The Origin of Two American Copyright Theories

* The Origin of Two American Copyright Theories *
--A Case of the Reception of English Law --

Hideaki Shirata

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1 The Original Concept of Copyright in England

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The concept of copyright emerged in England in the sixteenth century from the bylaws of the guild then monopolising the country's publishing industry. The guild was granted a charter of incorporation by Queen Mary in 1556 and reorganised itself as the Company of Stationers of London. With official recognition of the Company's monopoly, its bylaws and concept of copyright also came gradually to be acknowledged as those of an official institute. The quasi-right known as Stationers' Copyright was based on royal prerogative or letter patent covering the entire publishing industry as an estate. This monopoly was assigned to its members as a virtual freehold interest. Although the Stationers' Copyright was based on a prerogative which laid down three basic characteristics of Anglo-American copyright - namely that registration is indispensable for its protection, copyright was available not only to the author but also to purchasers, and it remains valid for a term that is a multiple of seven years - it gave no consideration whatsoever to the author's right [1].

England enacted the world's first copyright law in 1710 [2]. This statute has long been considered a turning point in the history of copyright as it clearly recognised the author's right. Contrary to this long-standing belief, however, this paper will argue, by a thorough investigation of the purpose and legislative record of the statute, that it was in fact enacted for the abolition of stationer's monopoly [3].

With respect to purpose, the statute granted an extension of the existing monopoly for 21 years and an exclusive right for new works for fourteen years with an option to renew for the same period. Moreover, the statute used the author's right only to justify the abolition of the monopoly.

This argument can be supported by the following three points.

First, a part deleted from the original draft of the 1710 statute clearly emphasised that authors were to be given priority over others with respect to copyright. Parliamentary records reveal that this particular part was removed under pressure from monopolistic booksellers.

Whereas the liberty which Printers, Booksellers, and other Persons have of late frequently taken in [the Liberty of] Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted and Published Books, and other Writings, without the Consent of Authors thereof, in whom ye undoubted Property of such Books and Writing as the product of their learning and labour remains or of such persons to whom such Authors for good Considera(c^)ons have lawfully transferred their Right and title therein is not only a real discouragement to learning in generll [sic] which in all Civilized Nations ought to receive ye greatest Countenance and Encouragemt [sic] but it is also a notorious lnvasion of ye property of ye rightful [or] Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: ...

That where any Author shall hereafter Compose or write any book or books and shall reserve to himself ye Copy or Copies of Such book or Books share or Shares thereof Or any Bookseller printer or other person who hath already purchased or acquired or shall hereafter purchase or acquire ye Copy or Copies of any Book or Books Share or Shares thereof in Order to print or reprint ye same That in any or either of these Cases from and after the Thenth Day of April, One thousand seven handred and ten, the Author of any Book or Books already Printed... [4]

Second, there is the similarity between the Statute of Monopoly of 1623 [5] and the 1710 statute. The Statute of Monopoly was, needless to say, intended to abolish the monopolies so rampant during the Elizabethan age. It allowed 21-year monopolies for existing privileges granted without specific terms and 14-year monopolies for forthcoming inventions. The structure of the Statute of Monopoly is similar to the first section of the 1710 statute.

An act concerning monopolies and dispensations with penal laws and the forfeitures thereof, 21 Jac.1, c.3.

V. ... And if the same were made for more than one and twenty years, That then the same for the term of one and twenty years only, to be accounted from the date of the first letters patents and grants thereof made, shall be of such force as they were or should have been, if the same had been made but for term of one and twenty years only, and as if this act had never been had or made, and none other, VI. Provided also, and be it declared and enacted, That any declaration before mentioned shall not extend to any letters patents and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactrues within this realm, to the true and first inventor and inventors of such manufactures, ...

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, 8 Anne, c.19.

