The Copyright Act of 1909 was the end product of hundreds of years of common and statutory copyright law.
Under copyright law in general, authors or creators of original works have the exclusive right to reproduce (or authorize others to reproduce) those works and are protected against unlawful copying, which is known as plagiarism or piracy. “Original” does not mean “unique.” An original work is one created through the author’s own intellectual or creative effort, as opposed to having been copied. Copying all or part of a work without permission of the author (or any agency the author has authorized for copying) constitutes copyright infringement. Willful unauthorized copying for the purpose of making a profit is a criminal offense punishable by fine or imprisonment. When authors suspect infringement but have no grounds for charging criminal intent, they can bring civil action against alleged offenders. Under certain circumstances, parts of authors’ works can be copied without permission according to what is known as the doctrine of fair use.
Works are protected by copyright for a specific length of time. At the end of that time, a work is said to be in the public domain and can be copied without permission. Ever since the concept of the right to copy was established and codified, copyright has existed under both common and statutory law. Common law is unwritten law, based on tradition and precedent. Statutory law is written law passed by a legislative body, such as Great Britain’s Parliament or the U.S. Congress.
In general, common law protects a work before it is published and statutory law protects it after it is published. In both common and statutory law, it is assumed that what is written or created is property. The creator of a work has sole ownership of the work and the right to dispose of it as he or she would any other type of property; that is, the owner may sell it, lease it, transfer it, or leave it in a will. Upon publication of a work, the author gives up some of the ownership rights granted by common law but is given monetary rewards for doing so. The law is based on two sometimes conflicting principles: Authors should be rewarded for their labors, and knowledge should be made readily available to the public for the good of society as a whole. Much of the history of copyright law is concerned with attempts to reconcile these two principles.
The concept and fundamental issues of copyright date back at least as far as the fifteenth century. With the invention of printing, copies of both ancient and contemporary works began to proliferate and become readily available to the public. Early English copyright law began to address the questions of what should be printed, who ultimately owned the works and for how long, how the owners should be compensated for them, and who should be authorized to copy them.
By the sixteenth century, printing had developed throughout Europe from an unregulated cottage industry of craftsmen to a full-fledged profession and a thriving large-scale industry. Usually, the printers of books were also the vendors of them. In England, the printing and selling of books was done by a monopoly called the Stationers’ Company.
Authors, who had previously been supported by wealthy, interested patrons rather than by sales of their work, could now earn money (although hardly a living wage) apart from patronage by selling their manuscripts to printers, who paid a lump sum for each. It was generally accepted that once a manuscript was sold, the work was no longer the property of the author. Copyright infringement, which frequently consisted of the printing of unauthorized works outside the Stationers’ monopoly, was more an offense against the publisher, or those who licensed the publisher, than against the author.
By the late seventeenth century, the English press was generally liberated from the dictates of the authorities. Censorship had decreased, and licenses to the Stationers’ Company were no longer renewed. Freedom of the press destroyed the Stationers’ monopoly, for now anyone could print virtually anything. An unfettered press also meant a lack of protection for authors from piracy and plagiarism. Literary piracy long had been considered an outrage, if not actually a criminal offense, and was supposed to be prevented by common law, but few means of enforcing common law existed.
Both authors and booksellers pressured Parliament for legislation that would protect authors from piracy and provide booksellers with enough security to allow them to stay in business. In 1710, Parliament responded with the Statute of Anne, named for the reigning queen. The Statute of Anne
Many cases arose in which publishers freely copied works for which the statutory term of protection had expired. When the authors of the works complained that this free copying was a violation of their common-law rights, the English courts decided that once a work had been published and the term of protection had expired, common-law rights no longer applied. This conflict sparked long and heated debates over ownership and the balance between authors’ rights and the public good. Such debates continued through the twentieth century and into the twenty-first.
Limited and controversial as it was, the Statute of Anne became the pattern for all subsequent copyright legislation in both England and the United States. Twelve of the thirteen original U.S. states adopted copyright statutes before the federal Constitution was drawn up. These statutes were summarized in article 1, section 8 of the Constitution, which says: “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 first U.S. copyright law, enacted in 1790, was revised in 1831 and 1879. On March 4, 1909, Congress passed a new copyright law that remained in effect until revisions were made in 1976.
The 1909 law stated that the purpose of copyright is “not primarily for the benefit of the author, but primarily for the benefit of the public.” Although unpublished works were still held to be covered by common law, publication was necessary in order for a work to be covered by statutory law, and an author’s rights under statutory law were substantially different from what they were under common law. Under the 1909 law, there was no general protection of unpublished works. Omission of or serious error in a copyright notice or failure to deposit a copy in the Copyright Office resulted in loss or forfeit of copyright.
The Copyright Office, located in the Library of Congress in Washington, D.C., was established by the 1909 law to keep records and register works. The law outlined procedures for registration of copyright, detailed circumstances of and penalties for infringement, and listed fourteen categories of works that could be copyrighted. It codified the standard of copyrightability of a work as being original by the author and not copied from other work. It also lengthened the duration of copyright to twenty-eight years, renewable for twenty-eight more.
