Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1783a

Commentary on the Connecticut Copyright Statute 1783

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on the Connecticut Copyright Statute 1783', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Lobbying the States

4. The Continental Congress Resolution

5. State Statutes: Justifications, Institutional Details, and Practice

6. References

1. Full title

An Act for the Encouragement of Literature and Genius 1783

2. Abstract

The first general copyright statute to be enacted in the American states. Copyright Statutes that created general copyright regimes on the state level were passed in twelve out of thirteen of the states between 1783 and 1786. The states' copyright enactments were the result of local lobbying by various authors and their political allies, and of a resolution by the Continental Congress recommending such state legislation. They mark a rising interest in the United States in copyright protection and an ideological reorientation toward authors' rights and interests. The commentary describes the lobbying process on the state and national level, the emergence of an articulated ideology of authors' copyright based on natural rights and utilitarian justifications, and the main institutional features of copyright under the state statutes.

3. Lobbying the States

After Independence the United States experienced, for the first time, a surge of interest in the protection of authors' rights in their writings. The first wave of such interest focused on the state, rather than the national, level and consisted of two main developments: the issuance of ad-hoc legislative privileges to authors, and the lobbying for an enactment of general copyright statutes. The state statutes were a result of a growing awareness of the need to "encourage" local authors and learning, intense lobbying on the state and national level, and the existence of an established institutional model in the form of the British Statute of Anne.[1] The statutes were promoted and justified on the basis of three characteristic arguments: the natural rights of authors, the social benefit of promoting learning, and the national interest of the young republic in establishing its literary and cultural status among the leading civilized nations. As opposed to the sporadic colonial "encouragements" of printing projects, authors rather than printers or publishers now became the figures dominating copyright thought.

In 1782 Thomas Paine (1737-1809) remarked in his open letter to the Abbé Raynal that "in all countries where literature is (protected, and it never can flourish where it is not,) the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth." He predicted that "[t]he state of literature in America must one day become a subject of legislative consideration."[2] The first move toward general copyright legislation occurred in the next year in Connecticut and involved an active role by Noah Webster (1758-1843). Webster a journalist, a writer and a schoolmaster had recently completed his A Grammatical Institute of the English Language,[3] a basic school textbook designed to replace the outdated and English-centric New Guide to the English Tongue by Reverend Thomas Dilworth (d. 1780).[4] Webster intended to receive protection for his book before publishing it. For that purpose he embarked on a lobbying journey that, in no small measure thanks to Webster's later recording of the events, made him the figure most associated with the states' copyright legislation. In reality, it seems that in various states other authors seeking protection and public figures whose support they managed to procure played a role at least equal to Webster's in obtaining copyright statutes. Webster started his campaign in 1782 with a journey to Pennsylvania. According to Webster the purpose of the journey was "showing my manuscripts to gentlemen of influence and obtaining a law securing to authors the copy-right of their publications."[5] The Pennsylvania state legislature was out of session, but Webster did manage to interest a few "gentlemen of influence" with his ideas, as the Continental Congress was in session in Independence Hall.[6] Webster continued to New-Jersey and found the legislature out of session there too. He tried to check the prospects of local copyright protection with Governor William Livingston (1723-1790) who after consulting with his council "gave him very little encouragement."[7] The New Jersey trip, however, was not entirely fruitless. Webster met Samuel Stanhope Smith (1751-1819)-then a professor of theology in the College of New Jersey (Princeton University) and later the institution's president. Smith found Webster's book "very proper for young persons in the country" and provided him with a letter of recommendation. The letter recommended protection to Webster, appealed to precedents in European countries and mentioned both the rights of authors and the public utility of protection. The letter remained ambiguous, however, in regard to whether Smith was recommending a general copyright regime or simply individual grants:

"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 production; 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 tat it does no damage 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."[8]

