Ginsberg Tale of Two Copyrights 1990

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one’s (preferred) status as a creator. [1] For example, a lead-

* Associate Professor of Law, Columbia University. B.A. 1976, M.A. 1977, University of Chicago; J.D. 1980, Harvard University. Research for this Article was supported in part by the Columbia Law School Summer Research Grants program.

Thanks to my colleagues George Bermann, Richard Briffault, Henry P. Monaghan, and Peter Strauss, and to Professor John Merryman, Stanford Law School, for valuable comments on earlier drafts. Paola de Kock, Columbia Law School class of 1990, provided helpful research assistance. Special thanks to Professor Carla Hesse, University of California, Berkeley, Department of History.

This Article is based on a presentation made at the Library of Congress Symposium on Publishing and Readership in Revolutionary France and America, May 2, 1989.

Editor’s note: It is with great pleasure that the Tulane Law Review publishes this piece on revolutionary copyright law in our May 1990 issue, at the time of the bicentennial of the United States first copyright law, which passed May 31, 1790.

1. The reports to the revolutionary parliaments of Le Chapelier, see Le Moniteur Universel, Jan. 15, 1791, reprinted in 7 RÉIMPRESSION DE L’ANCIEN MONITEUR 113, 116-18 (1860) [hereinafter Report of Le Chapelier], and of Lakanal, see Le Moniteur Universel, July 21, 1793, reprinted in 17 RÉIMPRESSI0N DE L’ANCIEN MONITEUR, supra, at 169, 176 [hereinafter Report of Lakanal], usually furnish the leading evidence for these kinds of assertions. As discussed infra subpart III (A), these sources in fact prompt quite different conclusions.

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ing French copyright scholar states that one of the “fundamental ideas” of the revolutionary copyright laws is the principle that “an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation”. [2] By contrast, the U.S. Constitution’s copyright clause, [3] echoing the English Statute of Anne, [4] makes the public’s interest equal, if not superior, to the author’s. This clause authorizes the establishment of exclusive rights of authors as a means to maximize production of and access to intellectual creations.5

Pursuing this comparison, one might observe that post-revolutionary French laws and theorists portray the existence of an intimate and almost sacred bond between authors and their works as the source of a strong literary and artistic property right. [6] Thus, France’s leading modern exponent of copyright theory, the late Henri Desbois, grandly proclaimed: “The author is protected as an author, in his status as a creator, because a bond unites him to the object of his creation. In the French tradition, Parliament has repudiated the utilitarian concept of protecting works of authorship in order to stimulate literary and artistic activity.” [7]

By contrast, Anglo-American exponents of copyright law and policy often have viewed the author’s right grudgingly. One of copyright’s reluctant advocates, Lord Macaulay, labeled the

2. C. COLOMBET, PROPRIÉTÉ LITÉRAIRE ET ARTISTIQUE 8 (4th ed. 1988). All translations are mine, unless otherwise indicated.

3. U.S. CONST. art. I, § 8, cI. 8.

4. Statute of Anne, 1710, 8 Anne, ch. 19.

5. U.S. C0NST. art. I, § 8, cl. 8. See generally Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) (limits on the exclusive rights conferred by the Copyright Act of 1909); H.R. REP. No. 2222, 60th Cong., 2d Sess. (1909) (copyright policy will stimulate writing and invention); Monta, The Concept of “Copyright” Versus the “Droit d’Auteur,” 32 S. CAL. L. REV. 177 (1959) (comparison of the Anglo-Saxon concept of copyright to the French concept).

6. See, e.g., Law of Mar. 11, 1957, No. 57-298, art. 1, 1957 Dalloz, Legislation [D.L.] 102, Juris-Classeur Périodique [J.C.P.] No. 31, 22030; Portalis, Speech to Chamber of Peers (May 25, 1839), quoted in P. RECHT, LE DROIT D’AUTEuR, UNE NOUVELLE FORME DE PROPRIETE 49 (1969) (authors’ rights in their works are not only “property by appropriation, but property by nature, by essence, by entirety, by the indivisibility of the object from the subject”); LAMARTINE, On Literary Property, Report to the Chamber of Deputies, 1841, in 8 OEUVRES COMPLETES 394, 405 (Paris 1842) (“the very nature of this property, entirely personal, entirely moral, entirely united with the creator’s thought”).

7. H. DESBOIS, LE DROIT D’AUTEUR EN FRANCE 538 (3d ed. 1978) (describing 1957 French copyright law); see also Monta, supra note 5, at 178 (the text of the 1957 French law “sounds like the proclamation of the rights of men. These are obviously proclaimed to be natural rights independent of statute…”)

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institution of copyright as “exceedingly bad,” [8] but was willing to tolerate it as the means to promote the dissemination of socially useful works. [9] In this view, copyright should afford authors control no greater than strictly necessary to induce the author to perform his part of the social exchange. [10]

Conceptions of French copyright law as author-oriented and of Anglo-American copyright law as society-oriented carry certain corollaries. In general, one may anticipate that the more author-centered the system, the more protective the copyright regime will be. [11] And the extent of this author-centrism will promote some interests over others. For example, some argue that the different foci of the systems account for the active protection of authors’ noneconomic moral rights to receive attribution for and preserve the artistic integrity of their creations in France, and for the traditional paucity of such safeguards in the U.S. [12] Similarly, the French perspective will encompass most comfortably works of discernible literary or artistic content, [13] while the U.S. emphasis on social utility may explain its historically vigorous copyright coverage of works such as compilations conveying much information but little subjective authorial contribution, [14] as well as its present receptivity to computer pro-

8. 1 C. MACAULAY, Speech to House of Commons, Feb. 5, 1841, in THE WORKS OF LORD MACAULAY: SPEECHES, POEMS, & MISCELLANEOUS WRITINGS 667 (1898).

