Table of Contents:

- England and the Statute of Anne

- The Colonies and Copyright

- The Constitutional Clause

- The First Copyright Act

- Statutory Revision

- Amendments to the 1909 Act

- The 1976 Act

- Amendments to the 1976 Act

Supplement

- Amendments to the 1976 Act

- The Digital Millennium Copyright Act

Chapter 1 – Introduction

England and the Statute of Anne

The United States’ earliest statutes and case law were imported from England, where, under the common law, an author’s right to prevent the unauthorized publication of his or her manuscript appears to have been recognized on the principle of natural justice, the manuscript being the product of intellectual labor and considered as much the author’s own property as the physical substance on which it was written.6 Sir William Blackstone, English jurist and writer on law, associated such protection with the law of occupancy, which involves personal labor and results in “property,” something peculiarly one’s own (as implied by the Latin root “proprius”).7

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Ages before Blackstone, the Irish King Dermot enunciated the same principle in settling a dispute in the 560s between Abbot Fennian of Moville and St. Columba (in his presaintly days) over the latter’s furtive copying of the Abbot’s Psalter, declaring la gache boin a boinin, le gach leabhar a leabhrum; that is, “to every cow her calf and to every book its copy.” Although the story is popularly believed to be apocryphal, the nineteenth-century scholar Augustine Birrell relates how a copy of the Psalter in St. Columba’s handwriting had been exhibited in the Museum of the Royal Irish Academy in Dublin in 1867, after having spent more than 1,000 years in the private possession of one family.8

The printing press, with its ability to make multiple copies of a work easily, is frequently cited as the impetus for efforts to secure a more formal type of protection for books. These early efforts were sometimes made by printers and sometimes by authors, and took the form of royal printing licenses. Venice, Italy, predated England both in the introduction of printing and in the granting of printing licenses. In 1469, the Venetian Senate granted a German printer, Johannes de Spira, a five-year monopoly on the printing of the letters of Cicero and Pliny.9 On September 1, 1486, author Antonio Sabellico, the historian to the republic, was given the sole right to publish his Decade of Venetian Affairs, with a fine for infringement set at 500 ducats, and no term set for the duration of the right. In 1491, the Senate gave a similar right to Peter of Ravenna to print and sell his work The Phoenix.

Beginning in 1517, Venice adopted a series of general regulations governing printing and printing licenses. Of these, perhaps the most interesting is the 1545 decree of the Council of Ten, which prohibited publication of an author’s work without proof of the author’s permission. Another interesting decree is that issued by the Jewish community of Venice in 1623:

We have agreed to the reasonable and proper request of the worthy and honored Master Salamon Rossi of Mantua (may his Rock keep and save him) who has become by his painstaking labors the first man to print Hebrew music. He has laid out a large disbursement which has not been provided for, and it is not proper that anyone should harm him by reprinting similar copies or purchasing them from a source other than himself. Therefore, having seen the license granted by His Excellence, the Cattavero (may his glory by exalted), we the undersigned decree by the authority of the angels and the world of the holy ones, invoking the curse of the serpent’s bite, that no Israelite, wherever he may be, may print the music contained in this work in any manner, in whole or in part, without the permission of the above-mentioned author or his heirs for a period of fifteen years from this date. Nor is any Jew permitted under the terms of this decree to buy from any person, whether he be of our nation or not, any of these works without the permission of the above-mentioned author, who is to indicate by some special mark that he has consented to their sale by another party. Let every {Page 5} Israelite hearken and stand in fear of being entrapped by this ban and curse. And those who hearken will dwell in confidence and ease, abiding in blessing under the shelter of the Almighty. Amen.10

Germany was also active in the area of copyright. In 1528, Albrecht Dürer’s widow obtained an exclusive right to publish his works, and in 1532 she obtained an injunction against an unauthorized reengraving. Dürer himself may lay claim to the most aggressive copyright notice ever used, declaring in 1511:

Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximillian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.

