Copyright Law and Practice
by William F. Patry

Copyright © 1994, 2000 by The Bureau of National Affairs, Inc.
Reprinted with permission.

Table of Contents:

Chapter 1

- Introduction

- 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


- Amendments to the 1976 Act

- The Digital Millennium Copyright Act

Chapter 1 – Introduction

The Colonies and Copyright

The power of education and a free press are well known to autocrats and to the autocracy’s subjects. Sir William Berkeley, Charles I’s royal governor in Virginia, no doubt had this in mind when, in 1671, he remarked: “I thank God there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both.”32 Whether through God or the Crown, no printing was permitted in Virginia until 1730.

At the time of Sir William’s pronouncement, there was only one printing establishment in the colonies, the Cambridge, Massachusetts, press of the widow Glover and Matthew Daye, whose 1639 Bay Psalm Book is believed to be the first book printed in the colonies.33

Other colonies besides Virginia were also restrictive. In 1685, King James II instructed Thomas Dongan, the royal governor of New York, not to permit printing without Dongan’s personal permission. The Pennsylvania authorities shut down an effort to establish a printing press that same year, forcing the printer, William Bradford, to move to New York, where presumably he received Dongan’s permission to establish his business.

Given the prevailing environment, it is hardly surprising that printing in the colonies got off to a very slow start, and when permitted at all, was used, on the whole, to further the purposes of Church and State, not the general education of the population. For these reasons, as well as the lack of a substantial {Page 15} educated class in the colonies, colonial authors typically looked to England for their primary audience. For example, in 1650, the first volume of poetry known to have been written in America, Anne Bradstreet’s The Tenth Muse, Lately Sprung Up in America, was published in London.34 In 1702, Cotton Mather sent his Magnalia Christi Americana to England to be published, not even bothering with a colonial printer.35 There were exceptions, of course, such as Michael Wigglesworth’s best-seller The Day of Doom.36 For the most part, though, colonial printers made their living selling newspapers and writing supplies, and importing British books. Books were distributed locally; printers in one colony, therefore, had little competition from printers in other colonies. Indeed, in some cases, printers entered into agreements not to infringe each others’ books.37

In 1672, the Massachusetts General Court, the colony’s legislative body, perhaps to save expenses,38 turned to a private printer, John Usher. In order to protect himself against piracy, Usher petitioned the General Court to give him a monopoly for his work, The Book of General Lawes and Liberties. The General Court responded positively on May 15, 1672, by granting him the following printing patent:

Enacted, That no Printer shall print any more Coppies than are agreed and paid for by the owner of the Coppie or Coppies, nor shall he nor any other reprint or make Sale of any of the same without the said Owner’s consent upon the forfeiture and penalty of treble the whole charges of Printing and paper of the quantity paid for by the owner of the Coppie, to the said owner or his Assigns.39

Usher is said to have been unsatisfied with the 1672 law, and to have petitioned the General Court for more specific legislation. The next year he {Page 16} reputedly was granted such protection for a period of seven years.40 Almost 100 years after the Usher patent, on November 7, 1770, Williams Billings, a Boston choir master and composer, petitioned the Massachusetts House of Representatives to give him the “exclusive Privilege of selling a Book of Church-Musick, compos’d by himself, for a certain Term of Years.”41 Billings was ordered to prepare a bill, which he did on November 16, 1770. Because of doubts over Billings’ authorship of the work, the House continued the matter until its next session. On July 14, 1772, after Billings had petitioned the royal governor, the Majesty’s Council, and the House, he was granted the exclusive right to print and sell his work for a period of seven years.42 Despite this legislative success, the royal governor, Thomas Hutchinson, returned the bill to the House without signing it.43

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Connecticut (or the revolutionary era) proved to be more hospitable to Andrew Law, a well-known singing master, who complained in October 1781 that he had spent Þbp500 in hard money (not depreciated Continental currency) to publish one of his music books, A Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody, and would be financially ruined if it were pirated. The Connecticut General Assembly gave him an “exclusive patent” for a period of five years, with a penalty of Þbp500, with the condition that Mr. Law furnish “a sufficient number of copies” to the public “at reasonable prices.”44

The following year, 1782, Noah Webster sought protection of his soon-to-be-releasedA Grammatical Institute of the English Language.Webster, a Connecticut schoolteacher (and dissatisfied member of the bar) living in New York, composed his “blue-back” speller (the first part of AGrammatical Institute of the English Language), to provide an American textbook for American schools that were, at that time, using Aby-sel-pha,a British speller by Thomas Dilworth.45 Beginning in August 1782, Webster unsuccessfully lobbied the legislatures in New York, Pennsylvania, New Jersey, and Connecticut for general copyright statutes.