9. Id. at 661-63.

10. For a modern American exposition of this view, see Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 350-51 (1970).

11. Cf B. KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 22-25 (1967) (as English authors perceived themselves more as original creators and less as imitative craftsmen, they began to assert more claims over their works; the scope of copyright protection accordingly expanded to cover not only exact copies, but partial copies and adaptations).

12. See, e.g., DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United States, 28 BULL. COPYRIGHT Soc’y 1, 5 1-56 (1980) (comparison of the French droit d’auteur to American copyright); Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1, 9-16 (1985) (comparison of artistic protection in the U.S. and Europe); Note, An Author’s Artistic Reputation Under the Copyright Act of 1976, 92 HARV. L. REV. 1490, 1492-96 (1979) (comparison of American copyright system to civil-law moral-rights system).

13. See, e.g., C. CARREAU, MERITE ET DRorr D’AUTEUR (1981); Desjeux, Logiciel, jeux vidéo, et droit d’auteur, EXPERTISES, Nov. 1984, at 277; cf Dillenz, Qu’est-ce que le droit d’auteur et pourquoi l’appliquons-nous?, 59 IL DIRITTO DI AUTORE 349, 356 (1988) (“Who could truly assert, for example, that an advertising jingle, the instructions for a board game or a sample of wall paper belong to the ‘most sacred and most personal of properties,’ as I.e Chapelier [proponent of the first revolutionary copyright law] did not hesitate to assert respecting works forming the subject matter of copyright?”).

14. See, e.g., Ladd v. Oxnard, 75 F. 703, 731 (C.C.D. Mass. 1896) (protecting book of credit ratings and financial standings of stone dealers and manufacturers in U.S. and [Canada); Brightley v. Littleton, 37 F. 103, 104 (C.C.E.D. Pa. 1888) (sustaining copyright protection of blank forms); Emerson v. Davies, 8 F. Cas. 615, 619-20 (C.C.D. Mass. 1845) (No. 4436) (holding arithmetic book copyrightable).]

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gram protection.

Another consequence of different copyright conceptions pertains to the role of formalities. Formalities are state-imposed conditions on the existence or exercise of copyright. If copyright is essentially a governmental incentive program, many formal prerequisites may accompany the grant. For example, requiring the author to affix a notice of copyright, or to register and deposit copies of the work with a government agency, before the right will be recognized or enforced is fully consistent with a public-benefit view of copyright. But these requirements clash with a characterization of copyright as springing from the creative act. If copyright is born with the work, then no further state action should be necessary to confer the right; the sole relevant act is the work’s creation.

Despite these paradigms, the differences between the U.S. and French copyright systems are neither as extensive nor as venerable as typically described. [15] In particular, despite the con-

15. The present differences between the systems are fast becoming muted. In 1985 France enacted computer program protection in terms reminiscent of the U.S. system, including the virtual exclusion of employee-creators from copyright ownership and the drastic curtailment of their moral rights. Law of July 3, 1985, arts. 45, 46, 1985 Dalloz-Sirey, Lé gislation [D.S.L.] 356, J.C.P. No. 59, 57400. In 1987 France’s highest civil-law court rejected copyright infringement challenges to the creation of certain data bases referencing and to some extent copying from pre-existing works. The court’s and the First Advocate’s rationales for curtailing the scope of the copyright in the referenced works recall analyses of U.S. courts under our “fair use” doctrine. Compare Judgment of Oct. 30, 1987, Cass. ass. plén., 135 REVUE INTERNATIONALE DU DROIT D’AUTEUR [R.I.D.A.] 78 (1988) (unauthorized computerized index with summaries of, and excerpts from Le Monde) with New York Times Co. v. Roxbury Data Interface, Inc., 434 F. Supp. 217 (D.N.J. 1977) (unauthorized computerized subindex to the New York Times Index excused on fair use grounds). See generally Ginsburg, French Copyright Law: A Comparative Overview, 36 J. COPYRIGHT Soc’y 269, 28 1-83 (1989) (discussing the two decisions).