Because of its great influence on the evolution of our copyright law, and without slighting the earlier and more sophisticated contributions of continental printers, England must be the focus of our attention. When William Caxton {Page 6} established his movable type printing press at Westminster in 1476,11 a new English trade was created; however, due to the small number of printing presses (estimated to be only four), problems of unauthorized reproduction were not immediately encountered. Manuscripts had, of course, been created and distributed before 1470, but the labor-intensive nature of hand production generally limited the number of copies that could be made.12 The ability of printers, via movable type, to produce large numbers of copies relatively quickly and inexpensively led to two important related developments: (1) a potentially large, new market of readers, and (2) the need to protect authors and publishers/booksellers from pirates bent on stealing that new market.

As might be expected, the Crown, through its ability to grant royal licenses and to suppress dissidence, played a very influential role in publishing. In 1504, Henry VII appointed William Facques as the first royal printer, granting him the exclusive right to print official documents. In 1518, a printing privilege was issued to the second royal printer, Richard Pynson, in the form of a two-year prohibition on others reprinting a Latin sermon by the dean of St. Paul’s Cathedral.13 Henry VIII was quite active in the granting of printing privileges. In 1533, there arose the first complaint of piracy by one of his licensees, that of Wynken de Worde, who had obtained the King’s privilege for his second edition of Whittinton’s Syntaxis. In this same year, an act was passed that ingeniously worked to the benefit of both English printers and the Crown by banning the importation of foreign books, and thereby ideas, such as those of Martin Luther.

Domestic control over printing was further tightened by use of the Privy Council. On November 16, 1538, Henry VIII decreed that all new books had to be approved by the Council before publication, a requirement that remained in effect in some form until 1694. Use of governmental bodies for censorship had its obvious disadvantages in an age that was becoming increasingly resentful of royal control. The solution was simple: exercise indirect control through the grant of an exclusive charter to the printing and book trade, which would carry out royal wishes in order to benefit from monopoly status. Thus, on May {Page 7 }4, 1557, to check the spread of the Protestant Reformation, the Catholic Queen Mary and King Philip granted a royal charter to the Worshipful Company of Stationers of London, thereby concentrating the entire printing business in the hands of the members of the Stationers Company.14 The Stationers Company charter was confirmed two years later by Queen Elizabeth, but this time with the goal of suppressing Catholicism.15

Because the Court of the Star Chamber had jurisdiction over the enforcement of royal decrees, the government and the Church could thereby exercise effective censorship and prevent the printing of seditious or heretical works through the Stationers Company (although this goal was not fully realized until 1566, the year of the first Star Chamber decree regulating printing).16 This unfortunate use of printing privileges as a censorship device had a decidedly {Page 8} negative impact on the protection of authors’ rights, as the privilege resided with the printer; authors were, for the most part, forced to rely on the beneficence of the Stationers, a group not contemporaneously associated with generosity.

Control over authors was asserted through mandatory entry of books in the Stationers’ Company register:

It began to be assumed that when an individual (stationer) entered a book in the Register, he acquired the unique right to print that book. Although this was not explicit in the Company’s own regulations for some years, it rapidly became the practice to fine those who infringed what the company’s records call “other men’s copies.”17

As one commentator described this evolution: “Registration gradually became a method of establishing proprietary rights and book entries (made when the registration fee was paid) ‘became a permission,’ an ‘Imprimatur,’ rather than cash receipt.”18 The rights granted to (or assumed by) the Stationers Company were not copyrights in the modern sense – the right to reproduce intangible intellectual creations – but rather rights in “copies,” the physical product, regardless of whether the work of authorship was ancient or contemporary. Authors qua authors were in no way protected, although they may have been able to claim the protection of the common law for unauthorized reproduction of their unpublished manuscripts. Authors who could not make satisfactory arrangements with a member of the Stationers Company occasionally attempted to sell their works themselves by subscription, only to be subjected to bitter public recriminations by the Stationers.

