate responded to President on January 11, 1790 with “Literature and science are essential to the preservation of a free constitution: the measures of governments should, therefore, be calculated to strengthen the confidence that is due to that important truth.”

[19] 

 

The House responded similarly to the President on January 12, 1790 with “We concur with you in sentiment . . . that the promotion of science and literature will contribute to the security of a free Government; in the progress of our deliberations we shall not lose sight of objects so worthy of our regard.”

[20]

 

            While several drafts of the first American copyright law were reviewed in Congress, the Statute of Anne became the basis for federal copyright protection in the US.  The first copyright act was signed into law on May 31, 1790 as the Copyright Act of 1790, “An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the Authors proprietors of such copies, during the times therein mentioned.”  The law granted “the author and authors . . . the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of 14 years” and a renewal term of 14 years, or a total of 28 years.  The act required compliance with certain formalities which included notice, deposits, and publication in the US, a renewal filed within 14 years and certain recordation procedures in the federal district court where the author resided.  If any of these formalities were not followed – the work was not protected and consequently free to be copied by anyone without having to obtain permission from its owner.  In other words, it was in the public domain.

[21]

 

 

 

Copyright Act of 1802

 

            After the American Revolution (1775-1783), print engravings were made to commemorate famous battles, to depict historical events, and to honor generals and noted statesmen. Prints also became important as a vehicle for the spread of political and social ideas. By the 1800s the first truly American printmaking movement had come into being.

[22]

 

On April 29, 1802, the 1790 Act was amended to add prints to the list of protected works and to require the affixation of a copyright notice.

[23]

 

 

Copyright Act of 1831

In 1803, Noah Webster an early and persistent proponent of perpetual copyright terms observed that "Men are strangely influenced by habits of thinking, and it is a common opinion that literary composition . . . should be held only for a limited time, while a horse or an acre of land . . . is permanent inheritable estate." [24]

While in England in 1825, Noah Webster learned that Parliament had just passed a law extending the term of protection of authors to 28 years from 14 years.  On his return to the US, he wrote to then-Congressman Daniel Webster on September 30, 1826:

“I sincerely desire that while you are a member of the House of Representatives in Congress your talents may be exerted in placing this species of property on the same footing as all property, as to exclusive right and permanence of possession.  . . .  If anything can justly give man an exclusive right to the occupancy and enjoyment of a thing it must be the fact that he made it.  The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce is never questioned.  . . . I sincerely wish our legislature would come at once to the line of right and justice on this subject, and pass a new act, the preamble to which shall admit the principle that an author has, by common law, or natural justice, the sole and permanent right to make profit by his own labor, and that his heirs and assigns shall enjoy the right unclogged with conditions.”

[25]

            On October 14, 1826, Daniel Webster responded to Noah Webster:

“Your opinion, in the abstract, is certainly right and incontrovertible.  Authorship is, in its nature, ground of property.  . . .  I confess frankly that I see, or I think I see, objections to make it perpetual.  At the same time I am willing to extend it further than at present, and am fully persuaded that it ought to be relived from all charges, such as depositing copies, etc.”

[26]

 

            In 1829, Noah Webster persuaded William Ellsworth, a member of the House Judiciary Committee, to try to enact a new copyright law and, on January 21, 1830, Ellsworth introduced H.R. 145 to increase the term of copyrights from 14 years to 28 years and to add musical compositions to the protected works, among other things.

[27] 

The Judiciary Committee’s December 17, 1829 report noted that England had extended its term, and other European countries had longer terms at the time (France, life plus 50, Russia life plus 20, and Germany, Sweden and Norway, perpetual) and stated:

“. . . that the law of copyright ought to extend to musical compositions, as does the English law.  . . .  but chiefly to enlarge the period for the enjoyment of copy-right, and thereby to place authors in the country more nearly upon an equality with authors in other countries.  . . .  It is believed that this comparison shows that the United States are far behind the States of Europe in securing the fruits of intellectual labor, and in encouraging men of letters.  . . .  Upon the first principals of proprietorship in property, an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor.  . . .  We ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science.”

            [28]

 

            During the debate of H.R. 145, Congressman Hoffman expressed concern that “it went to establish a monopoly of which authors alone would reap the advantage, to the public detriment.  .  .  .  There was an implied contract between them and the public; They in virtue of their copyright, sold their books to the latter at an exorbitant rate; and the latter, therefore, had the right to avail themselves of the work when the copyright expired.”  He moved, but failed to persuade his colleagues, to strike the extension of the term to 28 years.  Congressman Ellsworth responded  to Hoffman’s criticism by stating that the bill would “enhance the literary character of the country, by looking forth to men of learning and genius additional inducements to devote their time and talents to literature and the fine arts.”   Congressman Verplanck added that “the whole argument was founded on a mistake, apparent to the eye of common sense, and repugnant to the law of the land; There was no contract; the work of any author was the result of his labor;  .  .  .  That statute did not give the right, it only secured it.”