{Page 18}

On January 6, 1783, John Ledyard, the author of A Journal of Captain Cook’s Last Voyage to the Pacific Ocean, petitioned the Connecticut General Assembly for copyright protection. On January 29, 1783, the General Assembly, instead of passing a private bill for Ledyard, passed the first general colonial copyright statute.46

With the Connecticut statute as precedent, efforts began to get the other colonies to enact similar laws. Joel Barlow played an important role in this effort. Barlow was the author of the poem The Vision of Columbus and had been Minister to France. Barlow wrote to Elias Boudinot, president of the Continental Congress, providing specific examples of piracy as justification for the need for copyright protection.47 Others involved were Jeremy Belknap, a founder of the Massachusetts Historical Society, and Thomas Paine, who is said to have “counted copyright agitation among his many other revolutionary interests.”48 Paine is unique in the annals of copyright due to his participation {Page 19} also as a member of the French legislature that passed that country’s 1793 Copyright Act.49

On January 8, 1783, the Continental Congress received a copy of the Connecticut Copyright Act; two days later, it received a copy of the letter Barlow had written to Boudinot.50 On March 10, 1783, upon the motion of Hugh Williamson of North Carolina that “a committee be appointed to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works,”51 a committee comprised of Williamson, Ralph Izard (South Carolina), and James Madison (Virginia) was appointed.52 The committee issued its report on May 2, 1783, taking a strong natural rights approach to protection:

The committee . . . to whom were referred sundry papers and memorials from different persons on the subject of literary property, [are] persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius. . . .53

Based on the committee’s favorable recommendation, the Continental Congress passed an act54 that same day, encouraging all 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, administrators, and assigns, the copy right 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 copy right of such books for another term of time not less than fourteen years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors, or publishers, their executors, administrators and assigns, by such laws under such restrictions as to the several States may seem proper.55

These detailed provisions, unfortunately copied from the Statute of Anne, may in hindsight be seen as an indication that the first federal copyright statute {Page 20} would be retrogressive, relying on the stingy and cumbersome system developed by Parliament to deal with the Stationers’ abuses, rather than a bold new act appropriate to and in the spirit of the new nation.

Massachusetts and Maryland had anticipated the Continental Congress’s action, enacting laws, respectively, on March 1756 and April 21, 1783.57 The Massachusetts legislators, although basing their law on Connecticut’s, included in their law a number of what today would be called public interest provisions, such as a deposit requirement,58 and a de facto prohibition on the use of anonymous and pseudonymous designations. The librarian of the University of Cambridge issued certificates of receipt that served as proof of a valid claim. Delaware was the only state that did not pass a copyright law.59

Copyright protection under the colonial statutes was available only to citizens of the United States and only for books or writings that had not been previously published.60 The most common term of protection was 14 years (derived from the Statute of Anne), and was adopted by Connecticut, Georgia, Maryland, New Jersey, New York, North Carolina, Pennsylvania, and South Carolina.61 Three states (Massachusetts, Rhode Island, and Virginia) granted a 21-year period, while New Hampshire granted a 20-year period. Again borrowing from the Statute of Anne, Connecticut, Georgia, Maryland, New Jersey, New York, Pennsylvania, and South Carolina granted an additional renewal term of 14 years.

The subject matter enumerated in the colonial laws varied, although in practice there may have been little difference. South Carolina protected only “books”; New Jersey, New York, Pennsylvania, and Virginia protected “books and pamphlets”; Maryland protected “books and writings”; Massachusetts, New Hampshire, and Rhode Island protected “books, treatises, and other literary works”; and Connecticut and Georgia more expansively protected “books, pamphlets, maps, and charts.”

Connecticut, Georgia, New Jersey, New York, North Carolina, and South Carolina conditioned protection on filing the title of the book with the Secretary of State; Virginia with the clerk of the council; and Pennsylvania “in the prothonotary’s office” in Philadelphia. Maryland and South Carolina required {Page 21} registration of the title not as a prerequisite to protection, but to prevent innocent infringement. The laws in Massachusetts, New Hampshire, and Rhode Island did not contain provisions on registration.

Connecticut, Georgia, New Jersey, New York, North Carolina, Pennsylvania, and Virginia law provided for forfeiture of all infringing copies and a fine of double their value. Penalties of 2 pence per printed sheet were assessed in Maryland, but only 1 pence per printed sheet was assessed in South Carolina. Massachusetts and Rhode Island set a minimum fine of Þbp5 and maximum of Þbp3,000. New Hampshire set a minimum of 5Þbp and a maximum of Þbp1,000. Following the Statute of Anne, the Connecticut, Georgia, New York, North Carolina, and South Carolina statutes contained provisions requiring the author to provide a sufficient number of copies at a “reasonable price.”