After the chartering of the Stationers Company, Star Chamber decrees regulating printing were issued in 1566, 1586 (a particularly important one, drafted by Archbishop of Canterbury John Whitgift), 1623, and 1637. This final decree represented an impressive codification of all the Star Chamber’s printing ordinances. Consisting of 33 clauses, the topics covered in the 1637 decree included prohibitions on the printing of books and pamphlets not licensed by or entered upon the register books of the Stationers Company, and a requirement that licensees ensure that the books they printed did not contain material contrary to the Christian faith and doctrine, or to the discipline of the Church or State. Perhaps this last requirement explains the expansion of the Star Chamber’s authority to include ballads, charts, and portraiture, in addition to books.

In 1640, the Star Chamber was abolished by the Long Parliament during the Puritan revolution, and the power of the Stationers Company diminished. Indeed, all of the regulations restraining the press were also eliminated. The result was described as an “utter shattering and breaking up of the old order of things and the commencement of an increasing liberty of printing which {Page 9} has ever since augmented.”19 One adumbration of the new era is found in a remarkable order by the House of Commons decreeing that

the Masters and Wardens of the Company of Stationers shall be required to take especial Order that the printers do neither print nor reprint anything without the name and consent of the Author. And that if any Printer shall notwithstanding print or reprint anything without the consent and name of the Author that he then shall be proceeded against as both Printer and Author thereof, and their names to be certified to this House.20

In 1643, “the licentiousness of libels” of a free press led Parliament to pass a licensing act (patterned after the Star Chamber decrees) for the benefit of the Stationers Company, including search and seizure powers. This act prompted the outrage of John Milton, who, in 1644, excoriated the Stationers Company in his Areopagitica, a Speech for the Liberty of Unlicensed Printing.21 Nevertheless, in 1649, at the beginning of the Commonwealth, a general printing act, again patterned after the Star Chamber decree of 1637, restored to the Stationers Company many of its former powers. This Act gave a small {Page 10} recognition to authors, by requiring that their names appear on each copy of their works.

But the scope of the Stationers’ authority began to be chipped away. In 1653, another general printing act took away the Stationers Company’s responsibility for resolving disputes over exclusive rights and vested it with the Council in State. Oliver Cromwell’s printing order of 1655 subsequently gave to the Council many of the duties formerly exercised by the Stationers. At the beginning of the Restoration, in 1660, disputes arose over giving the Stationers Company any enforcement powers. In 1662, Parliament passed a new printing act, based on the Star Chamber decree of 1637 and the 1649 Printing Act. Except for books published under a royal patent or licensed by the Secretary of State, published pamphlets and books were to be entered in the register of the Stationers Company as proof of ownership and censorship approval. Every copy was required to contain a statement to the effect that the work was not “contrary to the Christian faith, or to the doctrine or discipline of the Church of England or against the State and government of the realm or contrary to good life or good manners.”

Enforcement powers were, however, given to the Surveyor of the Press, Sir Roger L’Estrange, who immediately involved himself in the printing business, including attending meetings of the Stationers Company, much to the Stationers’ chagrin. The 1662 Act was renewed in 1664 and 1665, this last Act expiring in 1679. A new charter was granted to the Stationers Company by Charles II in 1684. A new licensing act, with a seven-year term, was passed in 1685 and extended in 1692 for two additional years.

The world was beginning to change, however. Government censorship, government-created abusive monopolies, and lack of protection for authors were becoming inconsistent with the spirit of the Age of Enlightenment. As a consequence, in 1694 the world of the licensing acts and exclusive Stationers’ rights ended, as the House of Commons, aided by arguments purportedly drafted by John Locke, refused to renew the 1692 Act. Independent printers sprang up in competition with the Stationers. For five straight years thereafter, the Stationers Company unsuccessfully petitioned Parliament for a new licensing act and then fell silent, no doubt regrouping to develop a new strategy.

