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Chapter 1
HISTORY AND BACKGROUND
Copyright is the law of literary and artistic property. It regulates
the ownership and exercise of rights in creative works. The basic
purpose of U.S. copyright is to enrich our society’s wealth of culture
and information. The means for doing so is to grant exclusive rights
in the exploitation and marketing of a work as an incentive to those
who create it. The Founding Fathers phrased this more elegantly—
and provided the constitutional source for Congress’s power to enact
copyright laws—in Article I, section 8, clause 8 of the Constitution:
“The Congress shall have power . . . To promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries.” This provision is both a source of and a limitation on
Congress’s power to enact copyright and patent statutes. It
recognizes both the general public interest in fostering creativity, and
the individual rights of creators—for limited times—over the fruits
of their intellectual labors. The Framers perceived, as James
Madison urged in Federalist 43, that “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.”
Further examination of the copyright clause yields themes that
recur throughout copyright law, and inform this book. Copyright may
also call into play other parts of the constitution as well, notably the
supremacy clause and the First Amendment, and we wil l consider
those issues in due course. For now, however, we highlight the
framework questions that emerge from the copyright clause. Does the
opening phrase “to promote the progress of science” state a general
aspiration for a copyright system, or does it constrain Congress’
power by authorizing only laws which result in the advancement of
learning? How would a court judge what kinds of legislative
measures are consistent with that objective? Must Congress’s
measures provide incentives to create new works? To disseminate
works, new or old? If the aim to progress does not generally cabin the
content of copyright laws, is that goal relevant to the determination
whether any particular author, work or category of work may enjoy
a copyright? (Are assessments whether copyright afforded an
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HISTORY AND BACKGROUND
Ch. 1
incentive to creation, or whether a work promotes knowledge, any
less elusive when applied to individual authors or works rather than
to the copyright system as a whole?) Does the promotion of progress
play a role in the evaluation of defenses to copyright infringement?
Does the promotion of progress furnish the sole rationale for
copyright protection in the U.S .? If not the only justification, the
dominant one?
Pursuing the inquiry past the preamble, what does “limited
times” mean? The phrase appears to envision a public domain free of
proprietary claims, but how “limited” in time is the period of
proprietorship, and how immutable is the public domain? The clause
empowers Congress to “secur[e]” authors’ exclusive rights; does the
term imply the reinforcement of a pre-existing right arising out of the
act of creation? Did the Framers thus assume the existence of an
author’s natural property right in the fruits of his intellectual labor?
And who is an “author?” The work’s human creator? The person or
entity who hired the human creator? The person or entity who
purchased or operated the machine or device that generated the
work? The rights Congress has power to secure are “exclusive;” does
Congress therefore lack power to substitute in whole or in part a
system of remuneration which would compensate authors but deny
them the control over their works that exclusive rights afford?
Finally, what is a “writing?” Does the term imply that the work must
exist in some material form before a federal copyright law may cover
it? Does the term exclude certain kinds of works from the subject
matter of copyright? Does the term, standing alone or in conjunction
with “authors,” imply any threshold of creativity, quality or purpose
to the work?
I. The Copyright Statutes
A. British Antecedents and the 1790 Act
U.S. copyright law traces its source to British censorship laws of
the sixteenth century. Following the invention of printing, a system
of printing privileges, paired with government control over the
content of the works, developed in many European States,
particularly in Venice, the Papal States, and France. The governing
authority, having verified the work’s political and religious
orthodoxy, granted the petitioner, usually a printer-bookseller, but
sometimes the work’s author, a time-limited monopoly over the
printing, selling, and importation of copies of the work.
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England
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On printing privileges see, e.g., Elizabeth Armstrong, BEFORE COPYRIGHT:
THE FRENCH BOOK-PRIVILEGE SYSTEM 1498–1526 (Cambridge University Press, 1990));
Jane C. Ginsburg, Proto-property in Literary and Artistic Works: Sixteenth-Century
Papal Printing Privileges, 36 COLUM. J. L. & THE ARTS 345 (2013)); Rudolph Hirsch,
