Primary Sources of Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1790

Commentary on the Copyright Act 1790

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on the U.S. Copyright Act 1790', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Legislating the First Federal Copyright Act

4. The 1790 Copyright Regime

5. The 1790 Copyright Act, the Statute of Anne, and Authorship-based Copyright

6. The 1790 Copyright Regime in Action

7. References

1. Full title

An Act for the Encouragement of Learning, by securing copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned 1790

2. Abstract

The first federal copyright act. The act created for the first time a national, general copyright regime in the United States. The commentary describes the legislative history of the act, the main features of the regime it created and its close similarity to the British Statute of Anne. It concludes by briefly surveying the known information about copyright practice in the first decade of the federal regime.

3. Legislating the First Federal Copyright Act

The U.S. Constitution of 1789 established a new federal Congress and vested it with the power of legislating in the fields of patent and copyright.[1] Soon after Congress met for its first session on May 4, 1789 petitioners, aware of this new national power, started besieging Congress with pleas for protection of inventions and literary works. Interestingly, all the early applications petitioned Congress for individual legislative privileges, rather than general enactments. Apparently, the petitioners were familiar with the traditional patterns of ad hoc state grants. They assumed that the Constitution simply transferred the familiar power to the national legislature and that Congress, like state legislatures, would grant individual privileges.

The first two of these petitions arrived little more than a month after Congress first met. On April 15 Thomas Tudor Tucker (1745-1828) from South Carolina presented to the House[2] a petition from David Ramsay (1714-1815) asking for protection of his recently written The History of the American Revolution,[3] and The History of the Revolution of South Carolina from a British Province to an Independent State.[4] Ramsay, a physician and historian from Charleston, South Carolina, was a member of the state's legislature and of the Continental Congress.[5] Reminiscent of petitions to state legislatures in the preceding decade, Ramsay explained in his petition that "in reason and justice he ought to be entitled to any Endowments arising from the sale of the aforementioned works as a compensation for his labour and expense." Ramsay also relied on "finding that the same principle expressly recognized in the new Constitution." [6]

The other petition that was presented on the same day was from John Churchman (1753-1805). Churchman from Nottingham, Pennsylvania, a surveyor and a cartographer, "invented several different methods by which the principles of magnetic variation are so explained, that a latitude of a place being given, its longitude may be easily determined."[7] In modern terms Churchman's petition was on the borderline between patent and copyright. Churchman developed a theory of the earth's magnetic poles.[8] He elaborated his theory in The Magnetic Atlas[9] that he promised would be an invaluable aide in calculating longitudes. Churchman asked Congress that "a law may be passed for vesting in the petitioner, his heirs and assigns, an exclusive right of vending of spheres, hemispheres, maps, charts and tables, on his principles of magnetism."[10] In other words, Churchman wanted the exclusive right of selling globes, maps, and atlases based on his theory.

Congress's initial reaction to the petitions was favorable. The two petitions were referred to a three-man committee whose members were Tucker, Alexander White (1738-1804) of Virginia, and Benjamin Huntington (1736-1800) of Connecticut. On April 20 Tucker reported the committee's view in regard to Churchman's petition "that such efforts deserve encouragement, and that a law should pass to secure Mr. Churchman, for a term of years, the exclusive pecuniary emolument to be derived from the publication of these several inventions."[11] Churchman's additional plea in the petition for financing an expedition to Baffin's Bay, in order to investigate his theory, elicited a debate about the depleted state of national financial resources, and even some doubts about Congressional power under the intellectual property clause of the Constitution to support such an undertaking.[12] But there was no objection to granting Churchman an exclusive privilege. As for Ramsay the committee recommended that "a law should pass to secure to him the exclusive right of publishing and vending, for a term of years, the two works mentioned in the petition."[13] The committee's recommendation to grant individual privileges to Churchman and Ramsay was approved by the House.[14]