On the United States side of the copyright rapprochement, in 1988 the U.S. modified its copyright law to join the Berne Convention, an international copyright treaty in which the standards reflect more French than Anglo-American copyright precepts. Thus, the U.S. now virtually has abandoned formalities as a condition of the existence or exercise of copyright and has asserted that it affords authors adequate protection of their moral rights. See generally Ginsburg & Kernochan, One Hundred and Two Years Later: The U.S. Joins the Berne Convention, 13 COLUM. J.L. & Awrs 1 (1988) (discussing changes in U.S. copyright law as a result of U.S. adherence to the Berne Convention). While the latter point remains debatable, U.S. courts have displayed an increased willingness to approach and favorably resolve questions about creators’ interests in attribution and artistic integrity. See, e.g., Community for Creative Non-Violence v. Reid, 846 F.2d 1485 (D.C. Cir.), aff’d, 109 S. Ct. 2166 (1989) (raising issues of art object owner’s compliance with artist’s interests in attribution and integrity); Harper & Row v. Nation Enters., 471 U.S. 539 (1985) [(discussing author’s integrity interests in right of first publication); Lamothe v. Atlantic Recording Corp., 847 F.2d 1403, 1407-08 (9th Cir. 1988) (recognizing co-author’s right to claim attribution when all credit given to another co-author); Gilliam v. ABC, 538 F.2d 14, 24-25 (2d Cir. 1976) (discussing scriptwriters’ right of integrity when television program is edited heavily by broadcaster). Further recognition of moral rights may yet emerge from our federal legislature. See, e.g., H.R. 2690, 101st Cong., 2d Sess. (1990) (rights of attribution and integrity for certain works of visual arts); REPORT OF THE REG. OF COPYRIGHTS, TECHNOLOGICAL ALTERATIONS TO MOTION PICTURES (1989).]

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ventional portrayal, the French revolutionary laws did not articulate or implement a conception of copyright substantially different from that of the regimes across the Channel and across the Atlantic. [16] The French revolutionary sources themselves cast doubt upon the assumed author-centrism of the initial French copyright legislation. The speeches in the revolutionary assemblies, the texts of the laws, and the court decisions construing the laws, all indicate at least a strong instrumentalist undercurrent to the French decrees of 1791 and l793. [17] Similarly, while the law of U.S. letters predominantly reflects and implements utilitarian policies, U.S. law was not impervious to authors’ claims of personal right. Indeed, some of the earliest U.S. state copyright laws set forth author-oriented rationales of which any modern Frenchman would be proud - and from which some revolutionary legislators might have drawn considerable inspiration. [18]

This Article examines the rhetoric and policies of the first French and U.S. copyright laws as well as their application in practice. Initially, I briefly review printing privileges under the ancien régime. Next, I examine the early Anglo-American copyright regime, with particular reference to the policies underlying the first U.S. copyright statute, and the works it covered. I then

16. Cf S. RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1996, at 5-6 & n.1 1 (1987) (quoting J. K.ASE, COPYRIGHT THOUGHT IN CONTINENTAL EUROPE 8 (1971)):

It will be seen that both these [French revolutionary] laws placed authors’ rights on a more elevated basis than the [English] Act of Anne had done. There was a conscious philosophical basis to the French laws that saw the rights protected as being embodied in natural law. Accordingly, the laws were simply according formal recognition to what was already inherent in the “very nature of things.”

17. See generally C. Hesse, Res Publicata: The Printed Word in Paris 1789-1810 (dissertation presented to Princeton Univ. Oct. 1986) (discussed infra) (consideration of other primary sources supporting this conclusion).

18. See, e.g., Mass. Act of Mar. 17, 1783, reprinted in COPYRIGHT ENACTMENTS OF THE UNITED STATES, 1783-1906, COPYRIGHT OFFICE BULLETIN No. 3, at 11 (1906) [hereinafter COPYRIGHT OFF. BULL. No. 3]. Pierre Recht suggests that a key phrase of this law’s preamble was taken up by the reporter of the 1791 French law. P. RECHT, supra note 6, at 26.

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turn to the parliamentary speeches and texts of the French 1791 and 1793 decrees. Finally, I consider the French court decisions through 1814 construing the revolutionary copyright laws. This examination will demonstrate that the principles and goals underlying the revolutionary French copyright regime were far closer to their U.S. counterparts than most comparative law treatments (or most domestic French law discussions) generally acknowledge. The first framers of copyright laws, both in France and in the U.S., sought primarily to encourage the creation of and investment in the production of works furthering national social goals.

This study stops at the end of the Napoleonic era, substantially before the development of personalist doctrines, such as moral rights, by French copyright scholars and courts. These doctrines did provoke theoretical and practical divergences between the French and U.S. copyright regimes. [19] But the later occurrences of a conceptual breach between the two copyright systems should not obscure the significance of their initial similarities. Recognizing this early congruence is important for several reasons.

First, in addition to the inherent interest the subject of comparative eighteenth-century copyright may hold, there is some value to setting the historical record straight. Second, historical accuracy may promote future legislative harmonization; now that increasing U.S. participation in international copyright agreements and policy-making bodies calls key features of the U.S. copyright system into discussion, one can properly argue that U.S. copyright has not always been different from that of its Continental partners. The comparison of systems shows that their distinctions are neither original nor immutable. A copyright regime’s initial instrumentalist formulation does not preclude later reception of more personalist notions of protection. By the same token, a modern author-oriented copyright system’s reference to its utilitarian past may assist its absorption of newer productions perhaps remote from the core of the beaux arts.

19. These doctrines emerged surprisingly late, at the end of the 19th and beginning of the 20th centuries. See generally, P. RECHT, supra note 6.