... [T]he Author of any Book or Books already Printed, who hath not Transferred to any other the Copy or Copies of such Book or Books, Share or Shares thereof, or the Bookseller or Booksellers, Printer or Printers, or other Person or Persons, who hath or have Purchased or Acquired the Copy or Copies of any Book or Books, in order to Print or Reprint the same, shall have the sole Right and Liberty of Printing such Book and Books for the Term of One and twenty Years,... and no longer; and that the Author of any Book or Books already Composed and not Printed and Published, or that shall hereafter be Composed, and his Assignee or Assigns, shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of Fourteen Years, to Commence from the Day of the First Publishing the same, and no longer;...

Third, there are the claims made by intellectuals around 1710. The Licensing Act of 1662 [6], which gave legal authority to the monopoly in the book trade, was repealed in 1695. John Locke contributed much towards its repeal, writing to peers in the House of Lords and strongly condemning the restrictions on science caused by the provisions of the Act and the monopolies of Stationers Company. (See, Appendix A.)

Although the 1710 statute aimed to abolish monopolies, monopolistic booksellers attempted to forge a case which would nullify its scheme and provide eternal protection for their businesses. We can see that in the actions brought after 1731 when statutory copyright protection began to expire. They even colluded to accomplish their goal [7]. A series of these actions known as the ``Battle of the Booksellers'' attracted considerable public attention in London [8].

Such activities aimed at establishing copyright as an eternal right were most apparent in Millar v. Taylor in 1769 [9]. As a result of the decision of the King's Bench in this case, copyright was understood, for five years until 1774, to be a kind of common law right eternal in nature. In this case, Sir William Blackstone and Lord Mansfield made a great contribution to promoting the plaintiffs' cause. Blackstone had previously published Commentaries on the Laws of England [10] in 1767 in which he interpreted copyright as a legal concept for the first time. Citing Lockean natural law theory [11], he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brain work. Blackstone revised the description to emphasise the distinction between the common law right and statutory copyright after the Millar case was overruled in Donaldson v. Beckett in 1774 [12]. The distinction was, however, so technical that most readers found it difficult to comprehend. (See, Appendix B.)

The plot of the booksellers was ultimately defeated by the decision of the House of Lords in the Donaldson case, which established the basic structure of the concept of Anglo-American copyright in the nineteenth century. That is, when an author fixed his creation on a tangible medium, he obtained a common law right that is eternal in nature. However, he would lose the common law right after the publication of his creation because of loseing physical occupancy or control on the creation. To avoid this inconvenience, a statute established privilage or monopoly that exclude others from utilizing author's work for limited term. Throughout the Battle of the Booksellers, on the other hand, lawyers had maintained that the principle of copyright should be based on Lockean natural law theory and this assertion came gradually to receive some degree of public recognition.

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2 The Reception of Copyright Law in America

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The colonial government of Massachusetts enacted in 1672 a law that can be regarded as the first copyright law in British territory on the American continent. There is no evidence that the American colonies had any other copyright statutes after that until the 1780s. The reason for its absence can be explained by following three points. First, despite the fact that works of American authors were published in America, the number of works was limited and a large proportion of the American market was dominated by British authors. Second, authors in colonies were also editors and publishers. There was a sentiment or trade rule called ``courtesy copyright'' or ``mutual obligation'' among publishers, which effectively suppressed piracy. Third, there was little or no conflict of market share among publishers on account of the extensive and growing American market. The market was also strictly segmented. Each publisher often supported a specific political group confronting the others [13].

America gained cultural independence from England in tandem with the emergence of its political independence. The American publishing industry turned its attention more and more to American authors, which brought the issue of the protection of authors to the fore. Although the trade courtesy copyright protected publishers, it afforded no protection to authors. Publishers paid little or nothing for the works of authors. Some authors began to lobby their government for legal protection of their copyrights. In the context of their demands, they considered copyright to be identical to the concept of author's right, and should thus have pleaded for the protection of their ``authors' right'' rather than ``copyright'', which was a right for publishers traditionally and legally.

