Legal History on "Natural" and Moral vs. Statutory Exclusive Rights

[Seth Johnson]

In the struggle of authors and other creators versus
publishers and other old world "content distribution"
industries, the creators' side takes recourse on many
occasions to the notion of "moral rights" as found in the
Civil Code tradition associated with France.  The content
industries are perfectly glad to hear this argument being
aired by creators, because the notion of "moral rights"
plays a major part in how they seek to justify restrictions
on information technology.  They use the notion of a moral
"right of integrity" to rationalize content control
schemes.  This is precisely what the recently passed WIPO
Performances and Phonograms Treaty does -- it is a DMCA-plus
treaty, adding DRM policy to anticircumvention.

The detailed legal history in the text at the following link
is by a very honest representative of the Civil Code
tradition.  He is partial to the idea that:

. . . intellectual property is, after all, the only absolute
possession in the world . . .  The man who brings out of
nothingness some child of his thought has rights therein
which cannot belong to any other sort of property . . .
(Chaffe 1945).

However, in this text he explains very lucidly how this is
an utter myth in the legal tradition.  Below I have pasted
the segment from his section on the American exclusive
rights legal history, which explains how American
jurisprudence disavows the idea of natural rights of
authors, and why the American legal tradition is
inconsistent with the notion of moral rights.

The whole text is very much worth reading, for its
historical analysis and the way it explains the breakdown
between trade regulation and natural rights concepts of
exclusive rights.  What's really interesting about it is how
close it comes to confronting the interest of the free
citizen while it lays out this analysis.  Chartrand's
purpose is to appeal for the Civil Code tradition to gain
sway (in his conclusion, he calls the United State's signing
of the Berne Convention, with its moral rights provisions, a
"trojan horse for creators").  He presents this as a means
of supposedly guarding the public interest as opposed to the
interests of the media conglomerates.

However, digital information technology presents entirely
different conditions, and creates products of an entirely
different sort from those to which "moral rights" have
traditionally been applied, and a right to the "integrity"
of a work for creators doesn't settle well in the digital
context, if it is used to violate the fact/expression
dichotomy through measures like anticircumvention and DRM
laws.  The American/English tradition is suited to
recognizing the intrinsic freedom of information per se, and
provides for flexible use of information regardless of where
it comes from.  This text actually makes clear where we
stand and brings us close to confronting the fact that in
the digital age, citizens in a free society have more
fundamental rights than those of either publishers or
creators.

Seth Johnson


> http://www.culturaleconomics.atfreeweb.com/cpu.htm

COPYRIGHT C.P.U.

Creators, Proprietors & Users

by Harry Hillman Chartrand

(Selection on the American legal tradition:)

(vii) The American Revolution

In 1672 Massachusetts introduced the first copyright law in
what was to become the United States of America when it
prohibited the making of reprints without the consent of the
owner of the copy.  As in England, copyright was granted to
the printer, not the Creator.  Thus the printer John Usher
received the first copyright in America granting him the
sole right and privilege of publishing the laws of
Massachusetts.

Licensing laws were, however, in effect in Massachusetts
from 1662 until the 1720s.  As with the Monarch and
Parliament in England, both the governor and legislature of
the colony were quick to take offense at publications that
they considered disagreeable, and there were sporadic
prosecutions for seditious libel, beginning with William
Bradford in 1692 and continuing until the Revolution
(Duniway 1906).

While there were Licensing Acts in most of the other
colonies, before the 1780s only Massachusetts had a formal
copyright statute.  There are three reasons:

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 the 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.  (Shirata 1999)

A year before the House of Lords made its decision on
Donaldson v. Beckett, the Boston Tea Party marked the
beginning of the American Revolution.  Between 1773 and 1783
the United States was at war with Great Britain and there
was no trade between the two – including in law books and
legal decisions.