[29]  

 

The Copyright Act of 1831 was then enacted into law adding musical compositions to the list of protected works and increasing the initial copyright term from 14 to 28 years.

 

 

copyright law Revisions from 1832 to 1908

 

            On August 18, 1856, dramatic compositions were added to the roster of protected works under American copyright legislation, and on March 3, 1865, photographs were included among statutorily protected works.

[30]  

 

On July 8, 1870, works of art achieved the status of protected works, and copyright rights were reserved to authors for certain derivative works, including translations and dramatizations.

[31] 

 

On March 3, 1891, the Chace International Copyright Act became law.  For the first time, foreign authors enjoyed copyright protection in the US, thus beginning to pave the way for US authors to attain copyright protection abroad.  However, the Chace Act required foreign authors to observe the same formalities as US authors to obtain protection.  It also added the first manufacturing clause that limited copyright protection in this country to books printed in the US specifically to protect the interests of US printers, an act of territorialism reminiscent of the Stationer days in England.

[32]

 

 

Copyright Act of 1909

 

            In a December 1905 address to Congress, President Theodore Roosevelt urged Congress to update and modernize American copyright law:

 

“Our copyright laws urgently need revision.  They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public .  .  .  This deserves prompt consideration.”

[33]

 

Congressional response to Roosevelt’s call to action demonstrates a peculiar dichotomy in American copyright law.  A Senate Report noted that “The action of Congress in a copyright law is frequently referred to as ‘a grant’ of copyright.  What the Constitution authorizes Congress to do is, however, not to ‘grant’ but to ‘secure’ the ‘exclusive rights’ which constitute copyright.”

[34] 

 

A later House Report viewed the issue differently:

 

            “It will be seen, therefore, that the spirit of any act of which Congress authorized to pass must be one which will promote the progress of science and useful arts, and unless it is designed to accomplish this result . . . it would be beyond the power of Congress.   . . .  The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best.  . . .  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?  The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.”

[35]

 

Congress reviewed the duration of copyright, then 28 years plus a renewal time of 14 years—a total of 42 years, and in considering what the term should be, a consensus began to emerge that it ought at least: a) “to assure to the author provision for his old age;” b) “to assure the community the benefit of his own revision of his works as long as he lives (only a complete control of them will do this);” c) “to enable him to provide for his children until the reach the age where they are likely to be self-supporting.”   However, “the provision ought not to tie up automatically all copyrights whether or not they require a term so long, experience shows that a large percentage of them do not.”

[36]

 

Congress also reviewed the then-extant European life of the author plus either 30 or 50 year terms.  One consideration was that preserving the renewal period was to the advantage of the author because it frequently happens that an author sells his rights to a publisher for small sum and that “if the work proves to be a great success and lives beyond” it’s initial term, that it wanted “the author to take the renewal term.”   Ultimately, Congress concluded that by leaving the initial term at 28 years and extending the renewal term from 14 years to 28 years, it “ought to be long enough that there would be no probability of its being taken away from him in his old age, when, perhaps, he needs it most.”

[37]

 

Congress also noted “an entirely new art . . . as the result of ingenious and elaborate invention” and that these “machines . . . are capable . . . of producing sound in the air . . . [and] duplicate the skillful performer many hundreds of times.”  But that “these inventions . . . are . . . as dead bones without the vivifying spirit of the musician, it is he who creates the though they reproduce and sell.”[38]  The new technology allowed the producers of these machines to enjoy copyright protection without compensation to the composers/musicians under the copyright laws.  Congress rectified this and dispelled the contrary point of view:

 

“It has been said that to give to the composers the exclusive right to control their musical compositions . . . might foster an odious monopoly by permitting some rich corporation to purchase all the compositions of the most famous artists and thus prevent their competitors in business from being able to offer to the public the same music which they control.  But the committee has thought that this was a right of private contract . . . and the fear of monopoly and combination was felt to be a groundless . . . First, the anti-trust legislation of the United States . . . it is hardly possible for any combination to exist . . .; and second, that the protection of composers in the use and sale of their compositions will necessarily so encourage and stimulate composers that supply the music . . . will be practically unlimited, and no monopoly will be possible.”

[39]

 

            The Copyright Act of 1909 took effect on July 1, 1909, with the immediate result that a published work to be protected and remain the exclusive property of its author, artist or owner, was subject to compliance with a number of formalities, some of which were: a) a proper copyright notice in a proper location; b) registration, followed by renewal within 28 years of the date of publication to extend the term of protection to 56 years; c) publication in the US unless certain administrative requirements were followed (however, foreign languages of foreign origin were exempted); (d) dating the copy from the date of first publication; and (e) the introduction of the compulsory license for musical works.

[40]

 

 

 

Copyright Act of 1912

 

The 1909 Act was amended in 1912 to add motion pictures to the list of protected works.  Previously, what protection motion pictures had was as photographs.   Again, technology had advanced so far that the copyright law needed revision to keep pace with progress:

 

“The occasion for this proposed amendment is the fact that the production of motion-picture photoplays and motion-pictures other than photoplays has become a business of vast proportions. The money invested therein is so great and the property rights so valuable that the committee is of the opinion that the copyright law ought to be so amended as to give them distinct and definite recognition.”

[41]

 

 

 

Sound Recording Amendment of 1971

 

Congress continued to craft copyright law on an ad hoc, reaction to circumstances basis rather than in a policy-driven fashion.   The Sound recording Amendment of 1971, effective on February 15, 1972, extended copyright protection to sound recordings fixed or first published on or after that date.  It was Congress’ solution to the "record piracy" problems that had been created by the development of the audio tape recorder.

 

 

Copyright Act of 1976

           

            Not long after the 1909 Act was implemented, a number of bills were introduced to change the term of protection to life of the author plus 50 years and to revise the law so the US could join the Berne Convention.  There was broad support for such revisions.   The Author’s League of America supported compliance with international standards because authors who produce at an early age might not be protected in their later years and because their return was small.  The Committee on Publications for the Mother Church supported it because it would extend protection for the works of Mary Baker Eddy.  The American Library Association supported life plus 30 years as it would be enough to take care of the author’s family.  Music and film industry interest also supported a longer term and international conformity.  Opposition came from radio broadcasters, record manufactures, producers of “talking machines,” two patent attorneys and a publisher because life plus 50 years would make it hard to determine when a work goes into the public domain and who owns it until it does.  Opponents also argued that a longer term would not just benefit the author’s immediate heirs, but great grandchildren as well, and that by lengthening the term, it would prevent “cheap editions” of work from coming out for an additional 30 years.

[42]

 

            In 1955, Congress instructed the Copyright Office to study possible revisions to the 1909 Act and it later, partial revisions.  In that study, the Copyright Office concluded that:

 

“The basic consideration is to determine what duration of limited times will best promote the progress of science and useful arts.  .  .  . it is to the author’s advantage, and to the advantage of the public, to provide an adequate term of protection to make it commercially feasible for publishers and other distributors to aid him in exploiting his work.  The term of protection should be sufficient to provide an adequate economic return to all of these interests, if it is true, as seems to be assumed in the Constitution, that it is to benefit of the public to promote the creation and dissemination of intellectual works.  .  .  .  After the author, his family, and the distributors, have had a fair economic return, there appears no logical reason to restrict the public’s access to the work by continuing the benefit to remote heirs, or to the distributors or successors.”

[43]

 

On July 7, 1961, the Register of Copyrights issued a report concerning revision of the 1909 Act, stating that the 1909 Act needed overhauling because:

 

“. . . the changes in technology during the last half century that have affected the operation of the copyright law.  Commercial radio and television were unknown in 1909.  Motion pictures and sound recordings were in a rudimentary stage. New technique for reproducing printed matter and recorded sounds have since come into use.   These and other technical advances have brought in new industries and new methods for reproduction and dissemination of . . . the subject matter of copyright.  And the business relations between creators and used of copyright materials have evolved into new patterns.”

[44]

 

            Comments concerning revisions were also submitted as part of the Register’s report and study, including a statement from Irwin Karp, counsel for the Author’s League of America, debunking the presumed benefit of the public domain:

 

“In fact, the advantage of the ‘public domain’ as a device for making works more available to the public is highly overrated; especially if availability is equated with ‘low cost’ to the public.  In contrast with the fact that the prices charged to the public do not necessarily come down, or the supply of the work increase, when copyright terminates—the paperback book is evidence that copyright protection is not incompatible with mass circulation at low cost to the public.”

