The Copyright Clause of the United States Constitution and Its Historical Background

How the Copyright Clause of the United States Constitution came about starts in England:

“The earliest English copyright statutes were enacted in the sixteenth and seventeenth centuries, and gave publishers a copyright in the works they published. At the same time, authors were generally understood to enjoy a perpetual common law right to their unpublished works.

“In 1710, Parliament passed the so-called Statute of Anne, which granted works published after April 10, 1710 a copyright term of 14 years from the date of publication, and an additional term of 14 years if the author survived the original term. Works published prior to April 10, 1710 received a copyright term of 21 years from that date. . . .

“Following the American Revolution, the states began to enact copyright statutes that were similar to the Statute of Anne. In 1783, Connecticut passed the first such statute, which provided a copyright term of 14 years with a renewal term of 14 years. Other states passed similar laws, also based on the Statute of Anne, but different in numerous details. . . .

“Because they varied in many respects, the state copyright statutes failed to establish a workable system of copyright protection for the new nation. . . . The Framers therefore provided Congress with a federal copyright power when they enumerated the functions of the national government in the Constitution, conferring upon Congress in the Copyright Clause, Article I, section 8, clause 8, ‘the 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.’ . . .

“Beginning with the first Copyright Act in 1790, each major copyright act enacted by Congress has broadened the scope and term of copyrights in pre-existing works, as well as in works created after the statute’s enactment.”

The Copyright Act of 1790 was the first copyright law enacted in the United States and set the initial terms of copyright:

“The First Congress enacted the initial federal Copyright Act in 1790. . . . The 1790 Act, which sought ‘the encouragement of learning,’ provided that the author of a map, chart, or book or his assignee would have a copyright for a term of 14 years from the date of compliance with certain notice, deposit, and recordation procedures. The 1790 Act also provided that, if the author survived the initial term, he or his “executors, administrators or assigns” could renew the copyright for a renewal term of 14 years.

“Importantly, the Copyright Act of 1790 expressly provided for the issuance of federal copyrights for works that were already in existence. Indeed, it specifically identified, as the first-listed beneficiaries of the new federal Copyright Act, ‘the author and authors of any map, chart, book or books already printed within these United States . . . [or] his or their executors, administrators or assigns,’ and granted them the exclusive right to publish such works ‘for the term of fourteen years’.”

The Copyright Act of 1831 provided the first copyright extension as follows:

“In 1831, Congress extended the initial copyright term to 28 years. . . . Although the renewal term remained at 14 years, Congress provided that if the author was deceased at the end of the initial term, the right of renewal passed to his widow or children. Section 16 of the 1831 Act expressly enlarged the term of copyright for those authors who had obtained copyrights prior to the enactment of the 1831 Act, so that their copyright terms would equal those for authors of future works.

“The 1831 Act responded to England’s extension of the ‘copyright term [to] twenty-eight years, plus the balance of the author’s life if he were still living at the end of the twenty-eighth year.’ . . . As the Report of the House Committee on the Judiciary stated: ‘[The Act] chiefly . . . enlarge[s] the period for the enjoyment of copyright, and thereby . . . place[s] authors in this country more nearly upon an equality with authors in other countries. . . . While . . . the United States ought to be foremost among nations in encouraging science and literature, by securing the fruits of intellectual labor, she is, in this thing, very far behind them all, as a reference to their laws will show’.

“After reviewing England’s term extension, France’s decision to extend the term to life of the author plus 50 years, Russia’s copyright term of life of the author plus 20 years, and the perpetual rights in Germany, Norway, and Sweden, the House Report stated: ‘[W]e ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science. It cannot be from the interest or honor of our country that intellectual labor should be depreciated, and a life devoted to research and laborious study terminate in disappointment and poverty’.” . . .

The Copyright Act of 1909 extended the term of copyrights further but still not in line with the rest of World:

“By 1909, when Congress next considered extending the copyright term, many countries had adopted a life-plus-50-year copyright term. . . . The Berne Convention for the Protection of Literary and Artistic Works, an international copyright treaty which was first entered into in 1886 and which the United States finally joined in 1989, initially encouraged and later required its member countries to adopt at least a life-plus-50-year copyright term.

