Understanding the copyright clause

Journal of the Copyright Society of the U.S.A.

Volumn 47, Issue 1, 1999, Pages 365-395

  Patterson, L Ray ^a  

^a NONE

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EID: 0042415553     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (65)

1. For example, The Digital Dilemma: Intellectual Property in the Information Age (National Academy Press), a report prepared by four prestigious committees (Committee on Intellectual Property Rights and the Emerging Information Infrastructure, Computer Science and Telecommunications Board, Commission on Physical Sciences, Mathematics, and Application, and National Research Council) over 200 pages long in its pre-publication form, contains no discussion of the copyright clause. The inference is that the copyright clause is a limited grant of power in that it deals only with copyright, but that the grant does not limit Congress' power to grant copyrights. The fact is that the clause is a limitation on, as well as a grant of, the copyright power.
2. 8 Anne, c. 19.
3. See Lyman Ray Patterson, The Statute of Anne: Copyright Misconstrued, 3 HARV. J. ON LEGIS. 223 (1966).
4. For example, the idea that copyright is to promote, not inhibit, learning is contrary to the copyright holders' desire to control copyrighted works in a secondary market. Rejection of the promotion-of-learning idea is necessary to create an artificial market for licensing the copying of portions of copyrighted materials, the basis for developing the pay-per-use paradigm.
5. An example is the Digital Millennium Copyright Act that amended the copyright statute to add Chapter 12, Copyright Management and Protection Systems, 17 U.S.C. § 1201 et seq. (Supp. IV 1998).
6. Courts frequently state that the purpose of copyright is to "promote the Progress of Science and useful Arts," although the former is the purpose of copyright, the latter the purpose of patents. Evidence to support this position is the title of the patent statute and the copyright statute enacted by the First Congress. The copyright statute was entitled "An act for the encouragement of learning. . . ." 1 Stat. 124 (May 31, 1790), the patent statute was entitled "An act to promote the progress of useful arts," 1 Stat. 109 (April 10, 1790).
7. The term public domain means public ownership. The failure to appreciate the role of copyright in protecting the public domain for information and learning may be in part because the phrase is primarily associated with real property. Thus, in Webster's International Dictionary, 2d ed.,
8. th ed., "Public lands" is defined as "The general public domain; unappropriated lands . . . ." The phrase, however, has on occasion been used in relation to copyright infringement meaning public ownership of information. Sawyer v. Crowell Publ'g Co., 46 F. Supp. 471 (S.D.N.Y. 1942) (information, the source of which is available to anyone, is in the public domain and not subject to copyright).
9. See Lyman Ray Patterson, Copyright and the "Exclusive Right" of Authors, 1 J. OF INTELL. PROP. LAW 1 (1993).
10. The point was recognized in the controversy about the nature of literary property in England in the eighteenth century. "It was a just observation of Lord Northington 'that it might be dangerous to vest an exclusive property in authors For, as that would give them the sole right to publish, it would also give them a right to suppress: and then those booksellers who are possessed of the works of the best of our authors, might totally suppress them.' The public have no tie upon authors or booksellers, to oblige them to keep a sufficient number of copies printed." Millar v. Taylor, 4 Burr. 2303, 2392, 98 Eng. Rep. 201, 249 (K.B. 1769) (Yates, J.).
11. The Statute of Anne, 8 Anne, c. 19, the first copyright statute, provided copyright only for printed books. 11 1 Stat. 124, sec. 1 (1790).
12. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293 (1907).
13. 17 U.S.C. § 10 (1909 Act).
14. Today, however, it is appropriate to interpret the phrase to mean the exclusive right to market a work because publication was the way of marketing a work in the eighteenth century. By the same token, the right to market should be limited to the primary, and not include the secondary market, for publication was only for the primary market.
15. Clayton v. Stone, 5 F. Cas. 999 (C.C.S.D.N.Y. 1829) (No. 2872) (Opinion by Thompson, Circuit Justice).
16. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987).
17. American Geophysical Union v. Texaco, Inc., 60 F. 3d 913 (2d Cir. 1995).
18. See Stover v. Lathrop, 33 F. 348 (C.C.D. Colo. 1888) in which Justice Brewer of the U.S. Supreme Court sitting on circuit said, "[T]he effect of a copyright is not to prevent any reasonable use of the book which is sold. I may use that book for reference, study, reading, lending, copying passages from it at my will. I may not duplicate that book, and thus put it upon the market, for in so doing I would infringe the copyright. But merely taking extracts from it, merely using it, in no manner infringes upon the copyright."
19. Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).
