The history of copyright {FN1: An excellent discussion of the history of copyright can be found in Chapter 1 of Copyright Law and Practice by William Patry (BNA Books, 1994)} is generally regarded as beginning with the invention of the printing press. That was when the copying of works, beyond what could be done by hand, became possible. Copyright law has reacted to changes in technology ever since. By the end of the 15th century, movable-type printing presses were in use in England, which permitted the rapid and inexpensive reproduction of written material (at least when compared to hand-copying or custom-engraving an entire page). This, in turn, created a new market of readers who could not previously afford books, as well as an industry to supply those readers.

Initially, there was no problem with unauthorized copying, since the number of printers were few and well-known to one another. The first regulation of printing was not to prevent unauthorized copying, but to prevent works critical of the Crown from being printed. A royal charter as the exclusive printer of books was given in 1557 to the Worshipful Company of Stationers of London, a group of printers. To print a book, a printer had to register it with the Stationers Company, and registration was not allowed if another printer had previously registered the manuscript.

I.A. The Statute of Anne

The Stationers’ monopoly ended in 1692, and independent printers began to compete with the members of the Stationers Company. The Stationers asked Parliament for legislative help, and on April 10, 1710, the Statute of Anne became the first English copyright law. (Its full name is quite a descriptive mouthful: “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.”)

The Statute of Anne was not the solution the Stationers had wanted. Instead of providing perpetual rights to a work, it granted protection for new works for 14 years from the date of publication and allowed authors to renew the protection for another 14 years if they were alive at the end of the initial protection period. Existing works were protected for 21 years from the effective date of the law.

More important, the Statute of Anne granted the rights to control copying to the author of a book, not the publisher. Publishers enjoyed rights to print a book only if granted to them by its author, certainly not what the Stationers Company desired from Parliament.

Registration with the Stationers Company was required before publication so that printers wouldn’t innocently infringe an author’s copyright, and if there had not been that registration, no copyright would have existed under the law. A later amendment also required that a notice of the copyright registration be included in each printed copy. Any assignment of the copyright had to be recorded with the Stationers Company. Finally, copies of the best edition of the book had to be deposited at nine specified libraries.

I.B. Federal Copyright

As in England, the first copyright laws in the American colonies were used to control what was published. Shortly after the Revolutionary War, the Continental Congress recommended that the states adopt copyright laws. With the new Constitution, the Congress was given 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.” {FN2: U.S. Const., Article I, §8} the “Patent and Copyright Clause.” As the terms were used at that time, “science” referred to knowledge, and the “useful arts” are what we now call technology. One can see that there are two parallel themes running through the clause: science-authors-writings and useful arts-inventors-discoveries.

An observation here – there is very little discussion of the history of the clause in the Constitution. In Federalist Paper 43, Madison states:

The utility of this power [to grant patents and copyrights] will scarcely be questioned. The copy right of authors has been solemnly adjudged in Great Britain to be a right at 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 effective 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.

Arguably, the reason for the clause was to make clear that such protections would be national in scope, rather than a patchwork system in which each state had its own rules. A special clause was necessary to give Congress the authority to put in place such a national system. But Article I, Section 8 also gives Congress other powers. In particular, the Commerce Clause gives Congress the authority “to regulate commerce with foreign nations, and among the several states.” Starting at the time of the New Deal, the courts have read that clause expansively, saying that it gives Congress the authority to regulate virtually anything that affects interstate or foreign commerce. Given today’s broad reading of the Commerce Clause, and the national and international scope of copyright and patents, there is little need for a separate Patent and Copyright Clause.

