On the Road to a Modern Copyright System

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From The American Bar Association Section of Intellectual Property Law (footnotes omitted):

The roar of support for modernizing the Copyright Office is deafening. Yet, despite those cheers, stakeholders debate the placement of the Office and the role of its head, the Register of Copyrights, in the copyright system. This article presents a narrative of the evolution of the copyright system from 1783 to the early days of the Copyright Office, considering along the way themes such as the requirements for registration, the use of the copyright system to build a national library, and the role of the Register in copyright policy.

. . . .

After the American Revolution but before the creation of a federal copyright system, authors petitioned for private bills to protect their literary works. Then, starting with Connecticut in January 1783, the states began passing generally applicable copyright statutes. To secure these new rights, authors were required to provide information about their works. For instance, in Connecticut, copyright protection was not available until the copyright owner registered with the Connecticut Secretary of State, who was then “directed to enter the same on record.”

It took three years after the Constitution was signed for Congress to pass the nation’s first Copyright Act. Following the states’ example, the 1790 Act required authors to provide information to the government. Unlike today, where that information is provided to the Copyright Office, in 1790, copyright owners delivered their works to the clerks of the various district courts. The clerks, in turn, would create a record of the works and give a copy to the registering party, which then would have to “be published in one or more of the newspapers.” As commentators have noted, “It is doubtful if such publication would be effective beyond the local scene.” In addition to recording their works, copyright owners were required to cause a copy of their works “to be delivered to the Secretary of State . . . to be preserved.”  At this time, “the function of deposit was chiefly to serve as record evidence of the work covered by the copyright claim.”

. . . .

The copyright system would be formally centralized and organized over time, but one of its great innovations occurred due to the informal efforts of two clerks. As discussed above, one of the requirements under the 1790 Act was to send copies of recorded works to the Secretary of State. Yet, there was no requirement that anything be done with those copies other than that they be preserved. As the Patent Office already existed within the State Department, the copyright records were maintained there.

Two brothers working in the Patent Office, William and Seth Elliot, “compiled and published as a private venture an annual list of patents, to which was appended in the years 1822–25 ‘A List of All the Books That Have Been Deposited in the Department of State, for Securing Their Copy Right According to Law.’”  Due to a lack of support, the project eventually was abandoned, and one of the brothers would later charge “that Congress reprinted the patent list without compensation.”  Nevertheless, their contribution would later become the model for the Copyright Office’s recording system.

. . . .

Today, some stakeholders take the position that it is necessary for the copyright system and the Library of Congress to be intertwined. That, however, may not be the case.

The Library of Congress was created in 1800 as a legislative research library in the newly established capital city. Its enacting legislation provided for merely the “purchase of such books as may be necessary for the use of Congress . . . and for fitting up a suitable apartment for containing them and for placing them therein.” The Library’s historian reported that, as late as 1837, “Congress regarded the Library of Congress as only a small legislative library.”

By 1846, the Library of Congress had fierce competition in Washington, D.C. English scientist James Smithson bequeathed $500,000 to the United States for “an establishment for the increase and diffusion of knowledge among men.” After significant debate, Congress established the Smithsonian Institution, and included in the establishing act a requirement that the owner of a work protected by federal copyright law deliver two copies of the work to Washington: one to the “librarian of the Smithsonian Institution,” and one to the “librarian of Congress Library, for the use of the said libraries.”

Although delivery of these copies did not affect whether a work was protected by copyright law, it built a bridge between these national libraries and federal copyright law. This was not a new innovation. Requirements to deposit books and other cultural materials in libraries existed at least as early as 1537 in France, and 1662 in England. As foreign copyright laws developed, sometimes copyright deposits were used to enrich national libraries. Even in the United States, Massachusetts’s state copyright act required copyright owners to provide the “library of the university at Cambridge,” which would become Harvard University, “two printed copies” of their literary works.

Link to the rest at The American Bar Association Section of Intellectual Property Law

As the OP demonstrates, the development of modern copyright law was a long and winding road.

At the present time, copyright may seem to be an area in which the law is generally settled. The Berne Convention, an international copyright treaty first established in 1886 and updated periodically since then. The United States became a party to this agreement in 1989.

Despite the Berne agreement, individual nations still vary in the provisions of both formal copyright laws and the nature and efficacy of their enforcement mechanisms.

The internet has created an enormous number of new copyright issues. See yesterday’s post about Derivative Works, Fair Use and Appropriation Artists.

For example, on a fundamental basis, how should the Instagram posting of a small copy of a painting or photograph, perhaps with some graphics or commentary added, be treated under copyright law? Is such use of material protected by copyright fundamentally different than the creation of a thousand full-sized exact copies of the same painting or photograph by someone who offers them for sale?

Is there a separate standard for Instagram copies that may be likely viewed on a cell phone? Can we articulate a means of calculating the actual damage the Instagram copy causes to the artist who created the original painting or photograph?

Should we consider the potential increase in value of the original and, potentially, other works by the same artist, based upon widespread exposure of a small copy of the work to an audience of millions who follow an Instagram celebrity?

By way of illustration, assuming an indie author commissions the creation of a book cover by a cover artist and purchases all rights to that cover, is the author benefitted or harmed when a copy of the cover is posted on Instagram by a third party? If the cover artist retains the copyright and the author is granted a right to use the cover, is the author benefitted or harmed such a posting?

If the posting is seen by 25 friends of the third party, are the issues different than if the posting is seen by 135 million followers of Kim Kardashian West on Instagram?

Does the posting of the cover gain a different infringement status if the poster adds a comment that says “Great Cover!” or “If stress burned calories, I’d be a supermodel. LOL”