COPYRIGHT, THE LEGAL ISSUES OF
Copyright is the legal mechanism by which authors are
given control over the reproduction of their intellectual
creations. Most legal issues that arise in current copyright
disputes fall into three broad categories: subject matter (is
something protected by copyright?); ownership (who owns
the rights?); and infringement (do certain activities violate
the rights of the copyright owner?).
These three issues, though legally distinct, have had connections throughout the history of copyright. The scope of
subject matter covered by copyright and the type of activities
that constitute infringement have both expanded over time.
Originally, copyright protected only books, whereas today
its coverage includes newspapers, music, movies, plays,
paintings, choreographed dances, architecture, boat hull
designs, and semiconductor chips. In addition, the original
conception of copyright was as a trade privilege consisting
of a single right, the “right” to make a “copy”; and that too
has expanded, with the law now providing copyright owners
not only the right to copy, but also the right to make what
the law refers to as “derivative” works (about which more
later), and the right to display and/or perform one’s works
publicly. Much of this expansion occurred because important economic interests demanded it. But, the expansion has
also been intertwined with ownership issues and, in particular, with an ideological change from viewing copyright as a
publisher’s right to viewing it as an author’s right.
Like many aspects of American law, American copyright law derives from English law. Anglo-American copyright law is conventionally treated as having begun with
the 1710 Statute of Anne, but the notion of copyright as a
means of controlling the reproduction of texts dates back
to regulations of the book trade in the early sixteenth century. With its roots primarily in what was known as the
“stationer’s copyright,” the pre-eighteenth century copyright belonged to printers and publishers, not authors. The
stationer’s copyright was a right recognized among members of the Stationers’ Company, a trade group consisting
of bookbinders, publishers, and printers. As a legal matter,
the stationer’s copyright was simply an internal regulation
within the publishing industry, but it invariably amounted to
an exclusive right to print a book because, under the licensing regime in effect at the time, the right to use a printing
press was restricted primarily to members of the Stationers’
Company.
The 1710 Statute of Anne was similarly designed primarily as a means of regulating the book trade. Though the
Statute of Anne did for the first time establish a broadly
available government-granted copyright, the principal
changes from the stationer’s copyright were designed primarily to loosen the Stationers’ monopolies in the book
industry rather than to grant rights to authors.
By the end of the eighteenth century, however, copyright
was increasingly conceived of as an author’s right. This ideological assumption about initial copyright ownership was
taken up by the drafters of the first state copyright statutes
during the Confederation period and then by the framers
of the United States Constitution in 1787. The Constitution
empowers Congress to “promote the Progress of Science
and useful Arts, by securing for limited Times to Authors
… the exclusive Right to their … Writings.” Publishers were
not even mentioned, and the constitutional language incorporated the now-common utilitarian rationale that exclusive
rights will induce authors to create works for the promotion
of the public good.
Still, the author-centered approach had virtually no
impact on the breadth of legal rights until well into the nineteenth century. The first federal copyright law, passed in
1790, provided only the exclusive right to “print[], reprint[],
publish[] [and] vend[],” rights which were all provided by
the Statute of Anne and the stationer’s copyright before it.
It was only during the nineteenth century that copyright
developed into protection for the intellectual “work” rather
than simply the text of a book.
Key to this expansion was what the law today calls the
right to make “derivative works.” One important figure in
this transformation was Harriet Beecher Stowe: Stowe lost
a seminal 1853 case based on an unauthorized German
translation of her bestseller Uncle Tom’s Cabin. Around the
same time, numerous theatres produced plays based on the
book, all without Stowe’s permission or compensation. In
1870, Congress responded to these inequities by granting
literary authors new rights, including a right of translation
and a “right to dramatize.” These changes would not have
made sense under the seventeenth- and eighteenth-century
conception of copyright as a book publisher’s privilege to
print a text, but once the focus shifted to an author’s right
in her intellectual “work,” denying a novelist the right to
compensation for a translation or dramatization of her book
seemed unjust.
Similarly, the fair use doctrine, which is today celebrated
as one of the principal safeguards against unbridled copyright protection, initially developed as a means to expand,
rather than contract, copyright. When copyright meant
only a publisher’s right to print a specific text, fair use was
unnecessary. It was clear that everything except an exact
printing of the copyrighted book was permitted. But once it
became the intellectual work that the law protected, questions arose as to the legality of creating an abridgement of a
work. It was in this context that courts in the middle of the
nineteenth century developed fair use to determine when
an abridgement of a particular work constituted copyright
infringement.
During the twentieth century, Congress changed copyright law numerous times, including two major revisions,
in 1909 and 1976. As copyright law became important to
an increasing number of industries, these changes incorporated compromises among various interest groups affected
by the law, from satellite television providers to semiconductor producers, from public libraries to the construction
industry, from vessel hull manufacturers to ballet companies. What began as a book trade privilege has grown to
become the means of legal protection for vast segments of
our economy, covering virtually anything that can be characterized as an intellectual work.
Further Reading
Abrams, Howard B. “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright.”
Wayne Law Review 29 (1983): 1119–1191.
Bracha, Oren. Owning Ideas. S.J.D. Thesis, Harvard University,
2005.
Bugbee, Bruce W., Genesis of American Patent and Copyright
Law. Washington, D.C.: Public Affairs, 1967.
Feather, John. Publishing, Piracy and Politics: An Historical
Study of Copyright in Britain. London: Mansell Publ’g Ltd.,
1994.
Ginsburg, Jane C. “A Tale of Two Copyrights: Literary Property
in Revolutionary France and America.” Tulane Law Review
64 (1990): 991–1023.
Goldstein, Paul. Copyright’s Highway: The Law and Lore of
Copyright from Gutenberg to the Celestial Jukebox. Stanford, CA: Stanford University Press, 2003.
Kaplan, Benjamin, An Unhurried View of Copyright. New York:
Columbia University Press, 1967.
Litman, Jessica. “Copyright Legislation and Technological
Change.” Oregon Law Review 68 (1987): 275–361.
Patterson, Lyman Ray. Copyright in Historical Perspective. Nashville, TN: Vanderbilt University Press, 1968.
Rose, Mark. Authors and Owners: The Invention of Copyright.
Cambridge, MA: Harvard University Press, 1993.
Samuels, Edward. The Illustrated Story of Copyright. New York:
St. Martin’s Press, 2000.
Sherman, Brad, and Strowel, Alain. Of Authors and Origins:
Essays on Copyright Law. Oxford: Clarendon Press, 1994.
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of
Intellectual Property and How It Threatens Creativity. New
York: N.Y.U. Press, 2001.
Walterscheid, Edward C.. The Nature of the Intellectual Property Clause: A Study in Historical Perspective. Buffalo, NY:
William S. Hein & Co., Inc., 2002.
Woodmansee, Martha, and Peter Jaszi, eds. The Construction of
Authorship: Textual Appropriation in Law and Literature.
Durham, NC: Duke University Press, 1994.
Anuj C. Desai