“As evidenced by the reports in both the House and Senate on the 1909 Copyright Act, Congress considered adopting a life-plus-50-year term in 1909, but ultimately decided to maintain an initial copyright period of 28 years and to extend the renewal term to 28 years as well. . . . The 1909 Act provided that, in addition to living authors, the widows, widowers, children, executors, or next of kin of deceased authors could exercise the renewal right. Section 24 of the 1909 Act provided that copyrights already in existence would be extended ‘such that the entire term shall be equal to that secured by this Act, including the renewal period.’

“The House and Senate reports for the 1909 Act set forth a number of reasons for Congress’ extension of the scope and term of copyrights. First, Congress was concerned that the 1831 Act did not adequately reward authors because serious works often “make their way more slowly in the public regard,” and that the term then in existence did not ensure that authors would benefit from their works during their old age. Second, Congress wanted to encourage continued development of already-created works. Third, Congress observed that the 1831 Act did not provide for spouses, parents, or grandchildren if the children were deceased. Fourth, Congress, mindful of international standards, was concerned that the United States had the second shortest copyright term of any nation.”

The Copyright Act of 1976 finally brought the US term of copyright in line with those countries who were members of the Berne Convention:

“From the 1920s through the 1940s, several bills were introduced to harmonize the federal copyright law with the life-plus-50-year copyright term of the Berne Convention. . . . Congress continued to consider moving to a life-plus-50-year copyright term during the 1960s and 1970s.

“Beginning in 1962, and looking toward the enactment of comprehensive legislation revising the 1909 Copyright Act, Congress extended the terms of existing copyrights for successive brief periods of a year or more. The intent and effect of these enactments was to preserve copyrights nearing the end of their statutory protection from falling into the public domain before proposed legislation containing a longer term was passed and became effective. In this regard, the House Judiciary Committee reported that ‘[t]here is an urgent need for copyright legislation that takes full account of the continuing technological revolution in communications.’

“In the Copyright Act of 1976, Congress finally embraced the international standard established by the Berne Convention, and enacted a term of life of the author plus 50 years for works created or published after January 1, 1978. . . . Because Congress believed that the new life-plus-50-year term would be difficult to administer for copyrights already in existence, it developed different statutory formulas to approximate the new copyright term of life of the author plus 50 years for various categories of existing works. A total term of 75 years was established for existing copyrighted works, so that any copyright still in its initial term of 28 years would be eligible for a renewal term of 47 years, and a work already in its renewal term would have it extended to 47 years. Thus, a work already protected for 56 years under the 1909 Act would have its term extended for an additional 19 years by the 1976 Act.”

The reports of the House and Senate Judiciary Committees listed the following reasons, among others, for extending the term of copyright:

“‘1. The present 56-year term is not long enough to insure an author and his dependents the fair economic benefits from his works. Life expectancy has increased substantially, and more and more authors are seeing their works fall into the public domain during their lifetimes . . . .

“‘2. The tremendous growth in communications media has substantially lengthened the commercial life of a great many works. A short term is particularly discriminatory against serious works . . . whose value may not be recognized until after many years.

“‘3. . . . [T]oo short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted works. . . In some cases the lack of copyright protection actually restrains dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights. . . . .

“‘7. A very large majority of the world’s countries have adopted a copyright term of the life of the author and 50 years after his death. . . . Copyrighted works move across national borders faster and more easily than virtually any other economic commodity, and with the techniques now in common use this movement has in many cases become instantaneous and effortless. . . . Even more important, a change in the basis of our copyright term would place the United States in the forefront of the international copyright community. Without this change, the possibility of future United States adherence to the Berne Copyright Union would evaporate, but with it would come a great and immediate improvement in our copyright relations. . . .’

“The Copyright Act of 1976 paved the way for United States adherence to the Berne Convention, which finally came about on March 1, 1989, pursuant to the Berne Convention Implementation Act of 1988.”

Excerpts from a brief filed in the Eric Elred v. Janet Reno case in Washington, D.C. on June 28, 1999. The brief was filed as Amici Curiae on behalf of the Sherwood Anderson Literary Estate Trust; the Sherwood Anderson Foundation; American Society of Composers, Authors and Publishers’ Amsong, Inc.; Association of Publishers, Inc.; Broadcast Music, Inc.; Motion Picture Association of America, Inc.; National Music Publishers’ Association, Inc.; Recording Industry Association of America; and the Songwriters Guild of America (footnotes and legal cites omitted).

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