[45]

 

            In analyzing the state of copyright protection at the time, the Register acknowledged that the term of life of the author plus 50 years was being advocated but the Register recommended instead the existing system of renewals remain in place but to extend the protection by having an initial term of 28 years and a renewal term of 48 years to achieve the equivalent of life plus 50 years.[46]  The Registrar also noted that the existing term (56 years) was too short:  “A substantial number of works .  .  . continue to have commercial value beyond the present term of 56 years.  In some cases the author is still living or there are still dependents of a deceased author when the term expires.  We are sympathetic to the view that the author during his old age, or his dependents if he dies prematurely, should continue to have benefits afforded by copyright.  A maximum 56 years is not enough to assure this in all cases.”

[47]

 

The Register later changed his position concerning what the terms of copyright protection should be, and in a supplementary report proposed the term of life plus 50 years for works published after January 1, 1978 and 75 years from the date of publication (28 initial term and 47 year renewal term) for anything published before.    The Register also noted:

 

“Copyrighted works move across national borders faster and more easily than virtually any other economic commodity and with the techniques now in common use this movement has in many cases become instantaneous and effortless.  The need to confirm the duration of U.S. copyright to that prevalent throughout the rest of the world is increasingly pressing in order to provide certainty and simplicity in international business dealings.  Even more important, a change in the basis of our copyright term would place the United States in the forefront of the international copyright community.

 

“It is startling to realize, in an era when copyrighted materials are being disseminated instantaneously throughout the globe, that the United States has copyright relations with less than half of the world’s nations.  The injustice of this situation to authors here and abroad is obvious, but equally serious to our national interest is the lack of cultural bridge between countries that copyright furnishes.”

[48]  

 

As part of the Congressional hearings leading up to the Copyright Act of 1976, former Register of Copyrights Abraham Kaminstein shared his observations to Congress:

 

“As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators – its authors, composers and artists – who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

[49]

 

This was followed by the acknowledgement that “there is an urgent need for copyright legislation that takes full account of the continuing technological revolution in communication.”

[50]

 

            During the course of the studies of potential revisions of the copyright laws, Congress passed nine special acts extending the renewal terms of existing copyrights that were about to expire, pending Congressional action on the general copyright law revision.

           

            Both the House and Senate Judiciary Committees reported on the need for extending the terms of copyright for a variety of reasons: 1) due to increased life expectancy, the then-term of 56 years was not long enough for an author and his dependents to receive the economic benefits from his work; 2) growth in communications media had greatly lengthened the commercial value of many works; 3) too short a term harms the author without giving any benefit to the public, as the public pay the same for a work in the public domain and publishers might be reluctant to invest in the dissemination of a work without the exclusive rights; 4) a large number of countries had adopted the term of life plus 50 years and with copyrighted works able to move across borders faster, it could have economic ramifications; and (5) not adopting the international term of protection might prevent the US from being able to join Berne.

[51]

 

Ultimately, Congress adopted the life plus 50 years term for new works published after January 1, 1978.  For the existing works up to that date, the existing system was left in place but the renewal term was extended to 47 years, for a total term of 75 years.

[52]

 

 

 

The Berne Implementation ACT OF 1988

 

            Article 5(2) of the Berne Convention states that “the enjoyment and the exercise of [copyright] shall not be subject to any formality.” Congress recognized that “the one real difference . . . that makes U.S. law incompatible with the Berne Convention consists in the notice and registration requirements” and further noted that “there is a strong consensus that Berne requires the elimination of mandatory notice of copyright.”

[53]

 

The benefits of the US joining the Berne Convention were to “establish multilateral relations with twenty-four countries which whom relations” did not exist; “since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage”; “by placing America copyright law on a footing similar to most other countries, especially in the industrial world, our domestic law as well as the international legal system are improved”;  “The net benefits will flow to American authors and to the American public.”

[54]

 

The Berne Implementation Act of 1988 amended the 1976 Act to clear away formalities such as the notice requirement and the filing and registration prerequisites to filing an infringement suit.  “The purpose of the legislation is to allow the United States to join the Berne Convention.”

[55] 

 

The Act was signed on October 31, 1988, and the US joined the Berne Convention, effective March 1, 1989. 

 

 

Copyright Renewal Act of 1992

 

This Act abolished the requirement that works published between 1964 and 1977 be renewed in the Copyright Office or fall into the public domain.  Under the new Act, works were automatically renewed and thus could not fall into the public domain.

[56]

 

Congress acted to protect authors from losing their works “irretrievably into the public domain” based on an innocent failure to comply with the formalities of filing of renewal applications.  The Copyright Office, publishers, authors, academics and others “criticized the registration renewal provision for being burdensome and unfair to thousands of copyright holders and their heirs.”  Congress believed that the public domain “should not be enlarged because of an author’s error in recordkeeping, or any other innocent failure to comply with overly technical formalities in the copyright law,”  particularly when such works are “the sole source of income for authors and their families.”  Further, Congress understood that “the domestic laws of most developed countries contain very few formalities conditioning copyright protection” and that such formalities are “antithetical to the major international treaty on copyright relations, the Berne Convention.”  