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II. COPYRIGHT BEFORE 1791 (MODELS AVAILABLE TO FRENCH REVOLUTIONARY LEGISLATORS)

A. Ancien Régime

Since the late Renaissance the French Crown regulated the publishing industry; publishing monopolies were an offshoot of royal censorship. The author, or more often, the publisher or bookseller, applied for permission to publish the work and sought the privilege of holding the exclusive right of its publication. [20] Under the edicts of 1777-78, the Crown afforded printing privileges to both authors and printers. The author’s privilege was perpetual, but once ceded to the publisher, or if initially acquired by the publisher, it lasted only during the life of the author. [21] By the end of the ancien régime, much rhetoric proclaiming the sanctity and self-evidence of exclusive literary property rights had infiltrated the copyright debate, most of it propounded by publishers invoking authors’ rights for the publishers’ benefit, [22] some of it by government advocates invoking authors’ rights to curb publishers’ assertions. [23]

The system of printing privileges was conditioned upon compliance with formalities: deposit of copies in national libraries, inclusion of the text of the privilege in each printed copy, and registration of copies with the publishers’ guild. [24] Remedies afforded by the privilege included injunctions and damages, as well as seizure, confiscation, and destruction of infringing copies. [25] In addition to controlling the right to publish the work,

20. On regulation of publishing under the ancien régime, see generally M.-C. DOCK, ETUDE SUR LE DROIT D’AUTEUR (1963); H. FALK, LES PRIVILÈGES DE LIBRAIRIE SUR L’ANCIEN RÉGIME (1906 & photo. reprint 1970); E. LABOULAYE & G. GUIFFREY, LA PROPRIÉTÉ LITTÉRAIRE AU XVIIIE SIÈCLE (Paris 1859); M.-F. MALAPERT, HISTOIRE ABREGEE DE LA LEGISLATION SUR LA PROPRIETE LITTÉRAIRE AVANT 1789 (1881); Birn, The Profits of Ideas: Privileges en librairie in Eighteenth-Century France, 4 18TH- CENTURY STUD. 131 (1971); Henrion, Appoint à l’étude des privilèges de librairies aux XVIe et XVIIe siècles, 6 R.I.D.A. 113 (1955).

21. Edict of Aug. 30, 1777, on Privileges arts. 4, 5, reprinted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 143, 145 [hereinafter Edict on Privileges].

22. See, e.g., the 1777 petition of the advocate Cochu on behalf of the Paris publishers, reprinted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 159-98. Cochu contended, “If there is one property which is sacred, self-evident, incontestable, it is doubtless that of authors in their works.” Id. at 160. This and similar rhetoric would be echoed in the revolutionary assemblies. See infra text accompanying note 64.

23. See Procés-Verbal Concernant Ia Librairie, excerpted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 463-596.

24. Edict on Privileges, supra note 21, at 143-47.

25. See Edict of Aug. 30, 1777, on Infringement, reprinted in E. LABOULAYE & G. GUIFFREY, supra note 20, at 147-50.

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the Crown also regulated rights of public performance of dramatic works by vesting in the Comédie Française the exclusive right to perform such works. [26]

B. Anglo-American Copyright

1. Statute of Anne (1710)

England was the first nation to substitute a statutory rule of copyright law for a regime of royal favor. Known as the Statute of Anne, the first copyright statute was enacted in 1710. [27] Its title and preamble enunciate the policy that became the essential rationale for both English and American copyright laws: copyright is an incentive to authors to create so that the public may have access to and be enriched by their works. [28] The Statute of Anne is titled “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies.” [29] Its preamble states that the Act is to discourage piracy and is “for the Encouragement of learned Men to compose and write useful Books.” [30] The statute sought to accomplish these goals by conferring a reproduction right on authors for fourteen years, [31] renewable for another fourteen, if the author was still living. [32] The Act imposed the formalities of registration and deposit of copies as prerequisites to protection. [33] Remedies included destruction of infringing copies and damages. [34]

2. The Late Eighteenth-Century U.S. Copyright System

The United States Constitution, drafted in 1787, and available in France in Philip Mazzei’s French translation by at the latest 1790, authorizes a national copyright regime. In terms reminiscent of the Statute of Anne’s incentive and access policy,

26. On the rights of dramatic authors and the Comédie Française under the ancient régime, see, e.g., J. BONCOMPAIN, AUTEURS ET COMEDIENS AU XVIIIE SIÈCLE (1976); 3. BONNASSIES, LES AUTEURS DRAMATIQUES ET LA COMEDIE FRANÇAISE AUX XVIIE ET XVIIIE SIÈCLES (1874 & photo. reprint 1970).

27. Statute of Anne, 1710, 8 Anne, ch. 19.

28. Id. at title and preamble.

29. Id. at title.

30. Id. at preamble.

31. Id.

32. Id § I

33. Id. § II.

34. Id. § V. On the Statute of Anne and its history, see, e.g., L. PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 143-50 (1968); H. RANSOM, THE FIRST COPYRIGHT STATUTE (1956).