In light of the contrary interpretation of the federal statute taken by the Supreme Court in 1834,62 it is interesting to note the strong emphasis on the natural rights of authors contained in the colonial laws. Seven of the statutes having preambles expressly refer to such rights;63 one (New Jersey) referred to “principles of equity.” The New Hampshire preamble is typical:

As the improvement of knowledge, the progress of civilization, and the advancement of human happiness, greatly depend on the efforts of ingenious persons in the various arts and sciences; as the principal encouragement such persons can have to make great and beneficial exertions of this nature, must consist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labour of his mind: Therefore, to encourage the publication of literary productions, honorary and beneficial to the public. . . .64

Few authors, however, took advantage of the colonial statutes. Noah Webster was an exception, and his indefatigable efforts on behalf of his A Grammatical Institute of the English Language during 1785 and 1786 illustrate the practical problems facing an author or publisher under the patchwork of the colonial laws.65 Webster originally granted the publishers Hudson & {Page 22} Goodwin the exclusive right in all the colonies for the first edition of A Grammatical Institute of the English Language. The contract was then renegotiated, with Hudson & Goodwin retaining exclusive rights for the New England states, but conveying back to Webster the exclusive rights for the remaining states. Webster then sold the rights for Georgia, New Jersey, New York, North Carolina, and South Carolina to Samuel Campbell of New York. Campbell had 2,000 copies of the work printed for him by Hudson & Goodwin in Connecticut.

Nathaniel Patten, a Hartford, Connecticut, bookseller, bought 1,500 copies of Webster’s work from Campbell in New York and offered them for sale in Connecticut at a price lower than Hudson & Goodwin’s. Hudson & Goodwin sued Patten in Connecticut for infringement. Patten argued that he had not violated the Connecticut statute since he had acquired lawfully made copies of the book (indeed, they had been printed by Hudson & Goodwin). In 1789, a jury in Hartford County, Connecticut, decided in Hudson & Goodwin’s favor, finding that although the printing occurred in Connecticut, the copies “were for Campbell, and upon his copy right, and to be sold in the state of New-York; it was therefore, the same as though Campbell had printed them, in New-York, on his own right, and the defendant had introduced them [in Connecticut].”66

Next section: The Constitutional Clause

32 Quoted in W. Hening, 2 The Statutes at Large, Being a Collection of All the Laws of Virginia 517.

33 The Library of Congress owns a 1640 edition of this book. This was not the first book printed in the Americas, however. In 1539, Juan Zumarraga printed his Doctrina Breue in Mexico; the Library of Congress also owns a copy of this work.

34 The choice of England appears not to have necessarily been Mrs. Bradstreet’s, but rather her brother-in-law’s, John Woodbridge, who, without her knowledge, took a manuscript collection of her poetry to London and had it printed there. Anne Bradstreet was born in London in 1612, the daughter of Thomas Dudley, the manager of the country estate of the Earl of Lincoln. She was well-educated, and at age 16 she married Simon Bradstreet. The following year, Simon Bradstreet was hired to assist in the founding of the Massachusetts Bay Colony. He later became governor of the Colony. For a collection of Anne Bradstreet’s literature, see Works of Anne Bradstreet (Jeannine Hensley ed. 1967). For a history of women inventors and the patent system in the United States, see A. Macdonald, Feminine Ingenuity: Women and Inventions in America (1992).

35 Members of theMather family were prolific writers, however, and domestic publishers of sermons. Cotton Mather alone is reputed to have written 444 sermons.

36 Wigglesworth’s success enabled him to take a vacation to Bermuda.

37 1 A History of Book Publishing in the United States 46 (1972).

38 At this time, laws were printed at the legislature’s expense.

39 Records of the Governor and Company of the Massachusetts Bay Colony in New England, Part 2, 1661-1674, reprinted in Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright, Copyright Office Bulletin No. 3 at 140 (Revised) (1973).

40 See 1 AHistory of Book Publishing in the United States 25 (1972).

41 See Journal of the Honorable House of Representatives 143 (Boston 1770). The book was the second volume of Billings’ work, The New-England Psalm-Singer.

42 The bill read:

An Act for Granting to William Billings of Boston the Sole privilege of printing and vending a Book by him Composed consisting of a Great variety of Psalm-tunes, Anthems & Cannons in two Vols.