Accordingly, the last major copyright decision of the
British courts current in legal circles of what was becoming
the United States was Millar v. Taylor of 1769.  The
majority opinion penned by Justice Mansfield in the Millar
case - that there was a ‘natural’ author’s copyright - held
sway unqualified by the subsequent decision of the House of
Lords in Donaldson v. Beckett.

As the revolutionary war played itself out the publishing
industry in the colonies increasingly turned towards
American authors.  However, the trade courtesy that
protected printer/publishers afforded no protection to
Creators. Some authors began to lobby for ‘copyright’
protection confusing ‘author’s rights’ with the traditional
copyright granted to publishers. In response to a petition
from poet Joel Barlow, the Continental 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 exclusive
right of printing, publishing 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.
(Journal of the Continental Congress May 2, 1783).

The States responded (Shirata 1999: Table 1).  What is
surprising given the status of Millar v. Taylor, is that
excepting three States, all adopted ‘trade-regulating’
copyright statutes similar to the Statute of Queen Anne. 
The likely reason being that the various States like:

The framers of the United States Constitution, suspicious of
all monopolies to begin with, knew the history of the
copyright as a tool of censorship and press control.  They
wanted to assure that copyright was not used as a means of
oppression and censorship in the United States.  (Loren
1999)

This consuming fear of monopoly and censorship is captured
in the words of Thomas Jefferson:

"I have sworn upon the altar of God, eternal hostility
against every form of tyranny over the mind of man." Letter
to Dr. Benjamin Rush ,September 23, 1800. (Thomas Jefferson
Online Resources, ME 10:173)

And, with respect to the copyright monopoly and the 1774
reasoning of Chief Justice Mansfield in Millar v. Taylor,

Thomas Jefferson, in 1788, exclaimed: “I hold it essential
in America to forbid that any English decision which has
happened since the accession of Lord Mansfield to the bench,
should ever be cited in a court; because, though there have
come many good ones from him, yet there is so much sly
poison instilled into a great part of them, that it is
better to proscribe the whole.” (Commons 1924: 276)

Four years after the Continental Congress called on the
States to introduce copyright the US Constitution was
adopted in 1787 and was ratified a year later in 1788. 
Article I, Section 8 of the Constitution is now known as the
“Intellectual Property or Copyright Clause” and states:

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;

The importance of the clause is evidenced by the fact that
the power to promote ‘progress’ was one of very few powers
to regulate commerce initially granted to Congress.  Two
years after ratification of the US Constitution, Congress
passed the first Copyright Act of 1790: An Act for the
Encouragement of Learning, by securing the Copies of Maps,
Charts and Books, to the Authors and Proprietors of such
Copies, during the Times therein mentioned.

The state copyright statutes, most of which were enacted in
response to the Continental Congress Resolution, were
modeled on the Statute of Anne and thus presaged the
inevitable.  The federal copyright was to be a direct
descendant of its English counterpart. The language in the
United States Copyright Clause was almost surely taken from
the title of the Statute of Anne of 1710; the American
Copyright Act of 1790 is a copy of the English Act; and the
United States Supreme Court in its first copyright case,
Wheaton v. Peters, used Donaldson v. Beckett as guiding
precedent in confirming copyright as the grant of a limited
statutory monopoly. (Patterson 1993)

Inclusion of a ‘monopoly-granting’ power in the Constitution
and the Copyright Act of 1790 involved great debate and
deliberation particularly between Thomas Jefferson, who
initially opposed all monopolies including copyright, and
James Madison who proposed its benefits and inclusion.

In this debate Madison played both sides of the fence,
supporting natural or common law rights for Creators on the
one hand, and promoting regulation and limitation of the
publishing industry through statute on the other. His
apparently contradictory opinions are expressed in his
correspondence with Jefferson and in the Federalist papers.

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. (Shirata 1999)

The result was a bifocal vision of copyright in the United
States.  On the one hand, the Constitution and Copyright Act
adopted the traditional English idea of copyright as trade
regulation to limit the monopoly and censorship powers of
the publishing industry and its duration thereby creating a
‘public domain’. On the other hand, lawyers and academics
advocated a common law copyright derived from ‘natural law’
arguing that the Constitution and Copyright Act merely gave
it written form.

The issue came to a head in the first major American
copyright case - Wheaton v. Peters in 1834. As in the
earlier British case of Donaldson vs. Beckett of 1774, the
waters had been thoroughly clouded.  While there had never
been a Common Law author’s copyright, only a printer’s
copyright, both cases turned on the issue of an assumed
common law rights of authors in works prior to the Copyright
Act of 1710 and 1790, respectively.  The questions facing
the court became, in effect: was the Act intended to give
additional rights to the author or to replace common law
rights, and if there was a common law perpetual copyright,
did it continue in Britain after the Statute of Queen Anne
and in the United States after Revolution?

Loosed from its historic moorings, copyright took on a life
of its own for the vague purpose of stopping illegal
copying, and ultimately, came to be viewed as part of the
law protecting "intellectual property." (Mead 1999)

The Federal Supreme Court concluded there was no common law
copyright and that statutory protection could only be
obtained by adhering to the 1790 Act.  It also confirmed
that copyright was a privilege, not a right.  In its
opinion, the case was about protection against monopoly and
accepted the English precedent for the United States. In the
process, however, the Court also rejected what later became
known as the “moral” rights of authors.

Beyond the ‘natural’ vs. ‘positive’ law, the first US
Copyright Act also involved at least five significant
expansions of the copyright concept.  First, protection was
extended to maps and charts as well as books.  The Statute
of Queen Anne only protected books.  While related, the cost
structure of the two industries are arguable quite
different. Initial extension of copyright protection was
followed in 1802 to include “engravings, etchings and
prints”, in 1831 “music and cuts” and, by 1870, works
eligible for copyright protection included:

Any citizen of the United States, or resident therein, who
shall be the author, inventor, designer, or proprietor of
any book, map, chart, dramatic or musical composition,
engraving, cut, print, or photograph or negative thereof, or
of a painting, drawing, chromo, statue, statuary, and of
models or designs intended to be perfected as works of the
fine arts, shall ... have the sole liberty of printing,
reprinting, publishing, completing, copying, executing,
finishing, and vending the same; and in the case of a
dramatic composition, of publicly performing or representing
it, or causing it to be performed or represented by others;
and authors may reserve the right to dramatize or to
translate their own works. (41st Cong. Sess. 2 Ch.230 Sec.
86,1870)

Subsequent copyright acts extended protection to broadcasts,
motion pictures and software programs.  In this way the
Copyright Act of 1790:

. . . stands as the point of divorce between the perceived
purposes (which became the protection of authors and
publishers) and the methodology of the law (which remained
to protect a movable-type based printing industry).  The
understood goal of the law was set adrift from the actual
workings of the law. (Mead 1999)

Second, the language of the 1790 Act represented an apparent
if not actual change in philosophy, if not practice:

Whereas, the Copyright Statute of 1709 clearly recognized
that the protection was for the benefit of the publishers,
with what we would now call a "trickle down effect" to the
authors; the U.S. acts uniformly talk about the protection
as being primarily for the benefit of the author and only
benefiting the publisher as an assignee.  But, again, this
occurs without any change in how the law worked to benefit
the publisher rather than the author. (Mead 1999)

Proprietors, due to the Anglo-American legal fiction that
corporate entities (‘legal persons)’ have the same rights as
individual human beings (‘natural persons’), could, however,
continue to claim copyright in their own right.  
Furthermore, another peculiarity of the Anglo-American
copyright tradition is that copyright to a work created by
an employee or under commission belongs to the employer and
neither economic nor moral rights attach to the actual
author employee.

Third, while language and philosophy may have changed, the
financial position of printers and publishers was in fact
enhanced. Copyright protection was initially available only
to US citizens or residents.

