Major Acts of Congress | Copyright Act of 1790

Shubha Ghosh

It is well known that freedom of speech and freedom of the press are the cornerstones of American democracy. Less well known is the connection between these twin freedoms and copyright law. Mark Twain, the humorist and an advocate of copyright reform, said: "Only one thing is impossible for God: to find any sense in any copyright law on the planet." More than 210 years after the passage of the first copyright law in the United States, copyright remains an elusive and complex subject.

HISTORICAL BACKGROUND: ENGLISH LAW

In the past, publishing one's writing was not nearly as easy as it is today, with the advantages of the word processor and the Web page. Take, for example, England in the sixteenth and seventeenth centuries. The right to publish depended on receiving a license to publish from the monarch. Only authorized printers, or stationers, could publish and distribute written materials. Requiring a license to print limited who could write and what could be written. Since all rights stemmed from the monarch, it was ultimately the monarch who determined what writings would be published.

In 1644 the English poet John Milton, author of Paradise Lost, voiced the concerns of authors whose ability to write and distribute their work freely was hampered by the political and economic organization of publishing. In Areopagitica, a speech named after the Ancient Greek council that espoused the burning of offensive books, Milton championed the rights of the author against the arbitrary grants of the license to publish. Areopagitica was presented as a "speech for the liberty of unlicensed printing before the Parliament of England." Milton condemned the requirement that printers be licensed, comparing the strict control over what could be written and the creation of books to homicide.

Milton's important work sparked a debate over the rights of authors that resulted in the enactment of the Statute of Anne in 1710. The statute was described as "an act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies." The first sentence of the statute clearly described the problem to be addressed: "Printers, 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." To prevent this unauthorized printing, reprinting, and publishing, authors were given the exclusive right to publish, print, or reprint their books for a period of fourteen years, which could be extended upon renewal of the copyright for another fourteen years. The statute provided a modest set of fines for publishing, printing, or reprinting a book without the author's permission.

THE COLONIES, THE CONSTITUTION, AND COPYRIGHT

Against this background we come to the American colonies and the United States Constitution. Prior to Independence, several colonies had statutes that protected writers modeled on the Statute of Anne. After the Revolutionary War, all but Delaware had a statute protecting the copyright of authors. The drafters of the Constitution, without much formal debate, recognized the need for a single, uniform, national-level law to protect and regulate copyrights. This need was met by the inclusion of article I, section 8, clause 8 in the United States Constitution, which gave Congress the power "to promote the progress of Science and the Useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries." One of Congress's first acts, in 1790, was to pass legislation on copyrights and patents.

The Copyright Act of 1790 (1 Stat. 124) was titled "An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts and Books to the Authors and Proprietors of Such Copies" and was modeled on the Statute of Anne. Both acts were concerned with the "encouragement of learning." Both secured the rights of authors in copies of their works. Both acts provided protection for two consecutive fourteen-year terms. The term of the 1790 act was extended in 1831 to two twenty-eight-year terms.

One key difference, however, was the scope of protection. The Statute of Anne pertained to books. The Copyright Act of 1790 pertained not only to books but also to maps and charts. This broadening of scope reflected the needs of the strong and growing map-making industry in the newly formed and yet-to-be-charted United States. The extension of scope also illustrates the flexibility of United States copyright law to respond to the needs of changing trends in technology and publishing.

PRIVATE RIGHTS AND PUBLIC GOOD

A key similarity between the Statute of Anne and the Copyright Act of 1790 is the tension between private and public. Both acts were designed to encourage learning, a broad, public-minded goal. However, both seek to reach this goal by protecting the rights of individual authors. This combination of means based on private rights (for the good of the author) with public-minded ends (for the good of the public) has long been a source of debate. For some, copyright law is primarily about the rights of authors. For others, copyright law is about promoting learning and knowledge among the public. Copyright law is about both private rights and public values, even though in many important copyright disputes these two often come into tension.