    Whereas the said Wm. Billings has composed a great Number of Psalm-tunes, Anthems and Cannons to which are much used in and esteemed by many of our Churches, and which are daily more and more used and adopted by a Great number of people – which Composition has cost him much pains and application and has also been very expensive to him; – And whereas the said William Billings has supplicated the aid of this Court in this his undertaking – in Order therefore to promote such a laudable performance.

    Be it enacted by the Governour Council & House of Representatives – That the said William Billings be and hereby is impowered solely to print and vend his said Composition consisting of Psalm-tunes, Anthems and Canons and have and receive the whole and only benefit and emolument arising therefrom for and during the full term of seven years from the first Day of August next during which term all persons are hereby strictly prohibited either by himself or any by for or under him, from printing and vending his P. Composition either in whole or in part, and that if any person or persons during said term shall presume to print, vend or barter the same either in whole or in part as aforesaid he or she or they so printing, vending or bartering shall forfeit and pay the sum of Ten pounds for each and every offence and so toties quoties; to be recovered by the said Wm. Billings to and for his use in any Court of Record proper to try the same unless the Person or Persons so printing, vending or bartering his said Composition shall be first impowered by the said William Billings in writing under his hand and seal.

Vol. LVII Massachusetts Archives 600.

43 Journal of the House of Representatives 134 (1772). Billings nevertheless published the second volume in 1778 without protection.

44 The right took the form of the following resolution:

Resolved by this Assembly, that the said memorialist have and free and full liberty and license is hereby granted for the sole printing, publishing and vending the several tunes and anthems abovementioned, to the said memorialist, his heirs, executors, administrators and assigns, for the term of five years next ensuing, strictly forbidding all the subjects of this State to reprint the same and each and every of the said tunes or anthems in the like or any other volume or form whatsoever, or to import, vend, buy, utter or distribute any copies of said tunes or anthems or any of them reprinted beyond the limits of this State during the aforesaid term of five years without the consent or approbation of the said Andrew Law, his heirs, executors, administrators and assigns under his or their hands and seals first had and obtained, as they will answer the contrary at their peril, under the penalty of five hundred pounds, L. money, for each and every such offence together with just damages to be recovered against such offender by the said Andrew Law, his heirs, executors, administrators and assigns; the said Law, his heirs, executors, administrators or assigns printing and furnishing a sufficient number of copies of the said tunes for the use of the inhabitants of this State at reasonable prices.

The Public Records of the State of Connecticut from May 1780 to October 1987, Inclusive 537-38 (1922).

45 See N. Webster, A Collection of Papers on Political, Literary and Moral Subjects 173 (1873) and Gilreath, American Literature, Public Policy, and the Copyright Laws Before 1800, reprinted in Federal Copyright Records 1790-1800 at xv-xxiv (Library of Congress 1987) for accounts of Webster’s efforts to secure copyright protection for his works.

       Webster was not, however, apparently beyond appropriating the works of others. He was accused by H.L. Mencken of being “sufficiently convinced of the merits” of Dilworth’s work “to imitate it, even to the extent of lifting whole passages.” See W. Bryson, The Mother Tongue 154 (1990).

46 All of the colonial statutes are reproduced in Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright, Copyright Office Bulletin No. 3 (Revised)(1973). The Connecticut statute is reproduced id. at 1-3. Connecticut protected the works of authors of the other colonies, provided those colonies passed laws similar to Connecticut’s. Georgia, Maryland, Massachusetts, New Hampshire, New York, North Carolina, Pennsylvania, and Rhode Island also extended reciprocal protection. The Maryland and Pennsylvania statutes had an extra twist on this principle, declaring that their statute did not go into effect unless “all and every of the States” passed similar laws. Id. at 6, 11. Since Delaware did not pass a copyright law, Maryland and Pennsylvania’s copyright laws arguably never went into effect. But cf. Tanselle, Copyright Records and the Bibliographer, 22 Studies in Bibliography 77, 84 (1969) (listing a number of registrations of title under both the Pennsylvania and Maryland statutes). Since Maryland and Pennsylvania passed their laws early on (1783 and 1784, respectively), one might expect they would accept registrations and only later determine, after all the states had had a chance to consider the matter, whether all the states had passed similar laws. Passage of the Constitution on September 17, 1787, with its grant to Congress of the power to provide for a uniform federal statute, and the subsequent enactment of the first federal law on May 31, 1790, rendered Maryland and Pennsylvania’s possible wait-and-see approach moot.