At this point, however, developments took a different turn. The House concluded its discussion of Tucker's report by ordering that "a bill or bills be brought in, making a general provision for securing to authors and inventors the exclusive right of their respective writings and discoveries."[15] Congress used language directly taken from the constitutional clause to order a preparation of general copyright and patent bills. The preparation of this legislation was entrusted to a committee consisting of Huntington, Lambert Cadwalader (1742-1823) from New Jersey, and Benjamin Contee (1755-1815) from Maryland. There is no explicit indication why the House made the important decision to legislate general regimes. One consideration may have been whether the legislation was administrable. Members of Congress may have understood that the advantages of national protection were likely to attract a large number of petitioners nationwide. The busy members of the national legislature were bound to find the flood of petitions, several times the magnitude of those handled by state legislatures, and each requiring individual evaluation, a heavy burden. If this was a consideration, it was soon vindicated by other petitions for individual privileges that kept arriving to Congress as general legislation was being prepared in committee.[16] The other likely consideration that may have triggered the turn to general regimes was existing British and state precedents. The British Statute of Anne, of which many Americans were aware, created a general statutory copyright regime in Britain since 1710.[17] General copyright statutes that were legislated in twelve of the states in the 1780s[18], and which were used in practice at least in some of them, supplied a closer institutional precedent.

Whatever its reason, the House decision to order the preparation of general legislation signified a crucial turn from ad hoc privileges to general, standardized copyright and patent regimes. This was an important institutional development in American copyright and patent law and practice. In the future Congress occasionally would legislate private bills and grant individual privileges or time extensions. However, from April 20, 1789 a general regime became the firm rule and ad hoc privileges the exception. The specific petitions for individual privileges submitted to the first Congress were never officially rejected. Despite some further activity, however, none of these petitions crystallized into an enactment. They were gradually abandoned, probably because they were seen as redundant in view of the legislation of general patent and copyright regimes.

On June 23, 1789 Huntington reported from the three-man committee H.R. 10, a bill to promote the progress of science and useful arts, by securing to authors and inventors the exclusive right to their respective writings and discoveries.[19] The most interesting feature of H.R. 10 to modern eyes was that it was a joint bill that attempted to treat patent and copyright under one legislative roof. This joint treatment, however, may have been more formal than substantive, since the two fields were governed by completely distinct sections and there were no provisions common to both copyright and patent. Some conjecture that H.R. 10 was based on a draft bill written and published by Noah Webster (1758-1843) in June 1789, but there is no direct evidence of that.[20] The basic scheme of the copyright part of H.R. 10 was similar to the Statute of Anne. It awarded rights in two cases. In the case of published books the right owners were authors of "any book or books" who have not transferred their "copies," or booksellers, printers or other persons who have "purchased or acquired the copy or copies of any book or books in order to print or re-print the same." In the case of unpublished existing or future books the right recipients were the "author or authors" and their assignees. In regard to published works, entitled persons were to have "the sole right and liberty of such book or books, or the copy or copies of such book or books, for the term of fourteen years," presumably from the date the act was to go into force. In regard to unpublished and future books, authors and assignees were to have "the sole liberty of printing and re-printing such book or books for the term of fourteen years" from publication. Offenders were defined as anyone who would "print, re-print or import, or cause to be printed re-printed or imported... any such book or books, without the consent of the proprietor;" and anyone who "knowing the same to be so printed or re-printed... shall sell, publish or expose to sale, or cause to be sold, published or exposed to sale, and such book or books." The only remedies were forfeiture of all offending copies and a penalty of an unspecified amount per-page to be divided between the right owner and the person "who shall sue for the same." There were requirements of registration and publication of registration. After expiration the right was to "return to the author or authors of such books, if they are living, for another term of fourteen years." The bill was read several times but its consideration was postponed for the next session.[21]

When the second session started in January 1790 Congress renewed its interest in the subject. On January 8, 1790 President Washington in his address to a joint meeting of Congress reminded the legislators that "there is nothing that can better deserve your patronage than the promotion of science and literature."[22] Both the House and the Senate agreed. The Senate in its formal reply to Washington's address observed that "Literature and Science are essential to the preservation of a free Constitution: the measures of Government should, therefore, be calculated to strengthen the confidence that is due to that important truth."[23] The House in its own reply concurred that "the promotion of science and literature will contribute to the security of free Government; in the progress of our deliberations we shall not lose sight of objects so worthy of our regard."[24]