 

Congress considered the arguments of those opposed to the 1992 Act which were that mandatory renewals should remain in effect because ‘the works that would benefit from modifying it . . . are few in number and of little value” and “serves an important purpose: increasing the volume of works that call into the public domain, free of copyright protection.”  Congress rejected these arguments as “contrary to the real public purpose for copyright protection: our copyright law grants authors exclusive limited rights to exploit their creations for a sufficient time so they will be encouraged to continue creating works that entertain, educate and fire our imaginations.”

[57]

 

 

Uruguay Round Agreements Act (URAA) of 1994

 

            The URAA included 18 separate trade-related agreements covering such topics as agriculture, textiles, government procurement, investments, subsidies, trade in services and tariffs. President Clinton’s letter transmitting the URAA and related documents to Congress noted that “The Uruguay Round Agreements are the broadest, most comprehensive trade agreements in history.  They are vital to our national interest and to economic growth, job creation, and an improved standard of living for all Americans.”

[58] 

 

Statements in the Congressional record that sentiment as well.  “The Uruguay Round of multilateral trade negotiations is by far the most ambitious and comprehensive round of multilateral trade negotiations in the history of GATT . . . tackling new areas, such as services, intellectual property rights, and investment, reflecting the growing complexity of the world trading system. . . .  These agreements . . . will lead to increased levels of world and U.S. output, trade, real income, savings, investment, and consumption.”

[59]  [60] 

 

Congress clearly stated that it was acting to implement the United States’ treaty obligations under the Berne Convention “the Agreement requires WTO countries to comply with Article 18 of the Berne Convention. 

[61] [62]

 

While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”

[63]

 

Section 514 of the URAA restored copyright protection for the works of foreign authors whose works had fallen into the public domain due to non-compliance of the formalities of US copyright law.

[64]

 

 

Copyright Term Extension Act (CTEA) of 1998

 

As noted above, in 1993, the European Community issued a directive calling for the harmonization of the term of protection of copyrights at life of the author plus 70 years.

[65] 

 

The CTEA implemented the EC directive in the US and was signed into law by President Clinton on October 28, 1998.  It extended the terms of copyright protection by 20 years, so the pre-1978 term of 75 years from the date of publication became 95 years and the term after 1978 of life of the author plus 50 years became 70 years.

[66]

 

            The purpose of the CTEA was “to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. . . .  Such an extension will provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union while ensuring fair compensation for American creators . . .  by stimulating the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality, and accessibility of the public domain.”

[67] 

 

            The Register of Copyright noted in a hearing before the Senate hearing concerning the CTEA:

 

“Technological developments clearly have extended the commercial life of copyright works.  Examples include video cassettes .  .  . cable television .  .  . Internet .  .  .  The question is who should benefit from these increased commercial uses?”

 

            The Senate Judiciary Committee responded that “by extending the copyright term for an additional 20 years .  .  . the bill allows for American authors to benefit from these increased opportunities for commercial exploitation of their works.”

[68]

 

            Congress also found that absent the passage of the CTEA “the United States stands to lose a significant part of its international trading advantage.”

[69]  

 

The Senate Judiciary Committee explained:

 

“.  .  .  from the years 1977 through 1996, the U.S. copyright industries’ share of the gross national product grew more than twice as fast as the remainder of the economy.  During those same 20 years, job growth in core copyright industries was nearly three times the employment growth of the economy as a whole.  These statistics underscore why it is so important that we finally pass this legislation today.”

[70]

 

The CTEA also furthered the foreign policy goal of the harmonizing the United States copyright laws with those of important trading partners and in support of this goal, the Register of Copyrights testified that  “the Copyright Office believes harmonization of the world’s copyright laws is imperative if there is to be an orderly exploitation of copyrighted works.”