20. th Cir.
21. (en banc).
22. American Tobacco Co. v. Werckmeister, 207 U.S. 284, 297-98 (1907).
23. Universal City Studios, Inc. v. Sony Corp. of Am., 464 U.S. 417 (1984).
24. Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340 (1991).
25. The Charter of the Stationers' Company gave the officials of the Company the power to search for illegal printing and presses and "to seize, take, hold, burn, or turn to the proper use of the foresaid community, all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation, made or to be made. . . ." The Charter is printed at I Arber, A Transcript of the Stationers' Registers XXVII-XXXII (Privately Printed, London, 1875). The quoted language is taken from p. XXXI.
26. COPYRIGHT IN CONGRESS 1789-1904, at 115 (Thorvald Solberg, ed. 1905).
27. 8 Anne, c. 19. The date of the statute is sometimes stated to be 1710. In fact, the statute was enacted in February, 1709, but it did not go into effect until the following April, 1710. The disparity is explained by the fact that at that time, the New Year in England began in March, not on January 1.
28. Millar v. Taylor, 4 Burr. 2303, 2312, 98 Eng. Rep. 201, 206 (1769) (Willes, J.). Cf. Lord Mansfield's statement: "I use the word 'copy,' in the technical sense in which that name or term has been used for ages to signify an incorporeal right to the sole printing and publishing of some[thing] intellectual, communicated by letters." Id. at 2396, 251.
29. NOAH WEBSTER, COLLECTION OF PAPERS ON POLITICAL, LITERARY AND MORAL SUBJECTS 173 (1843)(emphasis added).
30. The point is emphasized by J. Willes' comment that "bona fide imitations, translations, and abridgments are different; and, in respect of the property [copyright], may be considered as new works . . . ." Millar 4 Burr. at 2310, 98 Eng. Rep. at 205. Thus, one who abridged a work did not infringe the copyright. Today, the phrase probably should be read as meaning the exclusive right to market a work, but only for the primary, not the secondary, market.
31. For a detailed discussion of these various documents and their relevance to the development of copyright law, see LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE (1968).
32. For example, section IX of the Statute of Anne, 8 Anne, c. 19, read as follows: "Provided nevertheless, That nothing in this act contained shall extend, or be construed to extend, either to prejudice or confirm any right that the said universities, or any of them or any person or persons have, or claim to have, to the printing or reprinting any book or copy already printed, or hereafter to be printed." This language appears to negate other provisions of the statute, for example, that "the author of any book or books . . . shall have the sole liberty of printing and reprinting such book and books for the term of fourteen years." Section I. The answer to this problem depends upon the meaning of "any right" in section IX, and reference to the Licensing Act makes it clear that "any right" refers to the printing patents. Section XXII of the Licensing Act, 13 & 14 Car. II, c. 33, read: "Provided also, That neither this act, nor any thing therein contained, shall extend to prejudice the just rights and priviledges granted by his Majesty, or any of his royal predecessors, to any person or persons, under his Majesties great seal, or otherwise, but that such person or persons may exercise and use such rights and priviledges as aforesaid, according their respective grants; any thing in this act to the contrary notwithstanding." When section IX of the copyright statue is read in light of section XXII, it seems clear that section IX was intended to say that the statute did not deal with the privileges granted by the sovereign, that is, was not to prejudice or to confirm the right.
33. "By the charter of Queen Mary, the Company of Stationers were made a kind of literary constables, to seize all books that were printed contrary to the statute, &c. And, as Mr. Yorke observed . . . when once the company were made absolute, they attempted to execute such outrages that no body could submit to." Millar, 4 Burr. at 2374-75; 98 Eng. Rep. at 240 (Yates, J.).
34. "The by-laws of the Stationers Company protect none but their own members. What security then were all these instruments for the copy-right of any author?" Millar, 4 Burr. at 2377, 98 Eng. Rep. at 241.
35. Millar, 4 Burr, at 2317, 98 Eng. Rep. at 209.
36. Id.
37. See Lyman Ray Patterson, The Statute of Anne: Copyright Misconstrued, supra note 3.
38. One of the subtle ironies in the booksellers' position was their use of natural law The stationers' copyright had been a natural law copyright based on the manufacture of books. Their argument to the courts would be that the author was entitled to a natural law copyright based on the writing of a book. The switch was from sweat-of-the-brow equity to intellectual equity as a basis for copyright, but the change was inconsequential for the monopolists In either instance, the goal was to make the author's copyright perpetual just as the publisher's copyright had been. That the title would be vested in the author initially was a matter of small concern since the bookseller would simply demand the assignment of the copyright as a condition for publishing the work.