More mundane activity on this front resumed on January 11^th. Elias Boudinot (1740-1821), who as the President of the Continental Congress received copyright petitions that resulted in recommendation to the states to enact copyright laws, reported on unfinished business from the first session including H.R.10.[25] A few days later Thomas Hartley (1748-1800) reminded the House again of the bill that "was solicited by some very ingenious men, to secure to them their writings and inventions."[26] An important development occurred on January 25 when Aedanus Burke (1743-1802) from South Carolina suggested splitting the joint bill and to "appoint a committee for the purpose of securing literary property." Burke infused his motion with a sense of urgency, observing that "several gentlemen had lately published the fruits of their industry and application, and were every hour in danger of having them surreptitiously printed." He added that "he had been informed that it had taken place in some instances already" and referred to an alleged reprint of part of Jedidiah Morse's (1761-1826) American Geography.[27] Burke suggested separating patent and copyright and dealing with the latter first on the assumption that "a short bill would be sufficient for the purpose, because it is almost as easy to ascertain literary as any other kind of property; whereas there is some difficulty in deciding upon improvements or inventions in the useful arts."[28] Burke did not explain why he found copyright more similar to other kinds of property and less likely to be controversial than patent. As it subsequently happened, a patent act was passed before a copyright act. The house referred the matter to a committee consisting of Burke, Huntington, and Cadwalader. Three days later Burke presented a separate copyright bill, H.R. 39, a bill for securing the copy-rights of books to authors and proprietors.[29]

After two readings of the bill a Committee of the Whole House, introduced several amendments and recommitted the bill to a committee consisting of Boudinot, Roger Sherman (1721-1793) and Peter Silvester (1734-1808).[30] On February 25 Boudinot introduced a new amended bill H.R. 43, bill for the encouragement of learning by securing the copies of maps, charts, and books, and other writings to the authors and proprietors of such copies, during the times therein mentioned.[31] After two readings H.R. 43 was placed before a Committee of the Whole House.[32] On April 29-30 the bill was debated, amended, passed and sent to Senate.[33] Senate introduced a few amendments proposed by a committee comprised of Senators Read (1733-1798), Paterson (1744-1808) and Johnson (1732-1819). Among the more significant amendments were: striking out "and other writings" from the bill's title and throughout its text; changing the renewal date from six months after expiration to six month before that date; and shortening the period for filing a lawsuit from two years to one from the date of infringement. On May 14 the Senate passed the amended bill and sent it back to the House.[34] The House agreed to the amendments[35] and on May 31, 1790 President Washington signed the new Copyright Act into law.

4. The 1790 Copyright Regime

Despite several changes and amendments, the 1790 Copyright Act as passed contained the same basic features as the first bill, H.R.10. It applied to any "Map, Chart, Book or Books." It extended protection to the authors of published works or to the assignees of their "Copy-right," as well as to authors of unpublished and future works. Persons entitled to protection had to be citizens or residents of the United States. The entitlement conferred was "the sole right and liberty of printing, reprinting, publishing and vending such Map, Chart, Book or Books for the term of Fourteen years." The entitlement was renewable for another term of fourteen years by a surviving author who followed a re-registration procedure six months before expiration. The act also explicitly protected manuscripts against unauthorized printing or publication.

The act imposed several formalities. Persons seeking protection were required to register the work with the Clerk's office of the local federal District Court. No affixation of copyright notice to copies of the work was required. A notice requirement would be added only in 1802.[36] However, right owners were required to publish the registration record in public newspapers. There was also a requirement to deposit a copy of the work with the Secretary of State.

Infringers were defined as any person who shall "print, reprint, publish or import, or cause to be printed, reprinted, published or imported ... any copy or copies of such Map, Chart and Book or Books without the consent of the Author or the proprietor thereof;" as well as any person who "knowing the same to be so printed, reprinted or imported, shall publish sell or expose to sale, or cause to be published, sold or exposed to sale any Copy of such Map, Chart, Book or Books." Unlike modern copyright's strict liability standard, the sale entitlement was subject to the requirement of the offender's knowledge of the infringing character of the sold copy. This was not untypical within early Anglo-American copyright thought that often emphasized knowledge and intent.[37]

The statutory remedies were very limited. Infringers were subject to forfeiture of all infringing copies. There was also a statutory penalty of fifty Cents per page, to be divided between the "Author or Proprietor... who shall sue for the same" and the United States. This penalty could be recovered in an action for debt commenced within one year from infringement. Those were all the remedies provided for in the statute in regard to published works. There was no mention of damages or equitable relief. This limited choice of remedies was highlighted by the fact that in regard to manuscripts the statute explicitly provided that an infringer "shall be liable to suffer and pay to the said Author and proprietor all damages occasioned by such injury to be recovered by a special Action on the Case." This could have been easily interpreted as intending to limit remedies in cases of published works to forfeiture and the statutory penalty.

Although the early practice of the lower courts in copyright cases is still shrouded in ambiguity, it seems that American judges followed British courts[38] and read the full array of remedies into the copyright regime. In the first reported copyright case in the United States - the 1798 Morse v. Reid[39] - The Circuit Court for the District of New York virtually ignored the statutory remedy. In an infringement case, involving Jedidiah Morse's American Geography,[40] it ordered an accounting of the defendant's profits arising from the infringement and a monetary relief based on it. The case record leaves it somewhat ambiguous whether the exact remedy was the equitable one of disgorgement of defendant's profits or common law damages for plaintiff's lost profit, but it was not the statutory penalty. The court simply awarded the remedy with no discussion or attempt to construe the Copyright Act. It is possible that the court assumed like Lord Kenyon in Beckford v. Hood decided that year in England that "nothing could be more incomplete as a remedy than those penalties alone," and concurred in his observation that "I cannot think that the Legislature would act so inconsistently as to confer a right and leave the party whose property was invaded without redress."[41] It is also possible that no thought was devoted to the apparent restricted selection of statutory remedies. Later nineteenth century commentators flatly asserted the applicability of non-statutory remedies with little discussion or support. Joseph Story (1779-1845) in his Commentaries on Equity Jurisprudence seems to have taken it for granted that both the common law remedy of damages and the equitable one of account were available in copyright infringement cases.[42] George Ticknor Curtis (1812-1894) asserted in his 1847 treatise that: "No action on the case for damages is provided by statute; but there can be no doubt that here, as well as in England, such an action lies at common law." [43] He gave no reason whatsoever to this confident assertion. Only in 1908, when the question was of much less practical importance did the Supreme Court reject Beckford v. Hood and ruled in regard to common law remedies that copyright protection was limited to the remedies provided in the statute.[44]

5. The 1790 Copyright Act, the Statute of Anne, and Authorship-based Copyright

The 1790 copyright Act was modeled after the British 1710 Statute of Anne. Despite the lack of explicit evidence, this conclusion is borne out by the striking similarity between the two enactments. Americans were familiar with the Statute of Anne. They referred to it in petitions to the Continental Congress[45] and in arguments in support of the intellectual property constitutional clause,[46] and they modeled many of the state copyright statutes after it, sometimes lifting entire paragraphs verbatim.[47] It is possible that the Statute of Anne influenced the 1790 act indirectly through the texts of some of the state statutes. Yet the close similarity between the British and federal statutes on the level of structure, technical details and even specific language, suggests that the framers of the 1790 act worked directly from a version of the Statute of Anne.

The similarity begins with the title. The statute of Anne was named An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned. The title of the 1790 act was 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. The 1790 Act dispensed with the preamble of the Statute of Anne but everything that followed was almost identical.

Both acts applied to existing, published works as well as to unpublished and future works, although the Statute of Anne, unlike the American act, prescribed a longer term of twenty one years for the former category. The Statue of Anne defined an offender as the person who

"shall Print, Reprint, or Import, or cause to be Printed, Reprinted, or Imported any such Book or Books, without the Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, Signed in the Presence of Two or more Credible Witnesses; or knowing the same to be so Printed or Reprinted, without the Consent of the Proprietors, shall Sell, Publish, or Expose to Sale, or cause to be Sold, Published, or Exposed to Sale, any such Book or Books, without such Consent first had and obtained, as aforesaid"

The American statue defined an offender as a person who

"shall print, reprint, publish, or import, or cause to be printed, reprinted, published, or imported from any foreign Kingdom or State, any copy or copies of such map, chart, book or books, without the consent of the author or proprietor thereof, first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed, reprinted, or imported, shall publish, sell, or expose to sale, or cause to be published, sold or exposed to sale, any copy of such map, chart, book or books, without such consent first had and obtained in writing as aforesaid"

Unlike the Statute of Anne the American Statue explicitly provided protection to manuscripts. In Britain manuscript protection was a judge-made law created in the 1741 Pope v. Curl as a logical extension or an auxiliary to the statutory protection of published works.[48] The American drafters may have been aware of Pope v. Curl or they may have been simply cognizant of the practical need of manuscript protection as a collateral to copyright in published works.