[71]

 

            Those supporting the CTEA included the head of the Copyright Office (Mary Beth Peters), the head of the Patent & Trademark Office (Bruce Lehman), US Trade Representative and the White House.  Support also came from the American Society of Composers, Authors and Publishers (ASCAP); Broadcast Music, Inc. (BMI); Motion Picture Association of America (MPAA); Association of American Publishers; National Music Publishers’ Association; Songwriters Guild of America; Recording Industry Association of America; Sherwood Anderson Literary Estate Trust; and Amsong.  All of those entities and interests believed that by extending the term would give further incentive to create more; that the heirs of songwriters should be able to exploit the works and reap the benefits; that it will benefit the public to harmonize our copyright terms with those of our trading partners and that revenues for music and movies will continue to flow back to the US because “copyright industries” in 1990 achieved foreign sales of $34 billion and employed 2.8 million people; and that America exports more copyrighted goods and services than it imports and that diminished protection would create a deficit.  More specifically, David Nimmer, who is looked to for expertise regarding copyrights stated:

 

“. . . Those arguing against copyright term extension are primarily businesses that depend on distributing films and videos that have lost copyright protection and entered the public domain.    . . .  It's important to realize that copyright protects not just authors and songwriters, but those who hold copyrights on motion pictures, television programs, records, CDs, computer software, phonographs, periodicals, sculptures, designs, and other original work. According to Economists Incorporated of Washington, D.C., America's "copyright industries" in 1990 achieved foreign sales of at least $ 34 billion, and employed 2.8 million individuals. . . . The world today seems to be enchanted by American culture. As a result, America exports many more copyrighted goods and services than it imports; any diminution of copyright protection would therefore increase our trade deficit, while unfairly harming those who own copyrights.”

[72]

 

            Those opposed to the CTEA were:  (a)  small publishers of music, books and videos of works in the public domain, as the CTEA extended the time before the works would fall into the public domain and thus would cut off their “resources” and profits;  (b)  those who perform music that is in the public domain (for the same reasons); and (c)  libraries and librarians because they cannot get access to works as easily if they are not in the public domain.  The main opposition, however, came from 46 intellectual law professors led by Dennis Karjala and Peter Jaszi, who filed a statement with Congress detailing their argument that “we believe that enactment of this legislation would impose substantial costs on the United States general public without supplying any public benefit.  It would provide a windfall to the heirs and assignees of authors long since deceased at the expense of the general public, and impair the ability of living authors to build on the cultural legacy of the past.”

[73]

 

Jaszi testified before the Senate that the public domain “is an informational commons which is free (at least insofar as copyright law is concerned) to all users and all uses. Among other things, it is the source to which creators of each generation turn for the materials which they refashion into new-and newly valuable-works of imagination.”  He also characterized the CTEA as “perpetual copyright on the installment plan.”

[74]

 

            The Senate Judiciary Committee was unpersuaded:

 

“The Committee is aware of the criticism of the proposed extension by those who suggest that it marks a step down the road of perpetual copyright protection.   The Committee is unswayed by this argument .  .  .  First, the greatest obstacle to a perpetual term .  .  . is the U.S. Constitution, which clearly precludes Congress from granting unlimited protection .  .  .  Second, the emerging international standard .  .  . are not toward perpetual protection, but to a fixed term of protection based on the death of the author.  Third, the principal .  .  . that it protects the author and at least one generation of heirs . . ..”

[75]

 

            Another opinion by a well-known copyright expert and Harvard professor, Arthur Miller, adds to this:


            “. . .  works of art become less available to the public when they enter the public domain-at least in a form that does credit to the original. This is because few businesses will invest the money necessary to reproduce and distribute products that have lost their copyright protection and can therefore be reproduced by anyone. The only products that do tend to be made available after a copyright expires are ''down and dirty'' reproductions of such poor quality that they degrade the original copyrighted work. And there is very little evidence that the consumer really benefits economically from works falling into the public domain. . . .”  .  .  .

“The need for strong copyright protection becomes more important every year as a weapon with which to fight the piracy of intellectual property. Overseas piracy of American copyrighted material has grown dramatically in recent years due to the availability of equipment that can make cheap copies of movies, videotapes, sound recordings, and computer programs. As more and more digital technology arrives on the scene, the problem will only become worse.”

        [120]

Constitutional Challenge of the CTEA

 

            The CTEA was later challenged as unconstitutional in a lawsuit filed by intellectual property lawyers supported by “rights” activist groups like the Electronic Freedom Foundation.  After seeing an article in the New York Times about Eric Eldred shutting down his online free books website “because the CTEA passed,”

[76]

 

Charles Nesson, Lawrence Lessig, and Jonathan Zittrain of Harvard University’s Berkman Center for Internet & Society filed a suit challenging the CTEA on behalf of Eldred on January 11, 1999.  Geoffrey Stewart & Pamela Jadwin of Hale & Dorr were also initially on the case.  Dennis Karjala and Jessica Litman also helped with the papers on the case.  The District Court ruled that the CTEA was constitutional; the Court of Appeals affirmed.  