The petitioners and other key persons who exerted great influence over the enactment of copyright laws in America had no way of knowing about the change in the law resulting from the Donaldson case of 1774. After the Boston Tea Party in 1773, the United States was in a state of war with England and ceased all trade with her until 1783. Some studies prove that Americans were not informed about the change of copyright law in England during this period [14]. Even if they had been informed about the change, the leaders of the Independence movement could hardly be expected to show much interest in the comparatively trivial matter of the reform of copyright law when they were preoccupied with the Revolution. Nevertheless, pirate editions of Blackstone's Commentaries of 1771 were freely available and sold well. This pirated edition was the one subsequently revised to accord with the Court's reasoning in the Donaldson case.

In these circumstances, American authors and legislators not familiar with the traditional concept of copyright could not consider copyright as anything but the common law right based on Lockean natural law theory. Hence, we can conclude that the idea or theory of copyright in the America of the 1780s was dominated by the natural law concept.

Legislators nonetheless formulated the copyright statute as a trade-regulating law, as had been the case in England. This course of action resulted from a recommendation of the Continental Congress on 2 May 1783 [15] in response to a petition from an American poet, Joel Barlow. After accepting the recommendation, many States began to enact their own copyright laws successively. Table 1 shows the statutes in chronological order of their enactment and a summary of their contents [16]. It should be noted that all legislation up to that of Maryland preceded the recommendation of Congress. In particular, the statute of Massachusetts, which was the heart of the publishing industry in the United States, clearly protected copyright as a kind of personal property. The nearby states of New Hampshire and Rhode Island also introduced the Massachusetts model. The map below shows those states in grey. It is said that those states tended to accept English law insofar as it conformed to their community policy. Where it did not, they would reject or modify it. Here, we can also see the same tendency regarding the reception of copyright law.

Journal of the Continental Congress

1783/5/2 Congress, ``Resolved, That it be recommended to the several states, to secure to the authors or publishers of any new books not hitherto printed, being citizens of the United States, and to their ... executors, and administrators and assigns, the copyright 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 copyright of such books for another term of time not less than fourteen years, such copy or exculsive right of printing, publising and vending the save to be secured to the original authors, or publishers, or ... their executors, administrators and assigns, by such laws and under restrictions as to the several states may seem proper [17]. ''

Titles of Statutes

13 States Map

Some writers contend that states' copyright statutes in the 1780s were based on natural law theory. There were in fact only three statutes based on this theory; the others adopted the wording and concept of the English statute. These latter statutes provided the character of copyright as a monopoly or an exclusive right that would be allowed specially for the promotion of science and literature.

The statutes were not, however, mere copies of the English statute of 1710. Their wording suggests that legislators drafted their provisions from independent standpoints, with the exception of South Carolina. The legislators of Connecticut appear to have drafted their law in their own terms after referring to the 1710 statute, and the contents of this law ultimately affected the recommendation of Congress in 1783. Other states then enacted their own laws referring to the recommendation and the Connecticut law. The map above shows those states in black.

Paralleling the complex history of copyright in England, the structure of the concept was very complicated. The United States, with its undeveloped publishing industry, did not accept such complexity, but rather based the concept of copyright on simple and clear natural law theory. Nevertheless, they legislated along the line of the English statute. Thus, copyright in the United States had a dual structure. They could either explain the concept of copyright as a property right based on natural law or the statute as a law regulating trade and providing a limited term of monopoly.

This argument can be supported by the following three pieces of evidence. The first is the records of Constitutional Convention that provided a so-called ``intellectual property clause''. The second is the legislative records of the first copyright statute of the United States. The third is the descriptions of eminent scholars in the nineteenth century, James Kent and Joseph Story.

It seems there were two drafts which mentioned the intellectual property clause. One is called the Pinckney plan, and the other is the Madison plan [18]. Since there have been controversies about the contribution of Pinckney [19], I would like here to focus our attention on Madison, who undoubtedly contributed to the clause and is called ``the father of the intellectual property clause''. Madison's argument in the Federalist is often cited to demonstrate his notion of copyright.

Madison Plan

To secure to literary authors their copyrights for a limited time. To establish a university. To encourage, by premiums and provisions, the advancement of useful knowledge and discoveries...