Both acts provided only for the remedies of forfeiture of infringing copies and a statutory penalty calculated on a per-page basis to be divided between the plaintiff and the crown or the United States. There was an interesting divergence in regard to the identify of such plaintiff. The statute of Anne by awarding half the sum of the statutory penalty to "to any Person or Persons that shall Sue for the same" probably contemplated qui tam actions. Qui tam actions in which plaintiffs with no direct interest in the case could bring actions and enjoy compensation were common enforcement mechanisms in seventeenth century England and its colonies. H.R.10, the first American bill, retained the qui tam action approach by splitting the penalty sum between "the author... or the proprietor" and "any person or persons who shall sue for the same." The final act, however, dispensed with this mechanism and split the fine between the United States and "the author or proprietor of such map, chart, book or books, who shall sue for the same."

The American Copyright Act followed the British statute in requiring registration and deposit of the protected work, although it modified and liberalized some of the technical details of these requirements. The legislative history of the registration sections strongly supports the conclusion that the American drafters were borrowing directly from the Statute of Anne. The British statute ordered registration in the "Register-Book of the Company of Stationers." It also provided for a complex mechanism for resolving cases in which the Clerk of the Stationers Company "shall Refuse or Neglect" to register works. The reason for this unusual concern was that the Statute of Anne dissolved the long-held monopoly enjoyed by members of the Stationers' Company on publishing and, in effect, turned the Company's register book into a public record open to any person entitled to copyright protection under the new regime. Against this background there existed a palpable concern that the Company might not cooperate and refuse to register works of non-members. This context was absent in the United States seventy years later where registration was committed to the clerks of the federal district courts. Nonetheless, the drafters of H.R.10 unwittingly retained a similar mechanism for dealing with refusal to register. Only in later drafts was this anachronistic part eliminated from the statute.

Another complex and by 1790 anachronistic element of the statute of Anne is sometimes pointed out by commentators as an important difference from the American statute. This was the part of the Statute of Anne that allowed a body composed of several high-ranking public officials to control prices of protected works in cases of "unreasonable" prices set by copyright owners. The inclusion of this arrangement was typical of traditional concerns of English political thought over monopolies as the cause of exorbitant prices, but the price control mechanism was probably never used in practice. The 1790 Copyright Act did not include such a mechanism. Yet rather than constituting a difference, this fact implies the possibility that the American drafters were working with an updated version of the British statute. In 1739 the price control mechanism was formally repealed in Britain and it did not exist by the time Americans were drafting their own statute.

The Copyright Act followed the Statute of Anne by setting a statutory term of fourteen years and allowing a surviving author one renewal for an additional term of fourteen years. This was another quirk of history. The term of fourteen years probably made its way to the Statue of Anne from the 1624 Statute of Monopolies,[49] where it functioned as the maximum duration allowed to royal monopolies for new inventions that were exempted from the general ban on monopoly grants. According to Edward Coke's Institutes this term was probably chosen because it was twice the standard apprenticeship term.[50] More than a century and a half later in America the fourteen year term still enjoyed the aura of tradition.

In short, the statute of Anne served as a general inspiration, as well as a source of basic concepts and specific technical details for the 1790 Copyright Act. More generally, the two enactments created similar regimes that expressed copyright's transitory stage between its past as the publisher's economic privilege and its future as a general right based on the principle of ownership by authors of their creative work. The 1790 Copyright Act established on the national level the two innovations of the state statutes in the preceding decade.[51] It created a general regime of universal rights, rather than ad hoc privileges. It also placed authors, rather than publishers or printers, at the center of copyright. Authors were the formal, original recipients of copyright and all other entitlements were derivative of those of authors. Similarly, the justifications of the regime and the discourse surrounding it were, by this time, firmly focused on authors as the creators of intellectual works.

However, the new authorship-based regime of 1790 was still strongly grounded in traditional forms and concepts. Essentially, the regime lifted the publisher's privilege, generalized it and conferred it upon authors. Copyright law, however, contained no elaboration at all on who an author was, what were his defining features, or what could count as a work of authorship. Similarly, although copyright was now talked of as the rights of authors in their intellectual production, the entitlement under the 1790 framework was still the "liberty to print," which was roughly understood as the right to print verbatim copies of a protected text. There was no elaboration of a concept of ownership of an intellectual work as general control. Finally, copyright, despite the explicit extension of protection to maps and charts was still the unique regulation of the book trade broadly defined. Copyright was still limited to the product of the press. No recognition or claim of protection in other fields, based on the general principle of rights in the creative product of the mind yet appeared. All of those fundamental features of authorship-based copyright would gradually appear during the nineteenth century.