In 1703, 1704, 1706, and 1707, petitions to Parliament were presented by the Stationers. On February 26, 1707, leave was granted to introduce a Stationers’ sponsored bill “for securing property in such books as have been or shall be purchased from, or reserved to, the authors thereof.” A bill was introduced two days later, but died in committee. This new approach of emphasizing the author as the source of rights was taken not out of a conversion to the cause of authors, but out of a strategic judgment that the Stationers could hide behind the cloak of authors.22

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A new bill was presented to the House of Commons on January 11, 1710.23 After being amended in committee on February 25 and again on the floor on March 14, the bill was sent to the House of Lords, which considered it on March 16, 24, and 30. On April 3, a committee amended the bill and reported it to the floor of the House of Lords, as amended. The House of Lords recommended approval on April 4. A conference committee held on April 5, the last day of the Parliament, quickly agreed to a final version of the bill.24 Royal assent was obtained, and the Statute of Anne, “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” became effective on April 10, 1710.25

The Stationers Company ended up getting far less than it had petitioned for because Parliament, instead of recognizing perpetual rights, passed a law limiting the exclusive right of publication to a set term of years and containing other provisions limiting power previously enjoyed by the Stationers. Most importantly, the Statute of Anne was the first act to directly protect the rights of authors. It did so by granting them the exclusive right to reproduce their intangible creations, rather than as in the past by granting a printer or bookseller the right to “copies” of the physical book, whether Pliny or Milton.26 Because of the Statute of Anne’s historical importance to the development of United States copyright laws, some of its provisions are worth noting.

The Statute of Anne was limited to “books,” i.e., literary works. For existing works, “authors or their assigns” were granted the exclusive right of publication for 21 years from the effective date of April 10, 1710. For new works, the right ran for 14 years from the date of publication; the author, if living at the expiration of such term, was granted the privilege of renewal for 14 more years. Due to a belief that “many Persons may through Ignorance Offend against this Act,” protection for the original, but not the renewal term, and, of course, penalties, were conditioned upon entry of the title of the work in the register books of the Stationers Company before publication as evidence of ownership (but, importantly, no longer in the name of a member of the Company). Somewhat later, as a further security to the general public so that “none may offend through ignorance of the copyright,” a provision for notice of entry in the register books of the Stationers Company was required to appear on every copy of the published work. Assignments of rights had to be similarly {Page 12} recorded. These requirements kept the Stationers Company involved in the administration of rights, and became an unfortunate precedent for our registration system.

Deposit of nine copies of the work for use by certain libraries of the Kingdom was required, but not as a condition of copyright.27 In order to protect the public from the monopolistic prices formerly charged by the Stationers, individuals believing that the price of a copyrighted book was “too high and unreasonable” could petition designated officials, who were empowered to reform the price (this provision was repealed in 1739 after it proved unworkable). Penalties qui tam of a penny per sheet were provided as well as the remedy of forfeiture, but with a three-month statute of limitations.

While the Statute of Anne seemed straightforward, the Stationers nevertheless contended that their former perpetual rights had not been taken away, but rather that the Act merely enabled them to obtain summary remedies against piracy.28 For more than half a century, in what became known as the “Battle of the Booksellers,” the lower courts sustained them in this view by granting injunctions after expiration of the statutory term. The question became particularly important after 1738, when copyrights for new works began to expire. The Stationers sought relief in Parliament, but Parliament, concluding that the principal problem was importation of Irish reprints, instead passed an act in 1739 forbidding the unauthorized importation of English language books.

The question of whether the Stationers’ protection was perpetual or limited by the terms set forth in the Statute of Anne thus remained. In 1774, in Donaldson v. Becket,29 the House of Lords ruled against the Stationers, holding that {Page 13} on publication the right endured only for the term fixed by the statute. This decision overruled a case decided only five years earlier by the King’s Bench, Millar v. Taylor.30 The effect of Donaldson was twofold: (1) it confirmed {Page 14} the step of the Statute of Anne in moving property rights in literary works away from publishers and toward authors; and (2) it provided the basis for an 1834 decision by our Supreme Court, holding that federal copyright is entirely a creature of statutory law, as contrasted with the natural law approach taken on the continent.31

Although there was no bar to foreign authors claiming rights, the Statute of Anne expressly permitted importing books in foreign languages without recognizing the rights of the foreign authors; it said nothing about importing books in English or books printed or reprinted abroad. Such a contingency seemed out of the question, as the printing business had not as yet become a well-developed institution in the colonies.