Pinckney Plan

To grant charters of incorporation, To grant patents for useful inventions, To secure to Authors exclusive rights for a ... certain time, To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades and manufactures...

The Federalist, No. 43

...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 [20].

In the Federalist, Madison seems to explain the nature of copyright as a kind of natural right. On the other hand, the description in his letter to Thomas Jefferson at the time of the publication of the Federalist and a part of his essay published posthumously reveals a different interpretation.

A Letter from Madison to Jefferson

...With regard to Monopolies, they are justly classed 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 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 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 not in the few the danger cannot be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrified to the many [21].

An Essay of Madison

Monopolies tho' in certain cases useful ourght to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases --- the authors of Books, and of useful inventions, in both [of] 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 temprary because under that limitation a sufficient recompense and encouragement may be given. ... Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight [22].

These documents prove that Madison accepted traditional English ideas of copyright. That is, he understood copyright as a monopoly granted for only a limited term. Why did he explain copyright as a natural right in the Federalist when he clearly understood that copyright and patent were inevitable monopolies to promote science and literature? He seemed to believe it would be easier to persuade the people, amid the current mood of antipathy toward monopolies and England, to accept copyright and patent as natural rights than as trade regulation laws which were monopolistic in nature. It is well known that the Americans adopted the common law after screening aristocratic or prerogative elements out. The Founding Fathers understood the nature of copyright as a monopoly that was granted for administrative purposes to promote the sciences and they adopted copyright law after modifying its doctrine to suit American taste. That was America's first copyright statute, the Copyright Act of 1790 [23].

The 1790 statute is characterised by its strict and onerous requirements for receiving legal benefits and protection. The question as to whether the plaintiff asserting his copyright fulfilled all the requirements of the statute was frequently the first matter of controversy in early copyright cases [24]. In practice, the requirements were extremely difficult to satisfy. It is therefore appropriate to view the 1790 statute as having been enacted only for the benefit of title holders who claimed and strove for their rights earnestly.

How did scholars view all of this? Here I would like to focus our attention on the doctrines of Kent and Story, who exerted strong influence over early American lawyers.

Commentaries on American Law

... It was for some time the prevailing and better opinion in England, that authors had an exclusive copyright at common law, as permanent as the property of an estate; and that the statute of 8 Anne, c. 19, protecting by penalties that right for fourteen years, was only an additional sanction, and made in affirmance of the common law. ...

This point came at last to be questioned; and it become the subject of a very serious litigation in the court of K. B. It was debated at the bar and upon the bench, with great exertion of the talent, and very extensive erudition and skill in jurisprudence. I was decided that every author had a common-law right in perpetuity, independent of statute, to the exlusive printing and publishing his original compositions. The court were not unanimous; and a subsequent decision of the House of Lords, in Donaldson v. Becket, [sic] in February, 1774, settled this very litigated question against the opinion of the K. B., by establishing that the common-law right of action (if any existed) could not be exercised beyond the time limited by the statute of Anne. ...

...The justice and policy of securing to ingenious and learned men the profit of their descoveries and intelelctual labor were very ably stated by [25].

Commentaries on the Constitution of the United States Power to promoted science and useful arts

S. 558. This power (Const. art. 1, S. 8, par. 8) did not exist under the confederation; and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common law right; ...In short, the only boon that could be offered to inventors to disclose the secrets of their discoveries, would be the exclusive right and profit of them, as a monopoly, for limited period [26].

Both of them explained that copyright was a right based on natural law or common law. Kent, in particular, was not satisfied with narrow statutory protection. He managed to extend the scope of copyright and to reinforce its protection by emphasising common law copyright theory. To achieve this purpose, he strongly supported the reasoning of the Millar case and disregarded that of Donaldson. This created a tradition of American lawyers preferring the Millar case to that of Donaldson. On the other hand, the explanation of Story was too brief to describe the differences between copyright and patent. The readers of his explanation may understand that both concepts stand on the same base, namely natural law theory. He might confuse those concepts because he described them in the context of explaining the intellectual property clause in the Constitution.