Webster's next attempt in October 1782 was in Connecticut and apparently involved only a request for a private copyright bill and not for a general copyright statute. The petition was submitted too late in the session, but three months later Webster enlisted the help of state Representative John Canfield (1740-1786) whose daughter had happened to be one of Webster's past pupils.[9] In his letter to Canfield Webster again concentrated on private protection, declared he would desert his project "unless it shall meet with public approbation, encouragement and security," and struck a nationalist chord: "America must be as independent in literature as in Politics, as famous for arts as for arms."[10] By that time Connecticut was already presented with petitions for private protection by others, most notably John Ledyard.[11] Webster found that the necessity of his effort "was superseded" as on January 29 1783 the state responded by passing An Act for the Encouragement of Literature and Genius, the first American general copyright law securing to authors for fourteen years (once renewable) the copyright in their writings.[12] The exact legislative history of the statute and the events that caused the shift toward a general statute remain obscure, but according to Webster it was "obtained by the petition of several literary gentlemen in that state."[13]

In the next months two other states - Massachusetts and Maryland - enacted their own general copyright laws, apparently with little or no role played by Webster. Massachusetts passed its law in March 1783, probably due to lobbying by several writers and their political allies.[14] Webster attributed the enactment to Reverend Timothy Dwight (1752-1817), a Massachusetts state Representative and the future president of Yale College.[15] Others possibly involved were Joel Barlow (1754-1812), Jeremy Belknap (1744-1798), and Thomas Paine.[16] Maryland passed its law in mid-1783,[17] Webster's later erroneous recollection that he visited Annapolis for that purpose in 1785 notwithstanding.[18]

Thus, the movement toward general copyright laws began at the states, before any development on the national front. By the time of the Continental Congress resolution on the matter of copyright laws three state acts were already in force.

4. The Continental Congress Resolution

The problems of state copyright in a national union where publication began to emerge out of past patterns of localism and a national market for books started appearing were probably evident early on. Webster's journeys for attaining state protection of his work that continued throughout the 1780s vividly demonstrated those problems. The general understanding, however, seems to have been that the limited powers of the Continental Congress under the Articles of Confederation did not authorize it to legislate in the field.[19] Thus prior to 1787 the main goal of lobbying on the national level was attaining a Congressional recommendation to the states. As its journal indicates, the Continental Congress received "sundry papers and memorials from different persons on the subject of literary property."[20] The best known and probably most influential one was from Joel Barlow. Barlow was Webster's classmate at Yale. After a wartime service as a chaplain for the Massachusetts brigade he settled in Hartford, where he failed to find a patron to support his writing.[21] In January 1783 Barlow wrote Elias Boudinot (1740-1821), the president of the Continental Congress, about the topic of copyright protection.[22] Barlow elaborated three main grounds for the need of copyright protection to authors. First, he appealed to a natural rights argument that presented the author's creative labor as the basis of a property right. "There is certainly no kind of property, in the nature of things," Barlow wrote, "so much his own as the works which a person originates from his own creative imagination," and concluded that "it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works."[23] Second, Barlow offered a utilitarian argument, explaining that "we are not to expect to see any works of considerable magnitude... offered to the Public till such security is given" and referring to two authors who already suppressed their works due to fear of piracy.[24] Third, the two arguments were supported by an appeal to nationalist-patriotic sentiments. Barlow explained that the new nation had already demonstrated its worth and love of liberty to the world, but "[a] literary reputation is necessary in order to complete her national character." Furthermore, he argued that "it is more necessary, in this country than in any other, that the rights of authors should be secured by law," because "we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage."[25] Finally, Barlow invoked the precedent of the British Statute of Anne[26] and suggested that "the passing of statutes similar to this" be recommended to the states by Congress.[27]

Congress presented with the petitions by Barlow and others and with a copy of the recently passed Connecticut statute[28] referred the matter to a three-person committee.[29] On April 28, 1783 the committee submitted a favorable report that included a strong endorsement of both the natural-rights and the utilitarian justification of authors' copyright. The committee found that:

"nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of the arts and commerce"[30]

Congress adopted the committee's recommendation and resolved, in more practical terms, to recommend the states "to secure to the authors or publishers of any new books, not hitherto printed, being citizens of the United States, and to their executors, administrators and assigns the copyright of such books" for a minimal duration of two fourteen year terms.[31] The resolution was not, of course, binding on the states, but it did place the copyright legislation on the states' agenda, supply a strong ideological support for it, and at least in some states was the driving force behind copyright enactments.