Many commentators now treat the Patent and Copyright Clause as a limitation on Congress, not a grant of authority. Patents and copyrights must have limited durations, even though there would be no such restriction if Congress legislated them under the Commerce Clause. (Federal trademark protection gets its authority from the Commerce Clause, and trademarks are protected as long as they are being used.) Others argue that any copyright or patent law passed by Congress must be shown to “promote the Progress of Science and the useful Arts” when they feel that copyright or patent is limiting something that they feel is worthwhile. And the Supreme Court has said that “originality is a constitutional requirement” for copyright protection. {FN3: Feist v. Rural Telephone, 499 U.S. 340, 346, 18 USPQ2d 1275, 1278 (1991)}

Federal copyright can be viewed as a bargain between the creator of the writing or invention and the people, as represented by the federal government. In trade for protection for a limited term (and the ability to commercially exploit the writing or invention during that time because of that protection), the creator lets the public have all rights to the writing or invention after the term of protection ends. The writing or invention enters the “public domain,” where anybody can do whatever he or she wishes with it. (Since Congress continues to extend the term of copyright protection, there are some that question whether this original bargain theory holds today.) This public bargain theory of copyright is in contrast to the copyright theory for most European countries (except England), where a writing is treated as the “sacred child of its creator,” and is protected not only from unauthorized reproduction but also from things that change its appearance or integrity or its attribution to its creator. These “moral rights” are recognized in United States copyright law only for works of fine art, like oil paintings, that are produced in limited numbers.

I.C. The Early Statutes

Congress initially protected the works of authors by private bills, in part because some authors believed the constitutional provision (“Congress shall have the power to protect . . .”) required Congress to provide the protection for each specific work. Clearly, this would be unworkable, and on May 31, 1790, President Washington signed the United States’ first general copyright act into law. The Copyright Act of 1790 was based on the Statute of Anne, granting initial rights in a work to its author for 14 years with a renewal term of another 14 years. Although a notice was not required, registration of the work with the clerk of the district court and publication of the registration in a newspaper for four weeks was necessary. One copy of the work also had to be deposited with the Secretary of State within six months of publication.

The 1790 Act gave protection to any “map, chart, or book” and also protected unpublished manuscripts. But protection was limited to United States citizens, allowing the unrestricted copying of foreign (chiefly English) books.

The copyright laws have been revised many times, including complete revisions in 1831, 1870, 1909, and 1976. Between those revisions, amendments were made to accommodate additional subject matter, new technologies, and a more international view of copyright. For example, in 1802 historical and other prints were included as copyrightable subject matter and a requirement of a notice of copyright on every printed copy was added. The consequence of a lack of a proper notice was not spelled out, but a court case held that protection was lost without the notice. Later revisions to the copyright statutes clarified that protection would be lost without proper notice at the time of publication.

In 1846, an amendment required the deposit of copyrighted works with the Smithsonian Institution and the Library of Congress, along with the original requirement of deposit with the Secretary of State. A performance right for dramatic works was added in 1856, and photographs were given protection in 1865. In the major revision of 1870, administration of copyright registration was centralized in the Library of Congress, where it remains to this day, and many other types of works (including paintings and statues) were included within its scope. The deposit requirement of two copies to the Library of Congress provided a free copy of virtually every book published for the national library.

In 1891, the United States finally recognized the copyright of foreign authors if they registered their copyright in the United States and the book included the proper notice. But copyright of foreign books written in English was conditioned on the work being printed in the United States or from plates first made in the United States. This manufacturing clause would remain in the copyright statutes until 1986.

I.D. The Copyright Act of 1909

At the start of the twentieth century, it was clear that there was a need for an omnibus revision of the copyright statutes. New media and types of works needed to be addressed. The result was the Copyright Act of 1909, {FN4: 35 Stat. 1 (1909)} which would remain the framework for copyright protection until the Copyright Act of 1976 became effective in 1978. The 1909 Act expanded the list of protected works and included a catchall indicating Congress’s intent to protect “all the works” of an author. It also extended the copyright term to an initial period of 28 years and a one-time renewal period of 28 years, dating from the first publication with proper notice. Publication without notice still resulted in loss of copyright protection.

To solve a dispute over the protection of mechanical reproductions of musical compositions, such as phonograph records, a compulsory license was introduced. {FN5: Copyright Act of 1909, §1(e)} After the recording of a musical composition was allowed by its author, any other performer could record the work and pay a statutory royalty. Almost as an afterthought, Congress exempted from copyright the public performance of a recorded work in a jukebox.