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the Constitution declares “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”. [35] Later authorities have claimed that this phrasing subordinates the author’s interests to the public benefit. For example, a report accompanying Congress 1909 general revision of the copyright law construes the Constitutional intent as follows:

Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention to give some bonus to authors and inventors. [36]

Sources chronologically closer to the Constitution, however, treat the private and public interests more even-handedly. While records from the Constitutional Convention concerning the copyright clause are extremely sparse, a document dated August 18, 1787, notes that the proposed legislative powers were submitted to the Committee of Detail: “To secure to literary authors their copy rights for a limited time. To encourage by proper premiums and provisions the advancement of useful knowledge and discoveries”. [37] The referral to the Committee of Detail thus sets forth the authors’ property interest (“their copy rights”) and the public interest in advancement of knowledge as separate considerations of equal weight. Similarly, in The Federalist Papers, Madison endorsed the copyright clause, asserting, “The public good fully coincides in both cases [of patents and copyrights] with the claims of individuals.” [38]

Sources shortly predating the Constitution also indicate

35. U.S. C0NST. art. I, § 8, cI. 8.

36. H.R. REP. No. 2222, supra note 3, quoted in A. LATMAN, R. G0RMAN & J. GINSBURG, COPYRIGHT FOR THE NINETIES 14 (3d ed. 1989). For an exposition of the varying interpretations permitted by the constitutional text, see L. PATTERSON, supra note 34, at 195-96.

37. 1 DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION, H.R. DOC. No. 398, 69th Cong., 1st Sess. 130 (1927), quoted in Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 17 GE0. L.J. 109, 112 (1929).

38. THE FEDERALIST No. 43, at 279 (3. Madison) (Mod. Lib. ed. 1941); see also Kauffmann, Exposing the Suspicious Foundations of Society’s Primacy in Copyright Law: Five Accidents, 10 COLUM.-VLA J.L. & ARTS 381, 403.08 (1986) (challenging the dominance of a public benefit rationale underlying the constitutional copyright clause); Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. (1990).

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American acknowledgement of authors’ personal claims in addition to utilitarian motivations. Before enactment of the Constitution, protection of literary property was a matter for the states. In his essay Origin of the Copy-Right Laws in the United States, Noah Webster recounted the dire state of American education in 1782 and his resulting efforts to persuade state legislatures to protect publications. [39] “[Shchool-books were scarce and hardly obtainable,” Webster recalled.” [40] Having himself “compiled two small elementary books for teaching the English language,” [41] he set off to New Jersey and Pennsylvania to seek copyright protection. The legislatures were not then in session, but Webster enlisted prominent local academic figures in his cause. A letter signed by professors at Princeton and the University of Pennsylvania sets the tone of the arguments in favor of copyright. After praising Webster’s two works as “very proper for young persons in the country,” the letter urges:

Every attempt of this nature undoubtedly merits the encouragement of the public; because it is by such attempts that systems of education are gradually perfected in every country, and the elements of knowledge rendered more easy to be acquired. Men of industry or of talents in any way, have a right to the property of their productions; and it encourages invention and improvement to secure it to them by certain laws, as has been practiced in European countries with advantage and success. And it is my opinion that it can be of no evil consequence to the state, and may be of benefit to it, to vest, by a law, the sole right of publishing and vending such works in the authors of them. [42]

While stressing the manifold benefits to public instruction flowing from protecting authors, Webster’s fellow copyright lobbyists also invoked, on behalf of authors, the general Lockean principle that a property right arises out of one’s labors. This mixed argumentation also emerges in the state copyright statutes that followed from both Webster’s efforts and the next year’s

39. N. WEBSTER, Origin of the Copy-Right Laws in the United States, in A COLLECTION OF PAPERS ON POLITICAL, LITERARY AND MORAL SUBJECTS 173 (N.Y. 1843 & B. Franklin ed. photo. reprint 1968). The reader might conclude from Webster’s account that he was virtually single-handedly responsible for the enactment of copyright laws, not only by the states before 1790, but also by Congress in 1831.

40. Id.

41. Id.

42. Id. at 173-74 (quoting letter of Samuel S. Smith (Sept. 27, 1782)); cf Report of Lakanal, supra note 1, at 176 (calling copyright “a right whose increase can neither harm republican equality, nor offend liberty”).

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Continental Congress resolution encouraging the thirteen states to pass copyright laws. [43] For example, the preamble to the Massachusetts Act of March 17, 1783, first announced a public benefit rationale drawn from the English precedent, but then stated:

As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is procured by the labor of his mind. [44]

The first U.S. copyright statute, however, adopted a narrower view of authors’ rights. The statute’s title, “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,” [45] suggests Congress intent to employ copyright as a means of furthering public education. The statute granted protection in these works to the author or his assigns for fourteen years, renewable for another fourteen, if

43. See “Resolution passed by the colonial Congress, Recommending the several States to secure to the Authors or Publishers of New Books the Copyright of such Books,” May 2, 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 11.

44. Mass. Act of Mar. 17, 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 14; see also N.H. Act of Nov. 7, 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 18-19; R.I. Act of Dec. 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 19-20.

The organization of the Connecticut statute places the author’s personal rights before the public’s. It states:

Whereas it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind.