Summing up, the idea of American copyright was divided into two streams. One was based on the wording of the statute and its practical function, and the other was on academic doctrines. The Government adopted the traditional English idea of copyright and took a conservative attitude towards the expansion of its protection. Lawyers and scholars, on the other hand, advocated, as Blackstone had done, that there was a common law copyright that derived from Lockean natural law theory, and that the statute only gave it a written form. Under the influence of the Civil law copyright concept, they managed to establish common law theory and to expand that protection.

This leads us to ask how the courts understood the nature of copyright in the nineteenth century. The first case brought in the Federal Supreme Court was the Wheaton v. Peters in 1836 [27]. In this case, the Court adopted a strict literal construction of the statute and denied the existence of common law copyright in the Federal jurisdiction. It is said that the Court had, throughout the nineteenth century, a conservative tendency that generally favoured literal construction. We may also see the same tendency in that case. Nevertheless, the reasoning in the first part of the Court's majority opinion distinguished so-called common law copyright and the statutory exclusive monopoly. The distinction shows that the Wheaton case was along the lines of traditional English theory established in Donaldson. Here, the Wheaton case established the foundation of American copyright case law, and remained the leading case until O. W. Holmes Jr. modified it in the 1900s [28].

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3 Two American Copyright Theories

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Hence, we can stand on two different bases when explaining basic theory or the nature of copyright in America.

One is an attitude coming from an historical understanding of copyright or a strict literal construction of provisions of statutes. Its adherents are called ``copyright pessimists''. They advocate that the protection of copyright should be minimum as long as it gives incentives for creation, and excessive protection of it generates chilling effects on younger authors and affects the promotion of learning and freedom of speech. Such theories are called ``regulative theory'' and are cautious towards the expansion of copyright protection[29].

The other attitude comes from academic doctrine under the influence of Civil law copyright theory. Its adherents are called ``copyright optimists''. They advocate that the protection of copyright is an actualisation of author's right directly derived from the natural right. Therefore, the expansion of copyright is basically in accordance with author's benefits and promotes creation. Therefore, copyright should not be subordinate to other legal concepts, and should at least be accorded equal status. Such theories are called ``property theory'' and are aggressive towards the expansion of copyright protection [30].

In the light of the development of information industries and increase in digital works, the government of the United States seems to have adopted the property theory even in statute after revision of the Act in 1976. She also aggressively promotes the strengthening of legal protection for so-called intellectual properties worldwide. Against this policy, however, some scholars warn tenaciously of excessive expantion of copyright protection, while advocating intellectual property policies which considers users' right as well.

As for Japan, which adopted the Civil law copyright concept from Germany in the 1890s and since then have not considered the full meaning of the original concept of copyright, almost all the legal profession seem to have accepted property theory. This tendency is promoted by the information industries both at home and abroad. In contrast with the situation in the United States, which balances those two copyright theories, the adherents of regulative theory in Japan are so few that the monopolistic side effects of the property theory has been apparent. While the Civil law copyright concept seems dominant in Japan, this historical study indicates the importance of a regulative theory that considers public utility.

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Appendix A, A Letter from Locke to Clarke

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A Letter from Locke to Clarke, Oates, 2nd January, 1692[-3] [31].

Dear Sir, I find by your votes of the 23rd December [1962] that you have resolved to continue the Act for printing made in the 14 Car. 2, I wish you would have some care of book-buyers as well as of booksellers and the company of stationers, who having got a patent for all or most of the ancient Latin authors (by what right or pretence I know not) claim the text to be theirs, and so will not suffer fairer or more correct editions than any they print here, or with new comments to be imported without compounding with them, whereby these most useful books are excessively dear to scholars, and a monopoly is put into the hands of ignorant and lazy stationers. Mr. Smith, a bookseller in St. Paul's Churchyard, can give you a very fresh instance of this, concerning the importation of a new fair correct edition of Tully. By this monopoly also of those ancient authors, nobody here, that would publish any of them anew with comments, or any other advantage, can do it without the leave of the learned, judicious stationers. For if they will not print it themselves nor let any other, by your labour about it never so useful, and you have permission to print it from the Archbishop and all the other licencers, it is to no purpose. If the company of stationers so please it must not be printed. An instance you have of this in AEsop's Fables. Pray talk with A. Churchill concerning this who I believe will be able to show you other great inconveniences of that act, and if they can possibly, I wish they could be remedied. And particularly, I think, that clause, where printing and importation of any books, to which any have a right by patent is prohibited, should be at least thus far restrained that it should be lawful for anyone to print or import any Latin book whose author lived above a thousand years since. Pray talk with your members about it; and I should imagine some of the Bishop, too, of your acquaintance should be for it. For it is a great oppression upon scholars, and what right can anyone pretend to have to the writings of one who lived a thousand years ago. He that prints them best deserves best, and should have the sale of them, which our company of stationers can by no means pretend to. For if you examine it, I believe it will be found that those of the classic authors, which are of their publishing, are the worst printed of any.

Your act of coinage too I think may deserve considering. For as it is now ordered, and others as well as milled money goes, it is but labour in vain and so much tax thrown away to no purpose. But whether it be fit to touch on it now, when there have been attempts and some men are ready to alter and debase our coin, the consequences whereof will be very ruinous, I must leave to you there to weigh. And therefore perhaps it may on that consideration be better to let the Coinage Act go as it is with that inconvenience that is in it than by endeavouring to mend it give occasion to the letting in a deluge.

I long mightily to see you, and I hope you will either bring down with you the paper-draught of account stated, or send it by the next post, that we may talk of it here and you carry it back with you. For I make sure you will come down not only to the election but hither. I suppose Sir Francis has told you that his coach will carry Mr. Andrews and you from hence to Chelmsford and back again. Pray therefore come to Harlow in the Bishop Stortford coach Saturday next, if possible; unless Sir Francis things coming hither Tuesday night will be time enough, and going Wednesday morning to Chelmsford. But if your business would permit, I long to have more time with you than one night.

My service to Madam. I sent her a letter enclosed in yours the last post, and I received none from you this. I say it to tell you not to complain, and am,

yours, J. Locke.

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Appendix B, Commentaries on the Laws of England

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Commentaries on the Laws of England, 4th Ed., vol. 2, Ch. 26.

Of Title to Things Personal by Occupancy [32]

8. There is still another species of property, which being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supported by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own origianl literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the dispositoin he has made of it, is an invasion of his right of property. Now the identity of a litreary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eyes of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given. This consent may perhaps be tacitly given, when an author permits his works to be published, without any reserve of right, and without stamping on it any marks of ownership: it is then a present to the public, like the building of a church, or the laying out a new highway: but, in case of a bargain for a single impression, or a sale or gift of the copyright, the reversion is plainly continued in the original proprietor, or the whole property transferred to another.

... Neither with us in England hath there been any direct determination upon the right of authors at the common law. But much may be gathered from the frequent injunctions of the court of chancery, prohibiting the invasion of this property: especially where either the injunctions have been perpetual, or have related to unpublished manuscripts, or to such antient books, as were not within the provisions of the statute of queen Anne. Much may also be collected from the several legislatve recognitions of copyrights; and from those adjudged cases at common law, wherein the crown hath been considered as invested with certain prerogative copyrights; for, if the crown is capable of an exclusive right in any one book, the subject seems also capable of having the same right in another.

But, exclusive of such copyright as may subsist by the rules of the common law, the statute 8 Anne. c. 19. hath protected by additional penalties the property of authors and their assigns for the term of foruteen years; and hath directed that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: ...