       Nine months after the Connecticut statute went into effect, Robert Ross appears to have received retroactive protection under it. See Public Records of the State of Connecticut for the Years 1783 and 1784 at 245-46 (1943). Noah Webster was the first (and perhaps only) person to sue under the statute. See infra text at note 66.

47 Among the examples given were M’Fingal, by John Trumbull of Connecticut, which had been published in unauthorized, cheap editions containing “typographical errors, bad paper, and a mean letter & an uncouth page.” As a result of this experience, Timothy Dwight of Massachusetts was reluctant to publish his work, The Conquest of Canaan, until protection was established.

48 1 A History of Book Publishing in the United States 138 (1972). See also a 1782 letter Paine sent to Abbe Reynal: “It may, with propriety, be remarked, that in all countries where literature is protected (and it cannot flourish where it is not), the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them at birth.” 1 Political Works of Thomas Paine 4-5 (1817).

49 See Laligant, The French Revolution and Authors’ Rights or Perenniality of the Subject Matter for Protection, 147 Revue Internationale du Droit D’Auteur 2 (1991) and Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 147 Revue Internationale du Droit D’Auteur 125, 154-200 (1991) for a review of the early French statutes.

50 24Journals of the Continental Congress 211 (1783).

51 Id. at 180 (1783).

52 Id. at 180 (1783).

53 Id. at 326 (May 2, 1783).

54 The Continental Congress did not propose a federal Copyright Act since the Articles of Confederation did not authorize the exercise of such power. As discussed below, this power was later given to Congress in Art. I §8, cl.8 of the Constitution.

55 Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright at 1, Copyright Office Bulletin No. 3 (Revised) (1973). As originally drafted, the resolution recommended that rights be secured to “authors, or publishers . . . and to their heirs or assigns,” the underscored passage being deleted in the final version.

56 Id. at 4-5. Connecticut’s statute had, of course, been passed in January 1783.

57 Id. at 5-6.

58 Id. at 16. North Carolina’s law also contained a deposit requirement.

59 The remaining states and dates of enactment are: New Jersey (May 27, 1783); New Hampshire (November 7, 1783); Rhode Island (December 1783); Pennsylvania (March 15, 1784); South Carolina (March 20, 1784); Virginia (October 17, 1785); North Carolina (November 19, 1785); Georgia (February 3, 1786); and New York (April 29, 1786).

60 South Carolina and Virginia provided, however, that protection would be available only if copies of the printed book had not yet been transferred to other persons.

61 The status of and term for unpublished works is unclear. Only Connecticut and New York expressly protected these works, but no term of protection was provided. Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright at 3, 20, Copyright Office Bulletin No. 3 (Revised) (1973).

62 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).

63 Connecticut, Georgia, Massachusetts, New Hampshire, North Carolina, New York, and Rhode Island.

64 Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright at 8, Copyright Office Bulletin No. 3 (Revised) (1973).

65 Webster’s activities included an appearance before the Continental Congress in support of the petitions that the Congress recommend adoption of copyright laws to the states. Webster inserted on the verso of the title page of the 1783 edition of his work what may be the first copyright notice in the United States:

The author, sensible that in works of this kind, many errors will escape the most critical observation, requests his friends to be free in offering him their remarks upon this first edition, and promises to make use of them in correcting errors, supplying defects and retrenching superfluities. The second and third Parts are preparing for the Press, and will be published as soon as they are ready, unless an unfavorable reception of the first should prevent. As the whole will be published under the protection of a law of this State, entitled, “An Act for the encouragement of Literature and Genius,” all printers and Booksellers will take notice of this information, and not incur the penalties of that Statute

There is a sad epilogue to Webster’s story: “Like Samuel Johnson, [Webster] was a better lexicographer than a businessman. Instead of insisting on royalties, he sold the right outright and never gained the sort of wealth that his tireless labors merited. After Webster’s death in 1843, two businessmen from Springfield, Massachusetts, Charles and George Merriam, bought the rights to his dictionaries and employed his son-in-law . . . to prepare a new volume. . . . This volume, the first Merriam-Webster dictionary, appeared in 1847 and was an instant success.” W. Bryson, The Mother Tongue 157 (1990).

66 Hudson & Goodwin v. Patten, 1 Root 133 (Conn. 1789), reproduced in 14 Copyright Decisions 1790-1909 at 1365. See also Patten v. Hudson & Goodwin, 1 Root 172 (Conn. 1790), 14 Copyright Decisions 1790-1909 at 2021 (suit brought by Patten alleging that Hudson & Goodwin were selling copies of Webster’s work at an “exorbitant price” and in insufficient quantities, contrary to the statute).