Conn. Act of Jan. 1783, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 11. For wording that closely resembles that of the Connecticut statute, see N.C. Act of Nov. 19, 1785, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 25; Ga. Act of Feb. 3, 1786, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 27; and N.Y. Act of Apr. 29, 1786, reprinted in COPYRIGHT OFF. BULL. No. 3, supra note 18, at 29. Another source concludes from this organization that “even though encouragement of learning was included as a reason for these four statutes, the primary purpose seemed to have been the enforcement of a pre-existing right - a property right in intellectual works.” Crawford, Pre-Constitutional Copyright Statutes, 23 BULL. COPYRIGHT SOC’Y 11, 15 (1975); see also L. PATTERSON, supra note 34, at 188 (“The dominant idea of copyright underlying the state statutes was the idea of copyright as an author’s right.”). But see 1 J. TEBBEL, A HISTORY OF BOOK PUBLISHING IN THE UNITED STATES: THE CREATION OF AN INDUSTRY 1630-1865, at 139 (1972) (pointing out that the Connecticut statute “gave the Superior Court the right to withdraw copyright if the author did not ‘furnish the Public with sufficient Editions’ of a book”).

45. Act of May 31, 1790, 1 Stat. 124.

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the author was still living. [46] The Act imposed the formalities of registration and deposit of copies, together with affixation of a notice of copyright, as prerequisites to protection. [47] Remedies included forfeiture of infringing copies and damages. [48]

C. For What Kinds of Works Was Anglo-American Copyright Sought or Litigated?

The works generating the subject matter of copyright deposits and claims reflect the general universe of late eighteenth-century American publications. Perhaps not suprisingly for a young republic, instructive, civics-oriented works dominate the publishing catalogues. For example, examination of the 5368 publications (including newspapers and pamplets) listed in the 1790-92 and 1798-99 volumes of Charles Evans’s American Bibliography indicates that republican publishing habits corresponded to the “new republican ideology [that] defin[ed] the virtuous citizen as one who was broadly informed about political doctrine and public affairs.” [49] Evans’s records for these years show 540 newspapers (157 newspapers for 1790-92, 383 for 1798-99), 441 titles in Political Science (207 for 1790-92, 234 for 1798-99), 302 titles in History (117 for 1790-92, 185 for 1798-99), 270 titles in Social Science (125 for 1790-92, 145 for 1798-99), and 61 Fourth of July orations for 1798-99. By contrast, the publication of novels appears fairly modest: 43 titles for 1790-92 and 119 for 1798-99. [50] This relative paucity of fiction also may

46. Id. § 1.

47. Id. § 3. Formalities often proved fatal to U.S. authors’ or publishers’ claims. See, e.g., Wheaton v. Peters, 33 U.S. [8 Pet.] 591 (1834) (failure to comply with registration requirements); Clayton v. Stone, 5 F. Cas. 999 (C.C.S.D.N.Y. 1829) (No. 2872) (news bulletins held uncopyrightable because unamenable to compliance with formalities). For an argument that the onerous formalities established by the 1790 Federal Copyright Act “betrayed” U.S. authors, see Ringer, Copyright in Retrospect: Authors’ Rights in Prospect, 14 COLUM. J.L. & ARTS (forthcoming 1990).

48. Act of May 31, 1790, 1 Stat. 124, § 2. Neither the English nor the U.S. laws provided in the 18th century for a right of public performance.

49. Brown, Afterword: From Cohesion to Competition, in PRINTING AND SOCIETY IN EARLY AMERICA 300, 305 (1983).

50. The classifications are those of Evans. 8 C. EVANS, AMERICAN BIBLIOGRAPHY 414, 416-20 (1941) (covering 1790-92); 12 id. at 389-91, 294-97 (1942) (covering 1798-99). For general bibliographical information concerning late 18th-century publishing in America, see, e.g., 9-11 id. (covering 1793-97); C. SHIPTON & J. MOONEY, NATIONAL INDEX OF AMERICAN IMPRINTS THROUGH 1800: THE SHORT-TITLE EVANS (1969); Brigham, American Booksellers’ Catalogues, 1734-1800, in ESSAYS HONORING LAWRENCE C. WROTH 31(1951).

English authors wrote much of the fiction; the titles published in the U.S. in 1790-92 included three editions of Defoe’s Robinson Crusoe; two each of Fielding’s Toni Jones and [Joseph Andrews; three of Goldsmith’s Vicar of Wakefield; and one each of Richardson’s Pamela, Clarissa Harlow, and Sir Charles Grandison. See 8 C. EVANS, supra, at 416-17. None of these could have been copyrighted in the U.S. because the first U.S. copyright statute (and all subsequent statutes until 1891, see 26 Stat. 1106) limited protection to U.S. works. U.S. publishers thus freely pirated English works, particularly novels. In the 19th century, Dickens and Trollope complained bitterly of such American practices. Out of creative solidarity and economic self-interest, American novelists also objected to the lack of protection for foreign works: pirate editions of English works undercut or depressed the price of their works. See Sandison, The Berne Convention and the Universal Copyright Convention: The American Experience, 11 COLUM. J.L. & ARTS 89, 92-93 (citing works).]

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reflect republican values. Thomas Jefferson stated, “A great obstacle to good education is the inordinate passion prevalent for novels, and the time lost in that reading which should be instructively employed”. [51]

A review of the copyright records casts light on the smaller universe of works of actual or perceived economic value [52] and allows comparison of government policy in enacting the copyright incentive to the kinds of works for which authors and publishers in fact accepted the government’s offer. Copyright practice apparently met policy goals - copyright was sought for the socially useful, instructive works that Congress had intended to encourage.