See generally, Cyprian Blagden, The Stationers' Company, (1960), Bruce W. Bugbee, Genesis of American Patent and Copyright Law, (1967), John Feather, A History of British Printing, (1988), Benjamin Kaplan, An Unhurried View of Copyright, (1967), Lyman Ray Patterson, Copyright in Historical Perspective, (1968), Harry Ransom, The First Copyright Statute, (1956). And also, 1--5 Edward Arber, A Transcript of the Registers of the Company of Stationers of London 1554-1640, (org.1875 rep.1967).
An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, 8 Anne, c.19.
See especially, John Feather, The book trade in politics: the making of the Copyright Act of 1710, 8 Publishing History 19, 31--36 (1980).
Id. at 35--36. Itallic parts were deleted from and parts in square brackets were inserted into original draft.
An act concerning monopolies and dispensations with penal laws and the forfeitures thereof, 21 Jac.1, c.3.
An act for priventing abuses in printing seditious, treasonable, and unlicensed books pamphlets, and for regulating of printing and printing-press. 13 & 14 Char.2, c.33.
Tonson v. Collins, (1761) 1 Black W. 322, 96 Eng. Rep. 169.
See especially, Feather, History, supra note 1, at 77 et seq., Patterson, History, supra note 1, at 154 et seq.
(1769) 4 Burr. 2302, 98 Eng. Rep. 201.
2 Sir W. Blackstone, Commentaries on the Laws of England, 400--407 (4th ed. 1771).
John Locke, Two Treatises of Government, (Cambridge University Press, 1991).
(1774) 4 Burr. 2408, 98 Eng. Rep. 257, 2 Brown. 129, 1 Eng. Rep. 837, XVII Parliamentary History of England, 953-1003 (Cobbett, William ed., 1813).
See generally, I,II John Tebbel, A History of Book Publishing in the United States, (1972), John Clyde Oswald, Printing in the Americas, (1937).
Whicher, The Ghost of Donaldson v. Beckett: An Inquiry into the Constitutional Distribution of Powers Over the Law of Literary Property in the United States, 9 Bull. Copyright Soc'y 102, 194 (1962), Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119 (1983).
Copyright Enactments of the United States 1783-1906, 11 (Thorvald Solberg ed., 2nd ed. Copyright Office Bulletin, No. 3, 1906).
Id. at 11--31.
Journal of the Continental Congress, 1774--1789, Worthington C. Ford et al. ed. (Washington, 1904--37) XXIV, 211n, 326--327.
See especially, Bugbee, supra note 1, at 125, Patterson, History, supra note 1, at 193.
S. Sidney Ulmer, James Madison and the Pinckney Plan, IX S. C. L.Q. 415 (1957), S. Sidney Ulmer, Charles Pinckney: Father of the Constitution?, IX S. C. L.Q. 225 (1958), Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution , 17 Geo. L.J 109 (1929).
Alexander Hamilton and John Jay and James Madison, The Federalist, (1929).
The Writings of James Madison, Gaillard Hunt ed. 10 (New York and London, 1900).
2 I. Brant, James Madison 370--71 (1948).
An act for the encouragement of learning, by securing the copies of maps, charts, books and other writings, to the authors and proprietors of such copies durig the times therein mentioned, 1 Stat. 124.
Nicholas v. Ruggles, 3 day 145 (Conn. 1808), Ewer v. Coxe, 8 Fed. case. 917 (No. 4584) (C.C.E.D.Pa. 1824), Clayton v. Stone, 5 Fed. Cas. 999 (No. 2872) (C.C.S.D.N.Y. 1829).
2 James Kent, Commentaries on American Law, 375 et seq. (Oriver W. Holmes, Jr. ed., 12th ed. 1873).
Joseph Story, Commentaries on the Constitution of the United States , 37 (5th ed. 1891).
33 U.S. 591.
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, (1903). United Dictionary Co. v. G & C Merriam Co., 208 U.S. 260, (1908). Kalem Co. v. Harper Bros., 222 U.S. 55, (1911).
Paul Goldstein, Copyright's Highway: from Gutenberg to the Celestial Jukebox, 15 (1995).
B. Rand, Correspondence of Locke and Clarke, 39 (org.1927 rep.1975)
2 Sir W. Blackstone, Commentaries on the Laws of England, 400--407 (4th ed. 1771).

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to Hideaki's Home Shirata Hideaki
Assistant Professor of Hosei Univ. Faculty of Social Sciences