6. The 1790 Copyright Regime in Action

The performance of the 1790 copyright regime in action, the way it was actually used an experienced by authors, publishers or printers, is understudied. We know relatively little on how the formal legal rules and procedures were translated into actual social practices such as publication arrangements, patterns of commercialization, or author-publisher relationship during the first decade. However, a few studies of the copyright registration records[52] recovered some interesting facts about the early copyright regime in practice.

Particularly interesting is the small relative share of printed works that were registered and therefore protected by copyright. Out of more than fifteen thousand printed works published in the United States between 1790 and 1800 less than eight hundred were copyrighted.[53] It is plausible to conjecture that the relative share of works whose protection was renewed after fourteen years was even smaller.[54] Entire categories of printed works like almanacs, sermons and newspapers, some of which were the staples of early American printers, are completely absent from the early registration records. Thus, in practice, copyright was not only limited to the book trade; it was relevant only to a small subset of that trade's everyday business. Many of the items printed in the early days were seen as ephemeral and probably did not justify the trouble and expense of obtaining and enforcing copyright protection. The background rules of copyright played a crucial role in this respect. Obtaining, renewing and enforcing protection in a system rife with formalities and procedures was not trivial. This formed a filter that created incentive to register only in a small number of works seen as substantial, expensive to make, or likely to be enduringly successful. The early copyright system did not apply to most published, printed communication, let alone other expressive forms. Much of the development of print culture and democratic discourse in the early republic happened outside the boundaries of copyright protection.[55]

A second significant fact is the dominance of practical or useful works within early copyrighted works. Most substantial novels of the period were copyrighted, but works of original literature or poetry constituted only a small fraction of registrations. Practical or utilitarian books were the most common. Of the first one hundred entries in Pennsylvania, almost one half were textbooks, manuals atlases and commercial directories. The trend continued in later registrations.[56] American copyright may have been entangled with an ideology that celebrated the intellectual genius and the original author, but the most commonly copyrighted works had very little to do with the stereotypical image of original authorship in the romantic sense.

Third, the early copyright records reveal an interesting dynamic of registration by authors and proprietors. While authors could register copyright in their own works, proprietors were usually publishers or printers who registered works, presumably after the rights were assigned by the author. The relative share of registering proprietors was substantial from the start, but it steadily rose in the first decade. In Massachusetts between 1790 and 1794, forty-five books were registered by authors and twenty-five books registered by proprietors. Between 1795 and 1800, there were sixty-two registrations by authors and sixty-three by proprietors. The same trend occurred in other states, including important publishing centers such as Pennsylvania and New York.[57] This data demonstrates the gap between copyright's official public image and its actual practices. By 1790 copyright was seen and justified as rights of authors in their works. In reality, right from the early days of the federal regime, a substantial number and often the majority of rights were registered, held and used by publishers. To be sure, assessing the exact effect of copyright on authors would require a currently unavailable study of the exact assignment and compensation schemes between authors and publishers and their change over time. Still the author-proprietor data suggests, at a minimum, a more complex picture than that of the 1790 regime as simply one of authors' rights. Similarly, many other questions about the actual commercial, cultural and social practices of authors, publishers, printers and readers under the formal early copyright regime remain unanswered and call for future research.

7. References

Governmental papers and legislation

Statutes

Statute of Anne, 8 Anne c. 19.

Statute of Monopolies, 21 Jac. 1, c. 3.

Copyright Act 1790, 1 Stat. 124 (1790).

1802 Amendment, 2 Stat. 171 (1802).

Cases

American

Globe Newspaper Co. v. Walker, 210 U.S. 356, 362-367 (1908).

Morse v. Reid, 5 Collections of the Massachusetts Historical Society 123 (1798).

British

Beckford v. Hood [1798] 7 TR 620.

Pope v. Curl [1741] 2 Atk. 342.