 

On October 11, 2001, Eldred’s Petition in the United States Supreme Court was accepted for review.   Two amicus curiae briefs were allowed.  The first was filed by  Peter Jaszi for the National Writers Union, three Macarthur Fellows, Lawrence Golan, Public Knowledge, the Center for the Public Domain, and among others, arguing for a “healthy balance between copyright protection and access to information.”  The second amicus brief was submitted by a coalition of 53 intellectual property professors from different law schools across the US, including Dennis Karjala, Pamela Samuelson, and Jessica Litman.  The professors argued that they are “concerned about the recent, rapid expansion of copyright scope and duration, at the expense of the public domain.”

 

The Supreme Court upheld the CTEA’s constitutionality, emphasized the importance of the trade aspects supporting Congress’ passage of the CTEA. “[A] key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years.  . . .  Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. . . . By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.”

[77] 

 

In dissent, Justice Stephen Breyer  wrote that  “The economic effect of this 20-year extension .  .  . is to make the copyright term not limited, but virtually perpetual.   .  .  .  It threatens to interfere with efforts to preserve our nation’s historical and cultural heritage and efforts to use that heritage, say, to educate our nation’s children. … The serious public harm and the virtually nonexistent public benefit could not be more clear. .  .  .  the act’s effect is not to promote, but to inhibit, the progress of science.”

[78] [79] 

 

Justice Ruth Bader Ginsberg responded to that criticism in the majority opinion by noting that Justice Breyer “does not identify any statements in the statutory text that installs a perpetual copyright, for there is none.”

[80]

 

Professor Edward Samuels stated:

 

“In his book, The Future of Ideas, Lawrence Lessig explains the ‘repeated’ extensions of copyright as being power-grabbing ploy of the giant corporations.  At various websites on the Eldred case, the slogan ‘Free the Mouse’ is prominently displayed, and public domain advocates seem to enjoy calling the CTEA the ‘Mickey Mouse Act.’  In his book, Lessig pretty much dismisses the international considerations that were at the heart of the copyright term extension.”    .  .  .

 

“The various extensions of copyright over the years, balanced by careful limitations on the rights of copyright owners, are not the result of some nefarious scheme by corporations to cheat the public of their rights.  Rather, they are part of the remarkable system envisioned by the framers of the Constitution, and implemented by the Congress and the President, to ‘promote the Progress of Science and useful Arts’, by doing exactly what the Constitution says they are supposed to do, ‘by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries”

[81]

 



[120] Arthur R. Miller, “Extending Copyrights Preserves U.S. Culture”, Billboard Magazine, (January 14, 1995).



[1] Letters of Delegates to Congress: Volume 20 March 12, 1783 – September 30, 1783, Elias Boudinot to the States.

[2] Journals of the Continental Congress 1774-1789, Vol. 24, 211.

[3] Journals of the Continental Congress, 180.

[4] Journals of the Continental Congress, 326.

[5] Journals of the Continental Congress, 326.

[6] National Archives, Charters of Freedom.

[7] The Records of the Federal Convention of 1787, Vol. II, 321, 324, 325.

[8] The Records of the Federal Convention, 505, 506.

[9] U.S. Constitution, Article I, Section 8, clause 8.

[10] The Federalist Papers were a series of 85 essays written by Alexander Hamilton, James Madison and John Jay and published in two New York newspapers of the time: The New York Packet and The Independent Journal.

[11] Federalist No. 43.

[12] The Writings of Thomas Jeferson: Being its Autobiography, Coorespondence, Reports, Messages, Vol. II, (1859), 445.

[13] The Founder’s Constitution, Vol. I, Chapter 14, Document 47, (The University of Chicago Press).

[14] Memior, Correspondence and Miscellanies From the Papers of Thomas Jefferson, Vol. II, (1829), 442.

[15] Papers of Thomas Jefferson, 25.

[16] The Papers of Thomas Jefferson, Vol. 1, (Princeton University Press), Chapter 2, Document 23.

[17] James Madison, Aspects of Monopoly One Hundred Years Ago, (Harper’s Magazine, Vol. 128, No. 766, March 1914).

[18] Journal of the Second Session of the Senate, (January 4, 1790), 102, 103.

[19] Journal of the Second Session of the Senate, 104, 105.

[20] Journal of the House of Representatives, (January 4, 1790), 139.

[21] Copyright Act of 1790, Act of May 31, 1790, ch. 15, 1 Stat. 124.

[22]Encarta, The History of Printmaking.

[23] U.S. Copyright Office Circular 1a.

[24] Harry R. Warfeld, Letters of Noah Webster, (1953), (Webster's "Memorial to the Legislature of New York" dated Jan. 18, 1783), 254.

[25] Horace E. Scudder, American Men of Letters Noah Webster, (1882), 56, 57, 58, 60.

[26] Scudder, Noah Webster, 61, 62.