The deposit requirement, registration formalities, and manufacturing clause of the previous copyright law were continued. Along with the bifurcated term of 56 years, these formalities kept the United States from joining the oldest international copyright agreement, the Berne Convention, which had been established in 1886 by a number of countries to provide international copyright protection. Because the United States would not change its laws to meet the Berne requirements by eliminating formalities such as notice and registration, and going to a term of at least 50 years after the death of the author, the Universal Copyright Convention (UCC) was established in 1952 by the United States and other countries, and in 1954 the United States made minor amendments to the copyright statutes to accommodate the UCC. {FN6: Pub. L. No. 83-743, 61 Stat. 655} Primarily, these consisted of changing the form of the required notice, limiting the deposit requirement for foreign works, and exempting many foreign works from the manufacturing clause.

In 1971, copyright protection was extended to sound recordings, which had previously been protected only by state law, if at all. {FN7: Pub. L. No. 92-140, 85 Stat. 391} However, it had again become clear that because of new technology and types of works, the Copyright Act of 1909 needed another major revision. In 1955, Congress authorized the Copyright Office to begin a study on a new copyright act. A draft bill was proposed in 1961, but legislation was not passed until 1976.

I.E. The Copyright Act of 1976

The Copyright Act of 1976 represented a dramatic change in the nature of copyright. While publication was the touchstone of the past copyright laws, the 1976 Act protected both published and unpublished works from the time of their fixation in a tangible medium of expression. It specifically preempted any state copyright law protecting unpublished works. {FN8: 17 U.S.C. §301}

The 1976 Act covered all “original works of authorship.” Following the Berne Convention approach, the copyright term ran until 50 years after the death of the author, rather than a term measured from the date of publication. {FN9: 17 U.S.C. §302} It gave broad rights to the copyright owner, but tempered these rights with a series of exceptions for particular cases, establishing a balance between authors and users of copyrighted works. It also codified a “fair use” exception, permitting the use of copyrighted works to be judged for fairness on a case-by-case basis. {FN10: 17 U.S.C. §107}

But while its scope and term of protection brought United States law in line with the Berne Convention, the Act retained the formalities of notice and registration and the manufacturing requirement, so the United States was still unable to join the Berne Convention.

Even though the 1976 Act took more than two decades to draft, at the time of its passage there were still difficulties in deciding how to treat computer programs and computer databases. Rather than further delay the passage, Congress established the National Commission on New Technological Uses of Copyrighted Works (CONTU) to study these issues and report back to Congress. In the meantime, a placeholder Section 117, preserving the status quo, was included in the 1976 Act. In 1978, CONTU issued its report, and in 1980 the Act was revised by adding a definition of computer programs and replacing Section 117. {FN11: 17 U.S.C. §117}

I.F. Later Legislation

In 1988, a few major changes were made to try to meet the requirements of the Berne Convention. The manufacturing clause had expired in 1986 and was no longer a hindrance. The mandatory notice requirement was eliminated, although notice could still be placed on a work. Registration was no longer necessary for foreign works, although it still is required for domestic works involved in litigation. Finally, after a century of considering it, the United States joined the Berne Convention.

Other amendments were made to the copyright statute to address digital recordings, satellite distribution of television, and other new technologies. But perhaps the most dramatic amendment came in 1998, when Congress passed the Digital Millennium Copyright Act (DMCA) {FN12: Pub. L. 105-304, 112 Stat. 2860} to address aspects of copyright particular to digital information. The DMCA made clear that copyright protected works transmitted in cyberspace, but it provided special liability exceptions for service providers on the Internet. It also provided legal support for technical measures to protect copyrighted material from unauthorized access.

Also in 1998, the duration of a copyright was extended by 20 years, so that it now stands at the life of the author plus 70 years. {FN13: Pub. L. 105-298, 112 Stat. 2827} This continued the trend of extending the term of copyright so that works that were still protected when the Copyright Act of 1976 was passed will not enter the public domain until 95 years after they were first published.