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Legal History on "Natural" vs. Statutory Exclusive Rights

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  • 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
    Message 1 of 1 , Oct 24, 2002
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      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 digital restrictions
      management 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.


      --

      DRM is Theft! We are the Stakeholders!

      New Yorkers for Fair Use
      http://www.nyfairuse.org

      [CC] Counter-copyright:
      http://cyber.law.harvard.edu/cc/cc.html

      I reserve no rights restricting copying, modification or
      distribution of this incidentally recorded communication.
      Original authorship should be attributed reasonably, but
      only so far as such an expectation might hold for usual
      practice in ordinary social discourse to which one holds no
      claim of exclusive rights.
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