[27] Scudder, Noah Webster, 64.

[28] Register of Debates in Congress, Volume VII, Appendix cxix, cxx.

[29] Register of Debates in Congress, 424.

[30] U.S. Copyright Office Circular 1a.

[31] U.S. Copyright Office Circular 1a.

[32] Paul Goldstein, Copyright’s Highway, (1994).

[33] H.R. Rep. No. 2222 (1909), 1. The House Report, H.R. Rep. No. 2222 was adopted by the Senate as well.

[34] S. Rep. No. 6187, 8.

[35] H.R. Rep. No. 2222, 6, 7.

[36] S. Rep. No. 6187, 6.

[37] H.R. Rep. No. 2222, 14.

[38] S. Rep. No. 6187, 2, 3.

[39] S. Rep. No. 6187, 3, 4.

[40] Copyright Act of 1909, Act of March 4, 1909, ch. 320, 35 Stat. 1075.

[41] H.R.Rep. No. 756 (1912), S. Rep. No. 906 (1912).

[42] James J. Guinan, Jr , Duration of Copyright, (January 1957), 64, 65, 68, 69, 70.

[43] Guinan, Duration of Copyright, 74, 75.

[44] Register’s Report on the General Revision of the U.S. Copyright Law (1961), 7.

[45] Comment received from the Author’s League of America, February 23, 1962, Copyright law Revision, part 2, 316.

[46] Copyright law Revision, 71.

[47] Copyright law Revision, 69.

[48] S. Rep. No. 94-473 (1975), 118, 132.

[49] Testimony of Register of Copyrights Abraham Kaminstein, Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary on S. 1006, 89th Cong., 1st Sess.65 (1965).

[50] H.R. Rep. No. 90-83, (1967), 3.

[51] H.R. Rep. No. 94-1476 (1976), 134-35; S. Rep. No. 94-473, 117-118.

[52] H.R. Rep. 94-1476, 193.

[53] H.R. Rep. 100-609 (1988), 6-7, 41.

[54] H.R. Rep. 100-609, 6, 7.

[55] H.R. Rep. 100-609, 1.

[56] Pub. L. No. 102-307 (1992).

[57] S. Rep. No. 102-194 (1992), 4, 5, 6, 7.

[58] H.R. Doc. No. 103-316 (1994), 1.

[59] General Agreement on Tariffs and Trade, an international treaty.

[60] S. Rep. No. 103-412 (1994), 2-5.

[61] World Trade Organization—started as part of the URAA.

[62] Article 18 states that authors will enjoy the exclusive rights to their original works through out the term of protection.

[63] S. Rep. No. 103-412 (1994) at Pg. 225.

[64] Uruguay Round Agreements Act, section 514, Pub. L. No. 103-465; 17 U.S.C. § 104A (Dec. 8, 1994).

[65] Council Directive 93/98/EEC of October 29, 1993.

[66] Pub. L. No. 105-298 (1998).

[67] H.R. Rep. No. 104-315 (1996), 3.

[68] S. Rep. No. 104-315 (1996), 12.

[69] S. Rep. No.104-315, 10.

[70] 144 Cong. Rec. S11672 (daily ed. Oct. 7, 1998) (statement of Sen. Leahy).

[71] S. Hrg. 104-817 (Sept. 20, 1995).

[72] David Nimmer, “U.S. Should Extend Copyright Terms”, Billboard Magazine, (April 16, 1994).

[73] Written Testimony of Intellectual Property Professors, July 13, 1995.

[74] Statement of Professor Peter Jaszi Before the Senate Judiciary Committee, September 20, 1995.

[75] S. Rpt. No. 104-315, 11.

[76] Arthur R. Miller, “Extending Copyrights Preserves U.S. Culture”, Billboard Magazine, (January 14, 1995).

[77] Eldred v. Ashcroft, 537 U.S. (2003), 14-17.

[78] Daren Fonda, Copyright Crusader, (Boston Globe on August 29, 1999), Fonda quotes an article that Justice Breyer wrote for the school law review in which Justice Breyer considered scraping the copyright laws and stated “Authors in ancient times, as well as monks and scholars in the middle ages, wrote and were paid for their writings without copyright protection, taken as a whole .  .  . the evidence now available suggests that, although we should hesitate to abolish copyright protection, we should equally hesitate to extend or strengthen it.”

[79] Eldred v. Ashcroft, 537 U.S. (2003) Breyer Dissent, 26.

[80] Eldred v. Ashcroft, 537 U.S. (2003),18, footnote 16.

[81] Edward Samuels, The Public Domain Revisited, (2002), 424,435.



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