Next section: The Colonies and Copyright

6 See Atkins v. Stationers Co., Carter’s Rep. 89 (1666) (“copyright was a thing acknowledged at common law”). The source of this common law was eloquently stated in Millar v. Taylor, 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (1769) (Mansfield, Lord Chief Justice): “From what source, then, is the common law drawn, which is admitted to be so clear, in respect of the copy before publication? From this argument – because it is just, that an author should reap the pecuniary profits of his own ingenuity and labor.” This same emphasis on natural rights as the foundation for copyright is expressed in some of the colonial statutes. See infra, notes 63-64. The opinions of the other judges in Millar v. Taylor and in Donaldson v. Becket, 4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774) are an invaluable resource for research into the existence (or nonexistence) of common law copyright in England. See also Prince Albert v. Strange, 1 Mac. & G. 25, 43 (H.L. 1849) “(the exclusive rights in the author of unpublished compositions . . . depend entirely upon the common law of property”); Jeffreys v. Boosey, 4 H.L.C. 815 (1855).

7 2 Commentaries 405. But cf. A. Birrell, The Law and History of Copyright 11 (1899): “Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.” Locke’s theory of natural law rested more on labor than occupancy. See J. Locke, The Second Treatise of Government §27, reproduced in Two Treaties of Government (Laslett ed. 1970).

By contrast with the British emphasis on occupancy and labor as the foundation for copyright, continental theory, emphasizing “a personal and indissoluble link between the author and his creation” is based on Kant. See Kerever, Co;yright: The Achievements and Future Development of European Legal Culture, Copyright 130 (April 1990). See further discussion of the civil and common law approaches in Chapter 2, text at notes 53-74.

8 See A. Birrell, The Law and History of Copyright 42 (1899).

9 Acopy of de Spira’s second edition of Cicero’s Epistoles ad familiares, printed in 1469, is owned by the Library of Congress.

10 Rossi’s music may be heard on the compact disc Music Judeo-Baroque by the Boston Camerata (Harmonia Mundi 1979, director Joel Cohen). The notes for this recording state that Rossi’s secular music “was so highly regarded that the Gonzaga prince dispensed him from the obligation to wear on his clothing the yellow Jewish star,” and that his most unusual work was the collection “Shirim Asher Li’Shlomoh,” published in Venice in 1622 and consisting of “a series of psalms and prayers in the Hebrew language set in the musical idiom of contemporary Italy.”

Rossi’s decree was hardly the first, but it was the most colorful issued under Jewish law. Menachem Elon, in an interesting, though too brief, discussion of application of the hassagat gevul to intellectual property, wrote:

[F]rom the 16th century onward . . . copyright became a defined legal right, protected by sanctions and partly based on the extended doctrine of hassagat gevul.

As in other legal systems, this development arose from the spread of printing and a need for the protection of printers’ rights. As early as 1518 as approbation (haskamah) to the Sefer ha-Bahur of Elijah Levita contained a warning, on pain of ban, against anyone reprinting the book within the following ten years. In the mid-l5th century, when Meir Katzenellenbogen complained to Moses Isserles about the appearance of a rival edition of Maimonides’Mishneh Torah (shortly after his work had been printed by Katzenellenbogen), Isserles responded by imposing a ban on anyone purchasing the Mishneh Torah from Katzenellenbogen’ s competitor. . . . Thereafter it became customary to preface books with approbations containing a warning against trespass in the form of any unauthorized reprint of the particular book within a specified period.

The Principles of Jewish Law 344-45 (M. Elon ed. 1975, Encyclopaedia Judaica, Jerusalem, Israel).