5. State Statutes: Justifications, Institutional Details, and Practice

After the Continental Congress resolution, lobbying on the state level continued for both general copyright statutes and individual legislative protection. Webster played an active role in this process in several of the states.[32] By April 1786 twelve states passed general copyright statutes.[33] Delaware remained the only holdout despite the fact that it was lobbied for such legislation.[34] The details of the states' statutes varied greatly, but they all bore close family resemblance. Some, as was common in that period, borrowed extensively from each other. The statutes were also modeled closely after the Statute of Anne[35] that was frequently invoked in support of such legislation and whose text was accessible to Americans. The seventy year old British statute thus supplied both a strong justification for an authors-based copyright regime and an institutional model for it.

One important aspect of the statutes was the preamble included in each statute except those of Virginia and South Carolina. The Maryland preamble was modeled closely after the Statute of Anne and Pennsylvania's was copied from that statute almost verbatim, but others provided some more original attempts to justify copyright and articulate the reasons supporting it. The preambles contained various mixes of two justifications for copyright: the natural right of the author in the fruits of his labor, and the encouragement of learning for the benefit of the community. The Massachusetts preamble, though one of the more elaborate ones, is representative:

"Whereas the improvement of knowledge, the progress of civilization, the public weal of community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: as the principle encouragement such persons can have to make great and beneficial exertions of their 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 produced by the labor of his mind."[36]

The utilitarian encouragement of learning rationale followed closely the official justification of the 1710 Statute of Anne. The authors' natural rights arguments, however, reflected the ideological developments of the intervening seventy years. These arguments derived from the discourse that emerged in England mainly around the literary property debate[37] and was later echoed in the United States as part of the lobbying for ad-hoc state protection[38] and during the Continental Congress consideration of copyright.

The phrasing of the subject matter protected by the statutes varied. It included: "books" in South Carolina; "books and writings" in Maryland", "books and pamphlets" in New Jersey, New York, Pennsylvania, and Virginia; "books, treatises and other literary works" in Massachusetts, New Hampshire, and Rhode Island; and "books, pamphlets, maps and charts" in Connecticut, North Carolina and Georgia. It is unclear whether these formal variations had any importance in practice. Three of the states - Connecticut, Georgia, and New York - provided explicit protection for unpublished manuscripts. Interestingly, these three states echoed past debates in Britain and foreshadowed future ones in the United States by providing that their acts shall not "affect, prejudice or confirm the rights which any person may have to the printing or publishing of any book or pamphlet, at common law, in cases not mentioned in this act."[39] The provisions thus contemplated the possibility of common law copyright protection but remained neutral about the question of its existence or scope.

Despite the natural rights rhetoric and the talk of "securing" authors' property in the preambles, the statutes were full of limitations and formalities imposed as prerequisites to protection. Ten states limited protection to United States citizens, residents or inhabitants, the exceptions being Maryland and South Carolina. There were also reciprocity requirements. Seven states protected only authors whose home states legislated copyright laws. Maryland and Pennsylvania went further and suspended the validity of their acts until all states in the union would legislate similar statutes.

All but three states (Massachusetts, New Hampshire and Rhode Island) required registration of a protected work, although in two cases - Maryland and South Carolina - registration may not have been a precondition for protection. Only Massachusetts and North Carolina required deposit of copies of the work. Pennsylvania was the only one to require a copyright notice printed in copyrighted books.