THREE IMPORTANT CASES

Three copyright cases illustrate this tension. The first one is Wheaton v. Peters, (1834), also the first Supreme Court decision on the question of copyright. At issue was a claim of copyright infringement brought by Henry Wheaton against Richard Peters. Wheaton claimed that Peters had copied without permission his report of the judicial opinions of the United States Supreme Court. At the time, court reporters wrote down the opinions of the Supreme Court as they were read, annotated the opinions, and distributed them to the public. Wheaton claimed that Peters had copied cases that were decided during Wheaton's term as court reporter. The Supreme Court ruled that there was no copyright infringement because there could not be a copyright in judicial opinions, which were laws that needed to be accessible to the public. The Court rejected Wheaton's argument that he was the author of the report and as author needed the protection of copyright. Instead the Court held for the rights of the public as opposed to the rights of the author.

The second case, from 1841, also involved documents of potentially public interest. At issue in Folsom v. Marsh was copyright in the collected letters of George Washington. Upon Washington's death the task of collecting his letters fell to a Mr. Sparks, who as editor published a multivolume collection. Mr. Upham published a two-volume work entitled The Letters of George Washington, large portions of which were lifted from Mr. Sparks's volumes. Supreme Court Justice Joseph Story in the opinion he wrote laid out a framework for what has come to be called "fair use" of copyrighted materials. Under the rule of fair use, a user is allowed under certain circumstances to copy from the copyright owner's work without his or her permission. Unfortunately for Mr. Upham, Justice Story also ruled that this case was not one to which fair use was applicable. Mr. Upham had simply copied too much and had produced a work that competed too closely with Mr. Sparks's work.

Finally, in Stowe v. Thompson, (1853), Judge Robert Grier ruled against Harriet Beecher Stowe, who was suing a publisher for selling an unauthorized German translation of her book Uncle Tom's Cabin. The judge reasoned that the copyright statute as written by Congress in the 1850s gave the author the exclusive right to copy and sell her books, but not the exclusive right to translate them into a foreign language. Consequently, Stowe's copyright in Uncle Tom's Cabin had not been infringed by an unauthorized translation. After this important decision, Congress quickly amended the Copyright Act to give authors the exclusive right to translate their works as well as create other works derived from the original.

Each of these cases illustrates the tension between the rights of the author and the rights of the public that is at the heart of copyright law. Nowhere is this tension between private rights and public needs more evident than in the international treatment of copyright.

INTERNATIONAL TREATMENT OF COPYRIGHT

The treatment of non-United States authors under United States copyright law was a hot issue in the nineteenth century. To obtain copyright protection in a specific country, an author must comply with the copyright laws of that country. More important, the country must recognize foreign authors. In the nineteenth century the United States did not recognize copyrights in works of foreign authors published overseas. This treatment greatly benefited United States publishers, who were able to sell cheap pirated copies of British bestsellers. The reading public in the United States also liked getting cheap copies of the latest works of British authors. The English novelist Charles Dickens was a vigorous critic of the United States treatment of foreign authors. During his tour of the United States in the 1840s, he spoke out against United States copyright law and urged that the law grant protections to authors like him, whose books were sold without his permission in American bookstores. Later in the century, Mark Twain took up the cause in defense of foreign authors. Twain was unhappy that the books of non-United States authors sold more cheaply than those of United States authors. In Twain's view this price difference gave foreign authors an unfair advantage.

This problem was not unique to the United States. The major European nations met and entered into the Berne Convention in 1891. Under this treaty, a country was required to treat foreign and native authors equally with respect to copyright. The United States, however, did not sign this treaty until 1989, although Congress did amend the Copyright Act in 1909 and 1976 to level the playing field for foreign and domestic authors.

The international treatment of copyright provides a good example of the tension between the rights of the author, who seeks recognition of and profit from his work, and the rights of the public, who would like cheap and plentiful supply of the work for consumption. With roots deep in copyright's treatment of books under the Statute of Anne, the conflict continues into the twenty-first century not only with books, but also with access to movies, software, and music.

See also: COPYRIGHT ACT OF 1976; PATENT ACTS.