Elon also refers to a later recognition “of a full legal right in respect of one’s own spiritual creation.” Id. at 346.

11 Earlier works had been printed in 1430 in Haarlem (the Netherlands), Mainz (Germany), and Venice. The Gutenberg Bible was printed in Mainz in 1455. The previous year, Gutenberg had printed Letters of Indulgence in multiple copies for the church. Some scholars believe a book was printed at the University of Oxford six years before Caxton’s first effort. See memorandum reproduced at the end of Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (1769).

12 But cf. A. Birrell, The Law and History of Copyright 47-48 (1899), who states that at the time of the invention of printing, there were 10,000 copyists at work in Paris and Orleans. Copyists were attached to the royal courts, and evidence suggests they organized into crafts fairly early. Records of the Stationers Company reveal a 1357 entry for “Writers of Court Hand and Text Letters,” and a July 1403 petition from “The Craft of Writers of Text Letters, those commonly called ‘limners’ and other good folk, citizens of London, who are wont to bind and sell books.” See 1 A Transcript of the Registers of the Company of Stationers of London, 1554-1640 A.D. at xxiii (E. Arber ed. 1875-1894).

13 This grant clearly reveals the non-author-based nature of the printing privileges.

14 See Feather, Authors, Publishers and Politicians: The History of Copyright and the Book Trade, 10 European Intellectual Property Review 377 (Dec. 1988) (“In essence, the [. . . charter] allowed the [Stationers] Company to regulate the commercial aspects of the trade: apprenticeship, the number of presses and printing houses, the right to print and sell books, and so on. The Company then devised its own set of rules which would enable it to reach these objectives, for which it had petitioned the crown before the Charter was granted”); C. Blagden, The Stationers Company (1960); 1 A Transcript of the Registers of the Company of Stationers of London, 1554-1640 A.D. (E. Arber ed. 1875-1894).

15 Not all stationers were men: “By the middle of the sixteenth century, women were well established in printing and publishing businesses throughout Europe. . . . Many of these women were widows who took over and operated the printing houses after their husbands’ death. Some, however, were businesswomen in their own right.” Women in the Renaissance (Folger Shakespeare Library 1989). See also Clark, Working Life of Women in the Seventeenth Century 161-70 (1982) (describing how although widows inherited their husbands’ printing businesses, because they had not gone through the apprenticeship program required to actually engage in printing, they were excluded from the technical part of the business). In 1474 in Mantua, Italy, Estellina Conant, a woman, began printing books in Hebrew. See A. Karp, From the Ends of the Earth: Judaic Treasures of the Library of Congress 167 (1991).

16 The powers granted under the Stationers’ charter were, nevertheless, formidable, including the authority to “take away, have, burn, or convert” to their own use whatever they thought was “contrary to the form of any statute, act, or proclamation made or to be made.” Under this authority, even the presses themselves were occasionally destroyed. A November 16, 1538, decree by Henry VIII took a more direct approach to censorship, requiring that all books printed in England be approved by the Crown’s censors before publication. Records of the Stationers Company, recited by Justice Wiles in Millar v. Taylor, 4 Burr. 2303, 2313, 98 Eng. Rep. 201, 207 (1769), reveal entries for fines imposed for unauthorized printing from 1559 onward. How the fines were enforced is unknown. The Star Chamber decree of 1566 included imprisonment for three months for violation of its terms. Books still had to be approved by the Privy Council before publication. The members of the Stationers Company “were careful not to register books which might be politically unacceptable, but they did not demand that a book should be formally approved by the Privy Council before entry, although the regulations on this point were tightened up in 1637.” Feather, Authors, Publishers and Politicians: The History of Copyright and the Book Trade, 10 European Intellectual Property Review 377, 378 (Dec. 1988).

17 Feather, id. at 377.

18 Stewart, “Two Hundred Years of English Copyright Law,” reprinted in 200 Years of English and American Patent, Trademark and Copyright Law 81, 83 (1976).