The entitlement protected by the acts were different variations on Connecticut's "sole Liberty of printing publishing and vending" copies, which denoted the traditional understanding of copyright as the right to print and sell a copy of a text. With one exception the duration of protection consisted of different variations on the Statute of Anne's terms. Seven states provided for a fourteen year term, renewable once for the same duration. Three states opted for one twenty one year term. North Carolina had only one fourteen year term and New Hampshire created the original duration of twenty years.

The remedies provided by the statutes consisted of forfeiture of the infringing copies and various hybrids of penalties and damages. Seven state statutes provided for penalty/damages of double the value of the infringing copies. Three states defined a range of a monitory sum to be paid to the copyright owner. Maryland and South Carolina followed the Statute of Anne and created a per-sheet penalty. The paid sum was to be divided between the person who "shall sue for the same" and the state in South Carolina, and to be transferred in whole to the plaintiff in Maryland. The phrasing of this remedy implied the possibility of a qui tam action, enabling suit and recovery by any person whether the copyright owner or others.[40]

Four states required copyrighted books to be sold in sufficient copies and five required reasonable prices for such books. Underlying these requirements was the view elaborated by the Georgia statute that "it is equally necessary for the encouragement of learning that the inhabitants of this state be furnished useful books &c. at reasonable prices." The price control mechanism and the concerns of the evils of monopolies behind it were taken directly from the Statute of Anne. The English discourse of monopolies and the concerns that developed in the context of the monopolistic Stationers' Company and the London book trade were at work, shaping early American understanding of copyright seventy years later.

Little is known about the actual practice under the state copyright statutes. It is possible that the statutes of Pennsylvania and Maryland never went into effect. As mentioned, these statutes suspended their operation until all states legislated similar enactments, a condition that thanks to Delaware's holdout never came about. There are however several known Maryland registrations[41] and a few Pennsylvania books bearing copyright notice and indicating registration in the state.[42] It is possible that these were "deferred registrations" that collected the information anticipating the future coming into effect of the statutes. It is unclear whether the state statutes were used in practice in all relevant states, although a handful of records from some have been uncovered.[43] In total there are fewer than forty known copyright registrations prior to 1790 - a small fraction of the works published in the United States during this period. Noah Webster, Andrew Law and Joel Barlow are responsible for many of these registrations. The general copyright statutes did not entirely supersede legislative grants. In some cases, despite the existence of the state statutes, individual legislative privileges were issued to specific individuals.[44] Any existing attractiveness of copyright protection under states law disappeared when the federal Copyright Act[45] was legislated in 1790 and the local regimes, not extensively drawn on to begin with, fell out of use.

The main significance of the short-lived states' copyright statutes was thus not in creating a widely-used functioning copyright system. These statutes were, rather, important landmarks in American copyright history in two other respects. First, the states' statutes and the deliberative process surrounding them on both the state and the federal level stimulated the articulation and consolidation of new author-based copyright ideology in the United States. Together with the individual legislative privileges the statutes were the main social site where the new concept of authors' copyright and its two main rationales - natural rights and public utility - appeared for the first time in the United States. This prepared the ground and defined the ideological terms for the federal developments that would soon follow. Second, the states' statutes created a precedent of a concrete institutional model for copyright protection. The state enactments were the first time that a general copyright regime, as opposed to ad hoc privilege grants, was created in the United States. Their legislation situated the Statute of Anne as the dominant framework for such a general copyright regime and familiarized Americans, some of whom would be later involved with creating the federal regime, with its details. By the time that the United States embarked on creating a national copyright system it was only natural that the Statute of Anne would provide the basic template for its creation, at least in part thanks to the Americanization of the statute's model in the previous decade.