Petitions to Congress before enactment of the first copyright statute sought exclusive privileges for works overwhelmingly instructional in character. For example, on May 12, 1789, Jedediah Morse petitioned for exclusive rights in The American Geography, or a View of the present Situation of the United States of America embellished and illustrated with two original maps, and on June 8, 1789, one Nicholas Pike, of Massachusetts, sought a privilege for A new and complete System of Arithmetic. [53] A recent comprehensive study of copyright deposit records covering the first ten years of the federal copyright system dis-

51. 15 T. JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 166 (1903), quoted in FEDERAL COPYRIGHT RECORDS 1790-1800 xxii (J. Gilreath ed. 1987).

52. Tebbel notes the “rather small” proportion of copyright registrations (556) to books published (13,000 titles recorded in Charles Evans’s American Bibliography) during the first nine years of the federal statute. J. TEBBEL, supra note 44, at 142. Tebbel concludes: “Obviously, the idea and opportunity of copyright were not grasped by everyone overnight.” Id. See generally FEDERAL COPYRIGHT RECORDS 1790-1800, supra note 51.

53. See Proceedings in Congress During the Years 1789 and 1790, Relating to the First Patent and Copyright Laws, 223. PAT. OFF. SOC’Y 243, 247-49 (1940) (reproducing the text of the petitions). Morse’s work became the first to be deposited for federal copyright pursuant to the 1790 statute in the state of Massachusetts. Tebbel states that Morse’s and Pike’s works “may safely be said to be ‘first’ among [American] schoolbooks.” J. TEBBEL, supra note 44, at 196.

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closes a preponderance of useful, instructional texts in deposits made pursuant to the first federal copyright statute. [54] For example, of eighty copyright deposits recorded from 1790 through 1792 in Pennsylvania and Massachusetts (the states in which most works were published), thirty-four were of grammars, geographies, or similar instructional texts and another twenty-six comprised informational works such as histories and almanacs. One scholar of publishing history attributes the dominance of textbooks in copyright registers in part to Noah Webster’s efforts, [55] and in part to national pride: “In the post-Revolution textbook boom, the demand for primers, geographies and arithmetics, in both German and English, was high, as American books patriotically replaced the British texts that had been used before.” [56] The titles of several of the instructional works deposited for copyright convey their personally and patriotically uplifting aims. For example, Jedediah Morse titled another work, registered for federal copyright in Massachusetts on July 10, 1790, as follows: Geography made easy; being an Abridgement of the American Geography;- to which is added a geographical Account of the Eurpoean settlements in America & of Europe, Asia & Africa; illustrated with eight neat maps and [wood]cuts - cakulated particularly for the use & improvement of Schools in the United States; and Noah Webster titled one of his numerous educational endeavors, registered for federal copyright in Massachusetts on October 7, 1790, as follows: An American selection of lessons in reading and speaking. Cakulated to improve the minds and refine the taste of youth. And also, to instruct them in the geography, history, and politics of the United States.57 -

U.S. copyright litigation, albeit sparse, seemingly also was

54. FEDERAL COPYRIGHT RECORDS 1790-1800, supra note 51; see also Goff The First Decade of the Federal Act for Copyright, 1790-1800, in ESSAYS HONORING LAWRENCE C. WROTH, supra note 50, at 101, 103 (pointing out preponderance of textbooks in early copyright registrations).

55. Of 69 titles on the English language published during 1790 to 1792, 23 were by Webster. 8 C. EVANS, supra note 50, at 415.

56. J. TEBBEL, supra note 44, at 142. Webster himself reaped the benefits both of his efforts to promote copyright and of nationalism. His spelling book “was a revolt against… everything the British grammars represented. Webster’s spelling, usage and pronunciations were American. Its sales were phenomenal; only the Bible has ever surpassed it to this day [1972]”. Id. at 198.

57. These works are catalogued as Nos. 265 and 267 in FEDERAL COPYRIGHT RECORDS 1790-18 10, supra note 51, at 74. I have taken the title of Webster’s work from entry No. 23050 in Evans’s American Bibliography. See 8 C. EVANS, supra note 50, at 103.

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reserved to quarrels over informational and similar works. A leading study has cited no copyright decisions before 1791, and only two lower court decisions [58] between that time and the U.S. Supreme Court’s first copyright decision, Wheaton v. Peters, [59] in 1834. [60] Both lower court cases concerned compliance with federal copyright formalities. Both also concerned works more of utility and of laborious compilation than of imagination - in one, a “federal calculator,” and in the other, a Pharmacopoeia of the United States of America. Wheaton v. Peters involved a court reporter’s claim of copyright in reports of U.S. Supreme Court decisions. [61]

III. THE FRENCH ENACTMENTS OF 1791 TO 1793

A. Revolutionary Copyright Politics: Critical Discussion of the Legal Texts and Their Legislative History

While traditional comparisons of French to Anglo-Ameri-

58. Ewer v. Coxe, 8 F. Cas. 917 (C.C.E.D. Pa. 1824) (No. 4584) and Nichols v. Ruggles, 3 Day 145 (Conn. 1808), cited in L. PATTERSON, supra note 34, at 207 (1968).

59. 33 U.S. [8 Pet.] 591 (1834).

60. I have found two other federal copyright decisions predating Wheaton p. Peters. However, both postdate the French Revolution. See Clayton v. Stone, 5 F. Cas. 999 (C.C.S.D.N.Y. 1829) (No. 2872) (financial reports); Blunt v. Patten, 3 F. Cas. 763 (C.C.S.D.N.Y. 1828) (No. 1580) (navigation charts). Clayton v. Stone nonetheless is worth signaling for its restrictive interpretation of the term “book” in the 1790 copyright act. The court denied copyright protection to market reports published in daily newspapers on the ground that “books” imply some permanent contribution to knowledge; newspapers are too “ephemeral”. 5 F. Cas. at 1003. Moreover, stressed the court, the daily publication of newspapers makes them ill-adapted to compliance with the extensive statutory formalities. It followed that Congress could not have meant to include newspapers. Id.

61. Useful works also predominate in English copyright decisions predating the French revolutionary laws. See, e.g., Trusler v. Murray, 1 East 362 n.b., 102 Eng. Rep. 140 n.b. (KB. 1789) (book of chronology); Sayre v. Moore, 1 East 361 n.b., 102 Eng. Rep. 139 n.b. (K.B. 1785) (sea charts); Carnan v. Bowles, 2 Bro. C.C. 80, 29 Eng. Rep. 45 (Cli. 1786) (road atlases); Gyles v. Wilcox, 2 Atk. 141, 26 Eng. Rep. 489, 3 Atk. 296, 26 Eng. Rep. 957, Barn. Ch. 368, 27 Eng. Rep. 682 (Ch. 1740) (law books). This condition continued in subsequent years. Augustine Birrell, the Victorian law professor and Member of Parliament, surveyed 19th-century English copyright cases, observing,

In reading the cases in the Reports for the last hundred years, you cannot overlook the literary insignificance of the contending volumes. The big authors and big books stand majestically on one side - the combatants are all small fry. The question of literary larceny is chiefly illustrated by disputes between bookmakers and rival proprietors of works of reference, sea charts, Patteson’s “Roads,” the antiquities of Magna Graecia, rival encyclopaedias, gazetteers, guide books, cookery books, law reports, post office and trade directories, illustrated catalogues of furniture, statistical returns, French and German dictionaries, Poole’s farce, “Who’s Who?” [and] Brewer’s “Guide to Science.”

A. BIRRELL, SEVEN LECTURES ON THE LAW AND HISTORY OF COPYRIGHT IN BOOKS 170-71 (1899).

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can copyright law assert that France rejected instrumentalist theories in favor of copyright as the just and fair prerogative of creators, research in primary sources prompts a different conclusion. The various legislative texts reveal a hesitating and uneven progress toward protection of authors’ rights. Authors are not securely at the core of the new literary property regime; rather, the public plays a major role. The 1791 text predominantly is preoccupied with the recognition and enlargement of the public domain. The committee report in favor of the 1793 law emphasizes that protecting authors will not prove detrimental to society.

In the 1791 decree, the author’s concerns do not occupy center stage. The report on the 1791 decree arose in a dispute between dramatists and the Comédie Française - the latter once the beneficiary of the exclusive right to produce theatrical works, the former once effectively indentured to the only approved theater. The decree’s main goal was to proclaim the right of all citizens to open their own theaters and to produce plays, as the decree’s first article states. Authors’ rights are an adjunct to this freedom; just as any citizen may be a theatrical producer, so may any living author (or one dead for up to five years) be produced anywhere he wishes to be produced and only where he wishes to be produced. Plays by authors dead over five years are declared part of the public domain. The decree thus was designed to break the Comédie Française’s monopoly on the works of Corneille, Moliere, and Racine. [62] Seen in its overall context, the decree’s recognition of authors’ rights principally was a means to terminate that monopoly.

It bears emphasis that the authors’ rights are hardly ascendant. The reporter, Le Chapelier, is often quoted as a great exponent of author-oriented rationales for copyright. But almost invariably, the passage quoted is taken out of context. [63]

62. The Comédiens had indicated their willingness to relinquish monopoly rights in the works of living authors, but invoked the principle of nonretroactivity of new laws to insist on their continuing rights in long-deceased playwrights, such as those mentioned in the text (who, not incidentally, constituted the core of the repertory). See Report of Le Chapelier, supra note 1, at 116.

63. See, e.g., M.-C. DOCK, supra note 20, at 152; A. FRANÇON, C0URS DE PROPRIÉTÉ LITTÉRAIRE, ARTISTIQUE ET INDUSTRIELLE 15-16 (1980); E. POVILLET, TRAITÉ THÉORIQUE ET PRATIQUE DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE 26 n. 1 (3d ed. 1908).

Pouillet may have relied on several earlier treatise writers, whose incomplete quotations from Le Chapelier supply apparent evidence for an author-oriented concept of copyright. See, e.g., M. GASTAMBIDE, HIST0RIQUE ET THÉ0RIE DE LA PROPRIÉTÉ DES [AUTEURS 47 n. I (Paris 1862) (quoting Le Chapelier); A. NI0N, DROITS CIVILS DES AUTEURS, ARTISTES ET INVENTEURS 39-40 (Paris 1846).]

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