39. 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769).
40. 4 Burr. 2408, 2 Bro. P.C. 129, 98 Eng. Rep. 257; 1 Eng. Rep. 837 (H.L. 1774); 17 Cobbett's Parl. Hist. 953 (H.L. 1813).
41. 4 Burr, at 2398; 98 Eng. Rep. at 252. Lord Mansfield did not explain how these rights would be implemented if the author assigned the copyright to the publisher, as was the custom.
42. 33 U.S. (8 Pet.) 591 (1834).
43. Id. at 602.
44. XVII WILLIAM COBBETT, THE PARLIAMENTARY HISTORY OF ENGLAND, A.D. 1771-1774 1077, at 1085 (1813). The response was by William Johnston, a former bookseller whose testimony suggests that the conduct of contemporary publishers in ignoring the copyright statute, e.g., in copyright notices forbidding any copying without permission, has historical precedent. Id. at 1079-86.
45. See argument of Elijah Paine in Wheaton v. Peters: "The case of Donaldson v. Beckett was decided in the House of Lords, in 1774. This case, and all the law on this subject, discussed and decided by it, must have been known to the lawyers of the convention. The opinion of the judges in the case of Millar v. Taylor, must also have been familiar to them." 33 U.S. (8 Pet.) at 601.
46. 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514) (Justice Grier of the U.S. Supreme Court on circuit.)
47. 33 U.S. (8 Pet.) 591 (1834).
48. 101 U.S. 99 (1880).
49. 210 U.S. 339 (1908).
50. 464 U.S. 417 (1984).
51. 499 U.S. 340 (1991).
52. EATON S. DRONE , A TREATISE ON THE LAW OF PROPERTY IN INTELLECTUAL PRODUCTIONS 386-87 (1879).
53. The right of the copyright holder to copy a work came into the statute in the 1802 amendment providing copyright protection for prints and engravings, and was limited to works of art until the 1909 Act.
54. The House Report on the 1909 Act states: "Subsection (a) of section 1 adopts without change the phraseology of section 4952 of the Revised Statutes, and this, with the insertion of the word 'copy,' practically adopts the phraseology of the first copyright act Congress every passed - that of 1790. Many amendments of this were suggested but the committee felt that it was safer to retain without change the old phraseology which has been so often construed by the courts." H. R. REP. No. 60-2222, at 4 (1909). This is not the language of someone who recognizes the significance of the change.
55. Judge Learned Hand may be the jurist primarily responsible for this. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 55 (2d Cir. 1936) ("We have often decided that a play may be pirated without using the dialogue.").
56. 33 U.S. (8 Pet.) at 602.
57. in the Proceedings in the House of Lords on the Question of Literary Property, "Lord Effingham rose last, and begged to urge the liberty of the press, as the strongest argument against this property; adding, that a despotic minister, hearing of a pamphlet which might strike at his measures, may buy the copy, and by printing 20 copies, secure it his own, and by that means the public would be deprived of the most interesting information. XVII COBBETT, supra note 43, at 1003.
58. 4 Burr. 2303, 2312; 98 Eng. Rep. 201, 206.
59. When the old copyrights finally expired after their twenty-one year extension, the booksellers went back to Parliament "in the years 1735, 1738, 1739, for a longer term of years . . . The truth is, the idea of a common-law right in perpetuity was not taken up till after that failure in producing a new statute for an enlargement of the term. If (say the parties concerned) the legislature will not do it for us, we will do it without their assistance; and then we begin to hear of this new doctrine, the common law right, which, upon the whole, I am of opinion, cannot be supported upon any rules or principles of the common law of this kingdom." Argument of Lord Chief Justice De Grey in the House of Lords. XVII COBBETT, supra note 43, at 992.
60. Thus relying on Millar v. Taylor, plaintiffs in Wheaton v. Peters argued for the author's perpetual common law copyright. That the argument was taken seriously is indicated by the two dissenting opinions. And, of course, the natural law theory of copyright has emerged in this century with a vengeance, for example in the Berne Convention Implementation Act of 1988, and more recently, the Digital Millennium Copyright Act, and the Copyright Term Extension Act.
61. The copyright clause, U.S. Const., art. I, § 8, cl. 8, proves the point.
62. The Copyright Term Extension Act, which provides an additional twenty years of protection for existing copyrights, is an example. See column by Richard A. Epstein, Congress' Copyright Giveaway, WALL ST. J., Dec. 21, 1998, at A19, criticizing the Act: "Congress's political conniving will cost the public billions. It may be unconstitutional to boot." Id.
63. "The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given." H.R. REP. No. 60-2222, at 11 (1909).
64. See, e.g., American Geophysical Union v. Texaco, Inc., 60 F. 3d 913 (2d Cir. 1995).
65. See note 58 supra, argument of Lord Chief Justice De Grey in the House of Lords.