6. References

Governmental papers and legislation

An Act for the Encouragement of Literature and Genius, 1783 Conn. Acts 133

An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions for twenty - one years, 1783 Mass. Acts 369

An Act respecting literary property, 1783 Md. Acts ch. 34

An Act for the promotion and encouragement of literature, 1783 N.J. Acts 325

An Act for the encouragement of literature and genius, and for securing to authors the exclusive right and benefit of publishing their literary productions for twenty - one years, 1783 N.H. Acts 161

An Act for the purpose of securing to authors the exclusive right and benefit of publishing literary productions for twenty - one years, 1783 R.I. Acts 6

An Act for the encouragement and promotion of learning, 1784 Pa. Acts 306

An Act for the encouragement of the arts and sciences, 1784 S.C. Acts 49

An Act for securing literary property, 1785 N.C. Acts 563

An Act securing to authors of literary works an exclusive property therein for a limited time, 1785 Va. Acts 30

An Act for the encouragement of literature and genius, 1786 Ga. Acts 323

An Act to promote literature, 1786 N.Y. Acts 99

Barlow, Joel, Letter to Elias Boundinot, in Papers of the Continental Congress, 4:369 (No. 78)

Continental Congress. Journals of the Continental Congress, 1774-1789. Edited by Worthington C. Ford et al. 34 vols. Washington, DC, 1904-37

Books and Articles

Bugbee, Bruce Willis. The Genesis of American Patent and Copyright Law. (Washington D.C.: Public Affairs Press, 1967)

Coleman, Earle Edson. "Copyright Deposit at Harvard." Harvard Library Bulletin 10 (1956): 135-41

"Copyrights and Patents Granted by South Carolina." South Carolina Historical and Genealogical Magazine 9 (1908): 56-58

Crawford, Francine. "Pre-Constitutional Copyright Statutes." Bull. Copyright Soc. 23 (1975): 11-37

Donner, Irah. "The Copyright Clause of the U.S. Constitution: Why Did the Framers Include it With Unanimous Approval?" Am. J. L. Hist. 36 (1992): 361-378

Lowens, Irving. "Copyright and Andrew Law." Papers of the Bibliographical Society of America 53 (1959): 150-9

Micklethwait, David. Noah Webster and the American Dictionary (Jefferson N.C.: McFarland, 2000)

Nachbar, Thomas B. "Constructing Copyright's Mythology." In Green Bag 6, 2d (2002): 37-46

Paine, Thomas. Paine to the Abbé Raynal, In Political Works of Thomas Paine, Vol. 1. London: W.T. Sherwin, 1817

Patry, William, Copyright Law §1:17 (forthcoming 2007)

Tanselle, George Thomas. "Copyright Records and the Bibliographer." In Stud. in Bibliography 22 (1969): 78-124

Webster, N., "Origin of the Copy-right Laws of the United States." In A Collection of Papers on Political, Literary and Moral Subjects. New York: Webster & Clark, 1843

Unger, H.G., Noah Webster: The Life and Times of an American Patriot (New York: John Wiley & Sons, 1931)

[1] See uk_1710.

[2] Paine to the Abbé Raynal, in Political Works of Thomas Paine, vol. 1 (London: W.T. Sherwin, 1817), iv.

[3] Noah Webster, A Grammatical Institute of the English Language (Hartford: Hudson & Goodwin,1783).

[4] Thomas Dilworth, New Guide to the English Tongue: In Five Parts (Hartford: Hudson & Goodwin, 1754).

[5] Noah Webster, "Origin of the Copy-right Laws of the United States," A Collection of Papers on Political, Literary and Moral Subjects (New York: Webster & Clark, 1843), 173.

[6] Harlow G. Unger, Noah Webster: The Life and Times of an American Patriot (New York: John Wiley & Sons, 1931), 55.

[7] Webster, "Origin of the Copy-right Laws," 173.

[8] See us_1782. Also reproduced in Webster, "Origin of the Copy-right Laws," 173-74.

[9] David Micklethwait, Noah Webster and the American Dictionary (Jefferson N.C.: McFarland, 2000), 57-8. Webster used an intermediary in his contacts with Canfield.

[10] Reproduced in Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4.

[11] See us_1783. Hellmut Lehmann-Haupt, The Book in America: A History of the Making, the Selling, and the Collecting of Books in the United States, 2^nd ed. (New York: R.R. Bowker, 1951), 82.