19 1A Transcript of the Registers of the Company of Stationers of London, 1554-1640 a.d. at xvii (E. Arber ed. 1875-1894).

20 A.Birrell, The Law and History of Copyright 65 (1899). Birrell is of the opinion that this order was intended more to punish printers than to protect authors, for he could find no evidence of actions taken to enforce its provisions. Id.

21 In a nice pun, Milton described the Star Chamber as “fallen from the stars with Lucifer.” There is some disagreement over the meaning of Milton’s famous statement in the Areopagitica: “God forbid the just retaining of each man his several copy should be gainsaid.” Compare comments of Mr. Justice Wiles in Millar v. Taylor, 4 Burr. 2303, 2314, 98 Eng. Rep. 201, 207 (1769) with A. Birrell, The Law and History of Copyright 67, 77 (1899). Whatever the correct interpretation of the passage, in 1667, 23 years later, Milton sold his rights to Paradise Lost for a combined sum of Þbp18. Other authors, however, such as Ben Jonson and John Dryden, appear to have been more successful in retaining and profiting from their rights.

Authors’ resentment at booksellers’ purchase of their works at low prices is described by Cervantes in the following dialogue from Don Quixote (1615):

“But tell me sir, is this book printed on your own account or have you sold the copyright to a bookseller?”

“I am printing it on my own account,” replied the author, “and I expect to gain a thousand ducats at least from this first edition of two thousand copies. They will sell like hot cakes at six reals a piece.”

“You are very good at figures,” said Don Quixote, “but it is very clear that you do not know the tricks of the printing trade. . . . When you find yourself saddled with two thousand copies of a book you will find your back so sore it will frighten you.” . . .

“What then?” exclaimed the author.

“Would you have me give it to a bookseller, who will pay me three farthings for the copyright and even think he’s doing me a kindness by giving me that? I don’t print my books for fame in the world, for I am already known by my works. I want profit, for fame isn’t worth a bean without it.”

22 Feather wrote that this approach “follow[ed] a line of argument suggested by Daniel Defoe in a pamphlet published some three years earlier.” Feather, Authors, Publishers and Politicians: The History of Copyright and the Book Trade, 10 European Intellectual Property Review 377, 378 (Dec. 1988).

23 For a fuller discussion of the progress of the bill, seeRansom, The First Copyright Statute 94-98 (1956).

24 Among the trade-offs made during the conference, two give an indication of the different approaches taken to the issue by the two Houses. The House of Lords receded to the House of Commons’ insistence that the Act contain a provision against exorbitant prices, while the House of Commons receded to the House of Lords’ insistence that the renewal term revert to the author. This latter provision is certainly a distinguishing feature of the Statute of Anne, and justifies the statute’s frequent description as the first Act to protect authors.

25 8 Anne Ch. 19 (1710).

26 Another pro-author feature of the Statute of Anne was the reversion right. See supra note 24.

27 See Cambridge Univ. v. Bryer, 16 East. 317 (1812). Deposit in England began as part of a 1611 agreement between Sir Thomas Bodley and officials of the Stationers Company for the benefit of the Bodleian Library at Oxford. This agreement appears to have been more honored in the breach than in practice, and perhaps as a result, a deposit law was incorporated in the 1662 Licensing Act. A provision for the benefit of preserving books and other cultural materials was embodied in the 1537 Ordonnance de Montpelier, promulgated by Frances I of France. Other depots legal are still found in many Berne Union countries (including France and England).

28 The reason for this position is not difficult to discern. As Feather notes:

The Act can only be understood in terms of its origins in the inner circles of the book trade, dominated by the copy-owners and their determination to protect their investment in copies. Perhaps because of this, the Act is vague about what rights are actually being protected. Nowhere is there any attempt to define ‘literary property,’ and the Act says nothing about what happens to such property at the end of the 14-year or 21- or 28-year term of protection. Within the book trade itself such precision was quite unnecessary, for these matters were fully understood in light of traditional practices. ‘Literary property’ was what a publisher obtained from an author: it was a publisher’s right not an author’s right. The trade saw the Act simply as providing a clear statutory basis for civil suits in defence of their property, with penalties prescribed against the guilty.