Books and Articles

Abrams, Howard B. "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright." 29 Wayne Law Review 1119-92 (1983)

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

Coleman, E.E. "Copyright Deposit at Harvard." Harvard Library Bulletin 10 (1956): 135

De Pauw, Linda Grant, Charlene Bangs Bickford, and Helen E. Veit, eds. Documentary History of the First Federal Congress, 1789-1791, vol. 4 (Baltimore: Johns Hopkins University Press, 1986)

Felcone, Joseph F. "New Jersey Copyright Registrations, 1791-1845." Proceedings of the American Antiquarian Society 104 (2004): 51

Gilreath, James. "American Literature, Public Policy and the Copyright Laws before 1800." In Federal Copyright Records, 1790-1800 (Washington, D.C.: U.S. Government Printing Office, 1987), xv-xxv

Kaplan, Benjamin. An Unhurried View of Copyright (New York and London: Columbia University Press, 1967)

Maher, William J. "Copyright Term, Retrospective Extension, and the Copyright Law of 1790 in Historical Context," 49 J. Copyright Soc'y U.S.A. 1021 (2002)

McGill, Meredith G. "Copyright in the Early Republic." A History of the Book in America 2 (forthcoming 2007)

Patry, W., Copyright Law §1:19 (forthcoming 2007)

Patterson, Lyman Ray. Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968)

Tanselle, G. Thomas. "Copyright Records and the Bibliographer." Studies in Bibliography 22 (1969): 77

Walterscheid, Edward C., "Understanding the Copyright Act of 1790: The Issue of Common Law Copyright in America and the Modern Interpretation of the Copyright Power," 53 J. Copyright Soc'y U.S.A. 313 (2006)

[1] See the commentary for us_1789.

[2] House Journal, 1^st Cong., 1^st sess., April 15, 1789, 14.

[3] David Ramsay, The History of the American Revolution (Philadelphia: R. Aitken & Son, 1789).

[4] David Ramsay, The History of the Revolution of South Carolina from a British Province to an Independent State (Trenton: Collins, 1785).

[5] See Arthur H. Shaffer, To Be an American: David Ramsay and the Making of American Consciousness (Columbia: University of South Carolina Press, 1991).

[6] See us_1789.

[7] House Journal, 1^st Cong., 1^st sess., April 15, 1789, 14.

[8] In its earlier stages the theory was based on the assumption of the presence of two celestial bodies, other than the moon, in orbit around the earth. Later Churchman revised the theory to account for the possibility that the magnetic poles were located under the surface of the earth. Churchman suffered much ridicule from the scientific community in the United States and England, but he also attracted support from figures like Thomas Jefferson and obtained some fame abroad. See Silvio A. Bedini, "History Corner: John Churchman and his Magnetic Atlas," Professional Surveyor 20, no. 10-1, 2 Pts. (December 2000).

[9] John Churchman, The magnetic atlas, or Variation charts of the whole terraqueous globe (London: Darton and Harvey, 1794).

[10] House Journal, 1^st Cong., 1^st sess., April 15, 1789, 14.

[11] House Journal, 1^st Cong., 1^st sess., April 20, 1789, 18.

[12] Annals of Congress, 1^st Cong., 1^st sess., 178-80.

[13] House Journal, 1^st Cong., 1^st sess., April 20, 1789, 18.

[14] Ibid.

[15] Ibid.

[16] Bruce W. Bugbee, The Genesis of American Patent and Copyright Law (Washington D.C.: Public Affairs Press, 1967), 133-37.

[17] See Ronan Deazley's commentary on uk_1710.

[18] See the commentary for us_1783.

[19] See us_1789c. No known copy of H.R.10 has survived. The version reproduced here is of a typescript of a typescript of the original. In 1955 Wilma Davis, copyright office librarian, found a damaged typescript of the bill in the library of the office. She believed this typescript was made by Thorvald Solberg, U.S. register of copyright 1897-1930, who may have had a copy of the original in his private library before it was destroyed by fire in 1918. Ms. Davis had another typescript prepared. In 1968 the original typescript was not found in the Library of Congress where it was left. Linda Grant De Pauw, Charlene Bangs Bickford, and Helen E. Veit eds., Documentary History of the First Federal Congress, 1789-1791, vol. 4 Baltimore: Johns Hopkins University Press, 1986, 519. Frank Evina, Senior Copyright Specialist at the Copyright Office, located and provided the typescript reproduced here.

[20] G. Thomas Tanselle, "Copyright Records and the Bibliographer," Studies in Bibliography 22 (1969): 77, 85-86; David Micklethwait, Noah Webster and the American Dictionary (Jefferson, N.C., 2000), 79.

[21] House Journal, 1^st Cong., 1^st sess., August 17, 1789, 80.

[22] Senate Journal, 1^st Cong., 2^nd sess., January 8, 1790, 103.

[23] Ibid., January 11, 1790, 105.

[24] House Journal, 1^st Cong., 2^nd sess., January 12, 1790, 139.

[25] Ibid., 137.

[26] Annals of Congress, 1^st Cong., 2^nd sess., 1093.

[27] Morse submitted a petition for protection of this work during the first session of Congress on May 12, 1789. House Journal, 1^st Cong., 1^st sess., May 12, 1789, 33.

[28] Annals of Congress, 1^st Cong., 2^nd sess., 1080.

[29] To date, no copy of H.R. 39 has been found.

[30] House Journal, 1^st Cong., 2^nd sess., February 2, 1790, 151.

[31] Ibid., February 25, 1790, 163. The bill is reproduced in De Pauw, Bickford, and Veit, Documentary History of the First Federal Congress, 526.

[32] House Journal, 1^st Cong., 2^nd sess., February 26, 1790, 164.

[33] Ibid., April 30, 1790, 205-6.

[34] Senate Journal, 1^st Cong., 2^nd sess., May 14, 1790, 140.

[35] House Journal, 1^st Cong., 2^nd sess., May 17, 1790, 217.

[36] 2 Stat. 171 (1802).

[37] Oren Bracha, "Owning Ideas: A History of Anglo-American Intellectual Property "(S.J.D diss., Harvard Law School, 2005), 321, 323-24.

[38] Beckford v. Hood (1798) 7 TR 620. See uk_1798a.

[39] A report of the case can be found in 5 Collections of the Massachusetts Historical Society 123 (1798). See generally John D. Gordan, Morse v. Reid: The First Reported Federal Copyright Case, 11 L. & Hist. Rev. 21 (1993).

[40] After his petition for individual protection came to a naught, Morse registered his work for federal protection.

[41] Beckford v. Hood, 627.

[42] 2 Joseph Story, Commentaries on Equity Jurisprudence in England and America 210, §932 (2nd ed.1839).

[43] George Ticknor Curtis, A Treatise on the Law of Copyright (Boston: C.C. Little and J. Brown, 1847), 313.

[44] Globe Newspaper Co. v. Walker, 210 U.S. 356, 362-67 (1908) ("the purpose of Congress was not only to create the right granted in the statute, but also to create the specific remedies by which alone such rights may be enforced"). The practical importance of the question had declined by then because damages were not provided by the statute only in regard to certain categories of works.

[45] See the commentary for us_1783.

[46] See the commentary for us_1789.

[47] See the commentary for us_1783.

[48] 2 Atk. [1741] 342.

[49] 21 Jac. 1, c. 3.

[50] Edward Coke, Institutes of the Laws of England (London: M. Flesher, 1644), 3:184. Coke thought that the term should have been seven years, namely, one term of apprenticeship.

[51] See the commentary for us_1783.

[52] For sample registrations from the various states see us_1790a-1800.

[53] James Gilreath, "American Literature, Public Policy, and the Copyright Laws before 1800" in Federal Copyright Records, 1790-1800 (Washington, D.C.: U.S. Government Printing Office, 1987), xxii. William Maher suggests an even lower rate of registration. William J. Maher, "Copyright Term, Retrospective Extension, and the Copyright Law of 1790 in Historical Context," 49 J. Copyright Soc'y U.S.A. 1021, 1027 (2002). Christopher Springman observes that both Maher and Gilreath may be underestimating the registration rate, but finds that during the first decade the rate was at most 10%-20%. Christopher Springman, "Reform(aliz)ing Copyright," 57 Stan. L. Rev. 485, 503 (2004).

[54] William Maher examined the somewhat different question of registration of works protected under the state statute for federal protection. He found only 12 works subject to pre-existing state copyright law were re-registered under the 1790 Act. This was a small fraction (1.74%) of the works registered during that period. Maher, "Copyright Term," 1023, 1025. Christopher Springman discusses the low renewal rates in later periods. Springman, "Reform(aliz)ing Copyright," 519-21.

[55] See Meredith G. McGill, "Copyright in the Early Republic," A History of the Book in America 2, eds. Robert A. Gross and Marry Kelly (forthcoming 2007).

[56] Gilreath, "American Literature," xxii. See also Joseph F. Felcone, "New Jersey Copyright Registrations, 1791-1845," Proceedings of the American Antiquarian Society 104 (2004):51, 54-5.

[57] Gilreath, "American Literature," xxiii.