[12] An Act for the Encouragement of Literature and Genius, 1783 Conn. Acts 133.

[13] Webster, "Origin of the Copy-right Laws," 174.

[14] See us_1783d. An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions for twenty - one years, 1783 Mass. Acts 369.

[15] Webster, "Origin of the Copy-right Laws," 174.

[16] William Patry, Copyright Law §1:17 (forthcoming 2007).

[17] See us_ 1783e. An Act respecting literary property, 1783 Md. Acts ch. 34.

[18] Webster, "Origin of the Copy-right Laws," 175.

[19] Webster, "Origin of the Copy-right Laws," 174. For an elaboration of the Continental Congress powers, or rather lack of powers under the Articles of Confederation, in the context of intellectual property see: Edward C. Walterscheid, "To Promote The Progress Of Science And Useful Arts: The Background And Origin Of The Intellectual Property Clause Of The United States Constitution," 2 J. of Intellectual Property Law 1, 4-9 (1994).

[20] Journals of the Continental Congress 1774-1789, ed. Worthington C. Ford et. al. (Washington DC, 1904-37): 24: 326.

[21] James Woodress, Yankee ‘s Odyssey: The Life of Joel Barlow (Philadelphia: Lippincott, 1958), 74-7.

[22] See us_1783b. Papers of the Continental Congress, 1774-1789, 4:369 (No. 78).

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] See uk_1710.

[27] Ibid.

[28] Papers of the Continental Congress, 4: 94 (No. 24).

[29] See Papers of the Continental Congress, 2:113 (No. 36); 24 Journal of the Continental Congress 180; us_1783c.

[30] See Journal of the Continental Congress 24: 326-27; Papers of the Continental Congress, 4:91 (No. 24); us_1783c.

[31] Ibid.

[32] Webster, "Origin of the Copy-right Laws," 174-75.

[33] The statutes were passed in the following order: Connecticut, January 1783; Massachusetts, March 1783; Maryland, April 1783; New Jersey, May 1783; New Hampshire, November 1783; Rhode Island, December 1783; Pennsylvania, March 1784; South Carolina, March 1784; Virginia, October 1785; North Carolina, November 1785; Georgia, February 1786; New York, April 1786.

[34] Webster, "Origin of the Copy-right Laws," 175.

[35] See uk_1710.

[36] us_1783d. An Act for the purpose of securing to authors the exclusive right and benefit of publishing their literary productions for twenty - one years, 1783 Mass. Acts 369.

[37] See e.g. uk_1747; uk_1769; uk_1774a; uk_1774e.

[38] See e.g. us_1781.

[39] See us_1786a. An Act to promote literature, 1786 N.Y. Act 99.

[40] The same was true in regard to North Carolina that provided for a payment of double the value of the infringing copies to be divided between the state and "him who shall sue." See us_1785a.

[41] George Thomas Tanselle, "Copyright Records and the Bibliographer," Stud. in Bibliography 22 (1969): 77,84; Irving Lowens, "Copyright and Andrew Law," Papers of the Bibliographical Society of America 53 (1959): 150-9.

[42] Tanselle, "Copyright Records," 84-5.

[43] See Tanselle, "Copyright Records," 83-5; Lowens, "Copyright and Andrew Law"; Earle Edson Coleman, "Copyright Deposit at Harvard," Harvard Library Bulletin 10 (1956): 135; "Copyrights and Patents Granted by South Carolina," South Carolina Historical and Genealogical Magazine 9 (1908): 56; The Public Records of the State of Connecticut, vol. 5, 245-46, 459 (L.W. Labaree ed. 1943); Ibid., vol. 7, 87; W. J. Maher, "Report of 1790-1800 Copyright Registrations Found to be "Old Works" in RE their State Copyright Status" (research paper, University of Illinois Archives, 2005).

[44] See e.g. a 1784 Connecticut grant to Joel Barlow. The Public Records of the State of Connecticut, vol. 5, 458-59 (Charles J. Hoadly ed., 1895).

[45] See us_1790.