Feather, Authors, Publishers and Politicians: The History of Copyright and the Book Trade, 10 European Intellectual Property Review 377, 379 (Dec. 1988).

29 4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774). Considerable confusion over the House of Lords’ judgment in Donaldson v. Becket regarding the existence of a common law right has been caused by the failure to distinguish between the advisory opinions of the judges of the King’s Bench, Common Pleas, and Exchequer to five questions submitted to them by the House of Lords, and by apparent inaccuracies in reporting the votes of the judges. This topic is explored in A. Birrell, The Law and History of Copyright 124-28 (1899) and in H.R. Rep. No. 7083, 59th Cong., 2d Sess. 3 (1907).

30 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769). Millar was a member of the Stationers Company, Taylor predictably was not. An earlier collusive suit brought by the Stationers in 1760 to test their alleged perpetual rights, Tonson v. Collins, was dismissed after three rounds of argument (Blackstone represented the plaintiff), when its collusive nature was uncovered. See A. Birrell, The Law and History of Copyright 106-10, 124-28 (1899). For discussions of Millar and Donaldson, see Birrell, id. at 111-38; Whicher, The Ghost of Donaldson v. Becket, 9 Bull. Copyright 102, 124-41 (1961); and Abrams, The Historic Foundations of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119 (1983). It is interesting to note that both Millar and Donaldson involved the same work, James Thomson’s The Seasons, first published in 1726. This came about when, after his victory, Millar sold his rights to Becket; Donaldson, a Scottish bookseller, was the alleged infringer. The Seasons is, no doubt, better known to classical music lovers from Joseph Haydn’s oratorio of the same name. Baron von Swieten, a man of considerable musical and artistic sophistication, had translated Thomson’s work into German for use as Haydn’s libretto. Haydn did not, however, see eye to eye with his royal librettist, and is reported to have found Thomson’s “many graphic depictions and mimicry tiresome,” and “a lot of nonsense that could better be done without.” As it was, von Swieten eliminated philosophical (Thomson was an exponent of the English bucolic philosophy of Dilthey), historical, and geographical details, leaving, principally, allegorical material evoking the relationship between the changing seasons and the seasons of life.

The Scotch involvement in the suit may not be coincidental. In a witty but all too brief article, Peter Prescott suggested that the Stationers “did not really mind if they had legal copyright or not. They probably didn’t need it.” Prescott, The Origins of Copyright: A Debunking View, 11 European Intellectual Property Review 453 (1989). Prescott’s view is that since “publishers were few in number, known to one another and generally living in a small geographical area, it is evident that control of competition was to them a matter easy of execution.” Id. at 454. Prescott argues that the Stationers pushed for statutory protection because they feared parallel imports from Scotland, which had a virtually unregulated printing trade and no common law copyright in published works. See Midwinter v. Hamilton (1748) Mor. Dict. 8305 and (1773) Mor. Dict. 8307, involving the same printer as in Donaldson v. Becket. The stationers’ fear was prompted by the imminent uniting of England and Scotland and the resulting creation of a common market. The fear was realized by the 1707 Act of Union, which “threw the lucrative English book trade open to the canny entrepreneurs from across the Tweed. These publishers of Edinburgh and Glasgow (the indefatigable Donaldson was one of them) were not subject to the London printing trade. Not only were they free to print and export old works, but the production of modern authors as well.” Id. at 454-55. Prescott concludes that “[t]he real motive behind the first Copyright Act, therefore, seems to have been an attempt to export copyright control to a region of Great Britain where the Stationers’ writ did not run.” Id. at 455.

31 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), discussed in the text infra notes 102-107. But see Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 147 Revue Internationale du Droit D’Auteur 125 (1991).