Copyright and the Historical Record

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From Copyhype:

Lawyers rely on history a lot in practice. Common law itself is built on history—we rely on precedent—and when we are interpreting statutory and constitutional provisions, we’ll often turn to history to find insights and help us guide our interpretation.

But, of course, there’s always a danger with using history. Someone who’s trying to make a point may try to find evidence in the historical record to support that point, so there’s a danger of abuse. And perhaps there’s no period more prone to this type of myth and mischief then the Founding period, the period beginning after the end of the Revolutionary War, through the drafting and ratification of the Constitution, and through the first Congress. Because this is when the Constitution was drafted, so a lot of people discussing hot-button topics will try to look at the historical record from the Founding era to find some support for the positions that they are advancing.

And that’s true for copyright law as well, because the constitution does authorize Congress to enact copyright legislation—as well as patent legislation in the same clause, but I’ll be focusing here on copyright (though there is some overlap).

One of the unfortunate trends that a few people have observed is that supporters of a more minimalist copyright, of drawing back the current scope of copyright protection and enforcement, have been trying to advance this narrative that the Founding Fathers would be appalled if they looked at copyright law today, that they intended something completely different from what we see in the statute and in practice.

For example, a few years ago the Electronic Frontier Foundation wrote an article in response to some comments, saying, “Don’t be so sure you’ve got the Founders on your side.” They said, “We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.”

Instead they advance this alternate narrative, which goes something like this: the Founders conceived copyright for a very narrow utilitarian purpose; authors’ interests aren’t at the central part of this equation; and they are only given protections begrudgingly through a narrow government privilege in order to advance this narrow utilitarian purpose.

The problem is when I look at the historical record that we have in front of us, I don’t see a lot of evidence for this view. Instead, I see evidence for something different about what the Founders intended.

Very briefly, I think it’s good to get some context of the timeline we’re looking at here before delving into the details. The Revolutionary War ends, and the Continental Congress is put together. Around the early 1780s, a number of authors started asking the states to pass copyright legislation. Chief among them was Noah Webster, whose dictionary bears his name, and he was lobbying a number of state legislatures to pass copyright legislation, along with others like John Ledyard, who petitioned the Connecticut General Assembly. In 1783, Connecticut was the first of the states to pass its own copyright legislation.

. . . .

That brings us to the drafting of the Constitution. By August 6 during the Constitutional Convention, there was a first draft. It did not mention copyright or patent law in it, but in the middle of August, James Madison proposed that Congress does have the power to pass copyright and patent legislation, and that was added without debate—or without controversy—and sent to the Committee on Style, which came up with the language that we see today in Article I, Section 8, Clause 8.

So why did they include copyright? Why did the Founding Fathers think copyright was important enough both at the state level and eventually to be given to the federal congress in order to enact? I think we could get some idea if we turn to the proponents who were pushing for copyright. When Noah Webster wrote a letter to one of the Connecticut representatives in favor of passing copyright legislation, he said, “America must be as independent in literature as in politics, and as famous for arts as for arms.” In the same fashion, Joel Barlow, when he wrote to the delegates of the Confederate Congress, said, “America has convinced the world of her importance in a political and military line by the wisdom energy and ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character. And she ought to encourage that variety and independence of genius in which she is not excelled by any nation in Europe.”

So they thought this was important for the country as a whole, to complete its national character, and set it on equal stage among its international brethren.

. . . .

So the idea was that we’ll give property rights to authors, we’ll create a market for these types of expressive and cultural works, and this will induce people to create these types of great works for the benefit of the public.

Property, of course, was central to the Founding Fathers in general. John Adams famously said, “Property must be secured, or liberty cannot exist.” Property was really important, and they saw copyright as a type of property. By giving authors these exclusive rights, it enabled this marketplace for creative works. This is consistent with other things you hear. When the Continental Congress recommended to the states, the Committee that made that recommendation said they were “persuaded that nothing is more properly a man’s own than the fruit of his study and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce.”

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