The first national copyright law, passed in 1790, provided
for a 14-year copyright ... but only for authors who were
citizens or residents of the US. The US extended the
copyright term to 28 years in 1831, but again restricted
copyright protection only to citizens and residents.

This policy was unique among developed nations. Denmark,
Prussia, England, France, and Belgium all had laws
respecting the rights of foreign authors. By 1850, only the
US, Russia and the Ottoman Empire refused to recognize
international copyright.

The advantages of this policy to the US were quite
significant: they had a public hungry for books, and a
publishing industry happy to publish them.  And a ready
supply was available from England.  Publishing in the US was
virtually a no-risk enterprise: whatever sold well in
England was likely to do well in the US.

American publishers paid agents in England to acquire
popular works, which were then rushed to the US and set in
type.  Competition was intense, and the first to publish had
an advantage of only days before they themselves were
subject to copying.  Intense competition leads to low
prices. In 1843 Dickens's Christmas Carol sold for six cents
in the US and $2.50 in England. (Varian 1998)

It was not until passage of the International Copyright Act
(known as the Chace Act) in 1891 that the United States
accorded foreign authors equal treatment if the author's
country of citizenship accorded reciprocal protections to
the works of American authors.  However, special benefits
continued to flow to American printers because of the
longest-lived U.S. non-tariff trade barrier in history – the
"manufacturing clause" of U.S. copyright law (Boyd 1991).

The Chace Act restricted the import of foreign-printed books
by denying U.S. copyright protection to, at first, works by
all English-language authors, and then to American authors
unless their work was printed in the US. It was through this
provision, for example, that the works of Henry Miller
including the Tropic of Cancer and Tropic of Capricorn were
kept out of the United States because only a French printer
could be found to publish them.  This restriction on
granting copyright to works by American authors printed
abroad was not removed until 1984.

Fourth, another hotly debated issue during the drafting
stage of both the Copyright Clause of the Constitution and
Copyright Act of 1790 was the duration of copyright. 
Initially duration was to be based on the average life span
of authors. Thus under the Copyright Act of 1790, the
duration of copyright was set at 14 years with the
possibility of renewal for another 14 years if the author
was still alive.  Thomas Jefferson based a proposed term for
copyright on the principle that "the earth belongs in
usufruct to the living", and computed it by means of
actuarial tables:

Generations, changing daily by daily deaths and births, have
one constant term, beginning at the date of their contract,
and ending when a majority of those of full age at that date
shall be dead. The length of that term may be estimated from
tables of mortality [and is found to be] 18 years 8 months,
or say 19 years as the nearest integral number...  The
principle, that the earth belongs to the living, and not to
the dead, is of very extensive application... Turn this
subject in your mind, my dear Sir... and develop it with
that perspicuity and cogent logic so peculiarly yours... 
Establish the principle... in the new law to be passed for
protecting copyrights and new inventions, by securing the
exclusive right for 19 instead of 14 years. (Jefferson,
Letter to James Madison, September 6, 1789)

However, the term was extended in 1831 to 28 years with the
possibility of renewal for another 14 years.  In 1909, it
was extended again to 28 years with the possibility of
renewal for another 28 years.  In 1976 duration became the
author’s life plus 50 years.  With accession by the United
States to the Berne Convention in 1986, the duration of
American copyright is now the author’s life plus 75 years. 
Put another way, assuming 20 years per generation, American
copyright now extends over four generations – a long
distance from Jefferson’s limited monopoly based on the
principle "the earth belongs in usufruct to the living". 
Some observers argue that the term of copyright now, in
effect, approaches the ‘perpetual copyright’ enjoyed by the
Stationers’ Company before 1710.