Just as the Statute of Anne had responded to the implications of the new technology of the printing press, so the Copyright Act of 1909 tried to respond to the new technology of the early twentieth century. The law grew out of centuries of political upheaval, factional controversy, technological development, and legislative compromise. As English government swung from monarchy to republic and back to monarchy again up to the early eighteenth century, written work was first strictly censored and then liberated to the point of anarchy. Printing had made works of all kinds widely available, and once the press was liberated in England, the rights of publishers, authors, and the public came into sharp conflict. Some of the conflicts were resolved by the Statute of Anne, which served as a pattern for American copyright law.
In the spirit of the original state laws and the federal copyright law of 1790, the 1909 law stated its purpose as being “primarily for the public,” thus favoring the rights of the public over the rights of authors but allowing for reward to authors in order to encourage them to continue producing. In this way, the law seemed to reconcile the conflicting principles of rewards to creators and the “promotion of progress in science and useful arts” for the common good. By extending the term of copyright coverage, it gave more protection to authors than previous legislation had. It provided no protection, however, for unpublished work, and it tended to supersede common law, given that publication was a necessary condition for copyright. Further, the law did not address the special issues of copyright involved for writers as employees or contractors, such as newspaper reporters and freelance writers, who do what is known as “work for hire.”
The doctrine of fair use,
As technology improved and became more varied, the 1909 law’s provisions became increasingly inadequate. For example, the law’s description of the classes of works that were copyrightable showed that the lawmakers had been concerned largely with works produced using the technology of the printing press. The law protected the “writings” of an author, whereas later law protects “original works of authorship,” thus broadening the definition of “author” and lengthening the list of what can be considered to be authors’ works. Although the 1909 law listed motion pictures and sound recordings among the classes of copyrightable works, it made inadequate provision for the protection of what was disseminated through these new technologies and no provision at all for infringement issues arising from the use of photocopy machines, television, videotape, computers, or cable and satellite communications. Beginning in 1955, several attempts were made to revise U.S. copyright law, but it was not extensively revised until 1976 (effective in 1978).
The most significant impact of the Copyright Act of 1909 on the writing and publishing world and on society in general, as beneficiary of authors’ work, came from the fact that it was specific, whereas prior legislation had been general. By establishing a Copyright Office, listing the kinds of works that could be copyrighted, and outlining how they could be protected, the law sought to resolve the ongoing conflict between rewarding creators and benefiting their audiences. This issue persisted, however, becoming only more complicated with the globalization of information and information technology in the early twenty-first century. The perceived need to elevate copyright law to the international level was evidenced by the establishment in 1961 of the World Intellectual Property Organization, a specialized United Nations agency and the successor to the Berne Convention International Bureau, which, in turn, had its roots in the 1886 Berne Conference for the Protection of Literary and Artistic Works.
-
Bettig, Ronald V. “Critical Perspectives on the History and Philosophy of Copyright.” In Copyrighting Culture: The Political Economy of Intellectual Property. Boulder, Colo.: Westview Press, 1996. Presents the history of copyright in the United States as an introduction to an analysis of copyright from a political and cultural point of view. -
Bunnin, Brad, and Peter Beren. “What Is Copyright?” In The Writer’s Legal Companion: The Complete Handbook for the Working Writer. 3d ed. Reading, Mass.: Addison-Wesley, 1998. Practical legal advice for writers concerning copyright. Compares the constitutional foundation of copyright with current law and compares the 1909 and 1978 laws in outline form. -
Dible, Donald M., ed. What Everybody Should Know About Patents, Trademarks, and Copyrights. Fairfield, Calif.: Entrepreneur Press, 1978. Provides historical background on copyright law and practical guidelines regarding what copyright is and how it is obtained. Includes the full text of the 1978 law. -
Goldfarb, Ronald L., and Gail E. Ross. “What Every Writer Should Know About Copyright.” In The Writer’s Lawyer. New York: Times Books, 1989. Contains only brief historical background to copyright but provides important information on later developments in copyright law. -
Johnston, Donald F. Copyright Handbook. 2d ed. New York: R. R. Bowker, 1982. Describes and interprets every element of copyright law in detail. Includes the full text of both the 1909 and the 1978 laws. -
Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia University Press, 1967. Three lectures analyzing judicial decisions regarding copyright issues from the fifteenth century through the 1960’s. -
Wincor, Richard, and Irving Mandell. “Historical Background: Copyright Law.” In Copyright, Patents, and Trademarks. Dobbs Ferry, N.Y.: Oceana, 1980. A concise, thorough, and extremely readable history of copyright from its origins to the status of the law in the 1970’s.
ASCAP Forms to Protect Writers and Publishers of Music
Carlson and Kornei Make the First Xerographic Photocopy