History of Copyright

Copyright Pirate, Puck Magazine,

A copyright pirate, 1900. While European countries opposed piracy at the time, US policy did not actually discourage international copyright piracy until the copyright act of 1976, when the US joined the Berne convention.

Licensing of book printing began in Britain 1534 when the Stationers’ Company was given a printing monopoly and the power to enforce actions against what was then unlawful competitoin.

In 1710, first Copyright Act (called the Statute of Anne) introduced two new concepts – 1) the author was the owner of copyright and 2) A fixed term of protection for published works. It was originally 14 years, renewable for another 14 years.

The US Constitution of 1787 contained the power to grant copyrights and patents in Section 8, Clause 8:

“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”

While the US Constitution protected American works, it did not protect works registered in other nations. Similarly, works published in the UK by American writers, or in France by German writers, were also unprotected from exploitation in other countries. Immanuel Kant was one of the first to speak out against the “Injustice of Counterfeiting Books” in 1798.  Charles Dickens, the 19th century author of Christmas Carol and Tale of Two Cities, was outraged by the imitations and outright thefts of his work that appeared in print in America. Dickens and other authors demanded an international copyright treaty in the 1850s and 60s. Also influential was Victor Hugo, author of Les Miserables and the Hunchback of Notre Dame, who helped organize an international association to protect copyright.

Copyright scofflaws, especially the Americans, assumed that they should be able to absorb culture from Europe without a “tax on knowledge.”  Dickens didn’t see it as a tax, of course:

“You take the uncompleted books of living authors, fresh from their hands, wet from the press, cut, hack, and carve them … Now, show me the distinction between such pilfering as this, and picking a man’s pocket in the street.” — Charles Dickens in “Nicholas Nickleby”

Dickens’ complaints were heard in Britain. In 1875, a Royal Commission on British copyright law advised a copyright treaty with the US to provide reciprocal protection of British and US authors.

Meanwhile, European nations were also forming an international copyright agreement,  the Berne Convention for the Protection of Literary and Artistic Works, also called the International Copyright Act of 1886.

The UK ratified the Berne Convention in 1887.  ( The US took another 102 years to ratify the international copyright act, finally becoming a Berne Convention member in 1989.)

Mark Twain

Mark Twain (Samuel Clemens) was also concerned about copyright law and in 1906 he testified before a Congressional committee that he thought copyright should last forever:

I am aware, that copyright must have a term, must have a limit, because that is required by the Constitution of the United States, which sets aside the earlier constitution, which we call the Decalogue. The Decalogue says that you shall not take away from any man his property. I do not like to use the harsher term, “Thou shalt not steal.” But the laws of England and America do take away property from the owner. They select out the people who create the literature of the land. Always talk handsomely about the literature of the land. Always say what a fine, a great monumental thing a great literature is. In the midst of their enthusiasm they turn around and do what they can to crush it, discourage it, and put it out of existence. I know that we must have that limit. But forty-two years is too much of a limit. I do not know why there should be a limit at all. I am quite unable to guess why there should be a limit to the possession of the product of a man’s labor. There is no limit to real estate. As Doctor Hale has just suggested, you might just as well, after you had discovered a coal mine and worked it twenty-eight years, have the Government step in and take it away–under what pretext!

Other Americans had a very different attitude about copyright. Woody Guthrie, the famous folk song singer of the 1930s – 50s,  said:

This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission will be mighty good friends of ours, cause we don’t give a darn. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

Guthrie’s songs were first copyrighted in 1945 and, some argue, not renewed. Meanwhile, music copyright company  Ludlow Music and the Woody Guthrie Foundation established a copyright to Guthrie’s songs in the mid-1950s.

One song in particular — This Land is Your Land — has been a point of contention. The song was copyrighted in 1945 and the copyright was not renewed, so, some argue, it should be in the public domain.  But  the song was also copyrighted separately in 1955 by Ludlow, at a time when Guthrie was a vagrant and headed for psychiatric confinement.   In 2004, Ludlow challenged a “Jib-Jab” satire / parody of the 2004 election. The song is both parody and satire; while direct parody of a song is protected, satire may not be.  Ludlow and the Guthrie foundation decided not to pursue the lawsuit. More recently,  a New York law firm Wolf Haldenstein Adler Freeman & Herz,  challenged the copyright status of “This Land,” saying it belongs in the public domain.  (New York Times, June 17, 2016).

Copyright duration 

One of the biggest arguments about copyright involves the extraordinarily long period of time that US copyright remains in force.  Under the Berne convention, which applies to most countries in the world, copyright lasts the life of an author plus an additional 50 years.

Under US copyright law,  works created after January 1, 1978 are protected for the life of the author plus an additional 70 years. Corporate works (anonymous, pseudonymous, or a work made for hire) have copyright terms lasting 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

This  law is built on the 1976 Copyright Actwhich extended copyright protection to new technologies, codified Fair Use, and began to recognize  international copyright protections under the Berne Convention.

Twenty years later, as works from the 1920s were beginning to fall into the public domain, the Sonny Bono Copyright Term Extension Act of 1998 was passed, adding another 20 years, so that anything produced after 1923 would still be under copyright.  (See Why Congress kept Mickey Mouse out of the public domain, Washington Post, Oct. 25, 2013).

A Supreme court case challenging this copyright term extension was Eldred v. Ashcroft, the duration was challenged  under the idea that the Constitution only provided for a “limited” amount of time for exclusive copyright to “promote the progress of science and the useful arts.”  Clearly 95 to 110 years is hardly limited, but the courts said it was up to Congress to decide how terms were to be limited.

The legal scholar who brought the Eldred suit, Lawrence Lessig, describes some of the broader issues around public domain and copyright  in this highly recommended TED video.

For more about the history of copyright, see: