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;
What does it mean, when did this right come to exist, why is it important, how has the right changed over time, and in the US and the world.
Some say that it existed as a
common law or natural right long ago, and the Statute of Ann is what began the change to this right. As a matter of fact early US Courts gave weight to the common law right, and consulted the Statue of Ann, in finding equitable solutions to the first infringement claims to copyrights.
In America prior to the first Federal Statute, copyrights were created and enforced in each state according to state law. The US Constitution gave Americans the first Federal Statutory law of Copyright, and empowered the congress to secure those rights. Their job was in essence to create the bargain, that would would protect copyrights, so that authors would feel secure in their investment in capitals and labor. The new federal law then preempted all state laws enforcing copyrights.
In the attempts of congress to secure those rights, as is now, it might be impossible to create laws that foresee each and every issue. So in the end it is the judicial system that ultimately writes the final laws. The idea behind the preemption of state laws was that everyone would have equal rights, no matter which state you were in, and all of the laws would be enforced the same. In reality this does not happen, because of individual judicial interpretation of the statutes. While I believe that judges endeavor to be fair and equitable, I think it not their job to write the laws in the end. It is in fact the "JOB OF CONGRESS"
Least you think that it is only today that those in need of
copyright protections from those that seek to pirate the fruit of the tree. You be wrong. Seemingly as by the the first Treatise on the Law of Property in Intellectual Productions
THE LAW OF PROPERTY INTELLECTUAL PRODUCTIONS IN GREAT BRITAIN AND THE UNITED STATES.
EMBRACINGCOPYRIGHT IN WORKS OF LITERATURE AND ART, AND
PLAYRIGHT IN DRAMATIC AND MUSICAL
COMPOSITIONS.
BY
EATON S. DRONE.
BOSTON:
LITTLE, BROWN, AND COMPANY
copyright 1879
PREFACE MEANINGLESS, inconsistent, and inadequate statutory provisions,
ambiguous, erroneous, and conflicting decisions cover
the law of copyright with doubt, difficulties, and confusion.
Some of the evils which result from these causes are but seeming
ones, which disappear when explained, or lose their force
when exposed. Others are real, and of such a nature that
they can be overcome only by the power of the legislature.
This condition of the law is doubtless due in a measure to the
facts that the nature of literary property is somewhat peculiar,
that the law relating to it may be regarded as yet in its infancy,
and that it is comparatively seldom that courts are
called upon to determine its meaning. But much of the error
and confusion which exist can be accounted for only on the
theory that the statutes have been often drawn by incompetent
persons, and often interpreted by those who, however
learned in other brandies, have had but a limited knowledge
of the law of copyright.
The English statutes relating to this subject are but a piece
of chaotic patchwork, extending over a century and a half.
There are in force not fewer than fourteen acts passed at various
times, from 1735 to 1875. Some of these have been
drawn in such ignorance or disregard of others, important
provisions have been enacted in such loose, ambiguous language,
incongruous and meaningless clauses are so common, so many questions
have been carelessly left in doubt for judicial determination, that
often the law can be determined only with the greatest difficulty,
and sometimes its meaning baffles all recognized rules of interpretation.
These statutes were rightly condemned by the Royal Commissioners on
Copyright, when, in their recent report to Parliament, they said: " The
law is wholly destitute of any sort of arrangement, incomplete,
often obscure, and even when it is intelligible upon long
study, it is in many parts so ill-expressed that no one who
does not give such study to it can expect to understand
it."
The statutes of the United States are free from some of the
faults, which exist in those of England. But as the former
have in many parts been blindly copied from the latter, the
same defects are often found in both. That judges in the front rank
of jurists should sometimes err and disagree in determining the
meaning of the legislature, even when most clearly expressed,
is but natural. In the judicial interpretation of such statutes as
have been spoken of, much greater allowance is to be made for
mistakes and conflicting opinions. But for much of the error
found in this branch of the law the courts alone are responsible.
Decisions have been made against fundamental principles
which would not have been violated had their governing
force been known, against well-grounded authorities which
would have been followed had their application been seen,
against statutory provisions which would not have been disregarded
had they not been overlooked. One decision has been
based on the authority of another when the controlling facts
and principles were so different in the two cases that both
judgments could not be alike without one being wrong. Opinions,
not only wrong in principle but without binding force as
authorities, have been blindly followed as supposed precedents.
Judicial dicta, as uncalled for as erroneous, have been carelessly
expressed in one case only to become in another the
corner-stone of a doctrine still more mischievous. It is hardly
necessary to mention that what has been said applies to the
smaller and not to the greater part of the decisions on this
subject. But the former arc so many, their influence so far-
reaching, the groundless theories affirmed or recognized in
some of them so plausible, that the whole body of the law of
copyright is more or less affected by them.
If every decision, however clearly wrong it may be, is to be
taken as representing the law until it shall be overruled, then
must the rights of authors be in endless doubt and confusion.
But if, error being eliminated wherever found, the law is to be
determined alone by those authorities whose soundness will
stand every test, and by those principles whose governing force
is recognized, then, excepting some defects which can be
reached only by legislation, will the law of copyright become
reasonably clear, simple, and harmonious. Under the circumstances
explained, to give the results of the decisions without
testing their soundness or explaining their bearing, would be
to put forth a digest, whose worth would be as little as the
effort required to make it. The task of the juridical writer is
to set forth the true principles which govern the law ;.to point
out the proper meaning of the statutes ; to show what decisions
are right and what are wrong ; to explain what is doubtful
or obscure ; and, generally, to give the law in a form as true,
clear, systematic, and harmonious as it is in his power to do.
He is without authority to say what construction shall be
given to statutes, as he is without power to overrule erroneous
decisions. But he may point out the true meaning of the law,
and show wherein it has been wrongly interpreted. When
this has been done, the judicial affirmance of what is right and
the rejection of what is wrong will be in many cases but a
question of time. In jurisprudence, as elsewhere, error once
exposed must sooner or later be eradicated. The maker of a
treatise should never lose sight of the fact that his duty is to
give the law as it is. But this cannot always be done
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Oliver Wendell Holmes’s classic account of this process of legal mutation in the first chapter of The Common Law remains one of the most suggestive:
A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs or needs of primitive time establish a rule or formula. In the course of centuries the custom, belief or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters upon a new career. The old form receives a new content, and in
time even the form modifies itself to fit the meaning which it has received.