The extension of the renewal term of copyright 
 is
unconstitutional because (1) it is motivated by a desire to
establish perpetual copyright; (2) it provides nothing to
authors (most of the authors being dead); (3) it does
nothing to encourage the arts 
 ; (4) its effect will be to
discourage the arts by preventing the timely entrance of
works into the public domain; and (5) it exceeds any
reasonable interpretation of the constitutional requirement
of "limited times." The Constitution's framers, though
suspicious of monopoly, considered copyright to be a
bearable monopoly only because the term was to be limited;
the expiration of copyright was considered indispensable for
copyright's proper functioning.  The U.S. Supreme Court for
the most part has adhered to the framers' view.  The
extension of the term of copyright to 95 years, however,
overthrows the constitutional foundations of copyright law.
(Phillips 1998)

Fifth, and finally, three words sum up the US rationale for
granting copyright: progress, learning & knowledge.  All
three relate to the public domain and thereby to the third
party in the copyright equation: the User.

With respect to ‘progress’, Article I, Section 8 of the
Constitution gives Congress the power to “
 promote the
Progress of 
 useful arts, by securing for limited Times to
Authors 
 the exclusive Right to their respective Writings

”.  Such time limited rights are explicitly made available
only to ‘authors’.  The purpose of such rights is to promote
the progress of the arts.  This requires works be accessible
to the public, that is, to Users.  Thus such works are to
become freely available to Users after the ‘limited’ time
has passed, that is, they should enter the public domain.

With respect to ‘learning’, the Copyright Act of 1790 is
entitled: An Act for the Encouragement of Learning, by
securing the Copies of Maps, Charts and Books, to the
Authors and Proprietors of such Copies, during the Times
therein mentioned.  Derived from the title to the Statute of
Queen Anne, the US Copyright Act justifies ‘securing the
Copies’ as an encouragement for learning among the people,
that is, Users.

The importance of ‘learning’ lead to the ‘Fair Use’ clause
of the Copyright Act limiting the copyright monopoly even
during its limited duration.  In the simplest terms, this
means: nonprofit copying is fair use. This provision allows
public libraries, educational institutions and individuals
to copy works without paying royalties to Proprietors and
still avoid the charge of ‘copyright infringement’.

By contrast in Canada (following the British tradition), the
corresponding provision is ‘fair dealing’.  In the simplest
terms, this means copying a work, without payment of
royalties to its Proprietor, constitutes an infringement
except under extremely tightly defined conditions. For
example, under current provisions of the Canadian Copyright
Act, a public or educational library is required to assure
itself that a patron is engaged in bona fide 'research and
private study' before making photocopies available to him or
her and to thereby obtain a 'fair dealing' exception to
copyright infringement.  Similarly, under the Canadian Act
the only way a teacher can copy a work for classroom use
without infringing copyright is to hand copy on an erasable
surface.  With passage of the Millennium Digital Copyright
Act by the US Congress, however, it appears that the 'fair
dealing' concept is beginning to slip into American
copyright law.

Furthermore, unlike the title to the Statute of Queen Anne
and Article 1, Section 8 of the US Constitution, the
American Copyright Act of 1790 explicitly recognizes that
copyright may be held by ‘Proprietors’, not just ‘Authors’.
It is by this device that ‘moral rights’ of a Creator have
been effectively extinguished by the American courts.  It is
also by this device that the media empires of the 20th and
21st centuries, worthy successors to the Stationer’s
Company, have arisen.

With respect to ‘knowledge’, President George Washington
said in his message to Congress leading to enactment of the
1790 Copyright Act: "Knowledge is, in every country, the
surest basis of public happiness." (Washington 1790). Thus
long before the concept of a ‘knowledge-based economy’,
knowledge was recognized by the Founding Fathers of the
American Republic as intrinsically valuable to the public
good. The Copyright Act was a device intended to minimize
monopoly, foster learning and increase the knowledge of the
people and thereby raise the level of happiness in America. 
Such public happiness, however, is reduced to the extent
that copyright usurps the public domain beyond its
constitutional limits (Patterson 1993).

This was the state of copyright law in the United States
when the French Revolution was but a year old.

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