Primary Sources of Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1831

Commentary on the Copyright Act 1831

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on the U.S. Copyright Act 1831', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Legislating the 1831 Act: Early Stages

4. Legislating the 1831 Act: Later Stages

5. Main Features of the 1831 Act

6. References

1. Full title

An Act to amend the several acts respecting copyrights 1831

2. Abstract

The first major statutory revision of U.S. copyright law. The 1831 Act was a result of intensive lobbying especially by Noah Webster and his agents in Congress. The commentary describes the lobbying process and the significant changes introduced by the new Act. These changes included an extension of the copyright term that applied to existing copyrighted works, the granting of renewal rights to widows and children of deceased authors, and the addition of printed music to the subject matter explicitly recognized by the statute.

3. Legislating the 1831 Act: Early Stages

In 1825 Noah Webster (1758-1843), the American pioneer lexicographer and scholar, visited England. Webster who was closely involved in lobbying for the legislation of some of the state copyright statutes in the 1780s[1] and may have had a hand in bringing about the 1790 federal Copyright Act[2] had both a personal and public interest in copyright. In England he made some intriguing revelations about this topic. First, Webster learned that the original duration of protection under the Statute of Anne, consisting of two fourteen-year terms, was extended in 1814.[3] Unlike the United States that still followed the once renewable fourteen year term that the 1790 Act borrowed from the Statute of Anne, in Britain copyright protection lasted for twenty-eight years, and if the author lived at the end of this term, for the duration of his life. Second, it is possible that Webster learned in England of the British literary property debate of the previous century, during which the claim of perpetual common law copyright was raised and enjoyed a brief success until it was finally rejected by the House of Lords in 1774.[4] Alternatively, Webster simply had his memory refreshed about that historical episode, since pieces of information about the British literary property debate were known to some Americans and were occasionally invoked in public debates about copyright since the late eighteenth century.[5] All of this must have been very interesting to Webster who had just completed the manuscript on which he worked for two decades of An American Dictionary of the English Language. He was approaching seventy, had a large family to support and could hardly expect to live to renew the copyright in his yet unpublished work for the second fourteen year term. The limited duration of the American regime seemed less attractive than ever, while the British model offered lucrative alternatives and a familiar frame of reference on which to rely.

When Webster returned to the United States he set out on the second great copyright lobbying campaign of his life. He directed his initial efforts at the more lucrative option of perpetual protection. In September 1826 Noah Webster wrote to Daniel Webster (1782-1852) who was then a member of the House of Representatives and the head of the Judiciary Committee whose jurisdiction included copyright.[6] Noah Webster had already used the good services of the Congressman whose last name he shared. Two years earlier when he hoped to publish his dictionary through a London publisher, Daniel Webster had been instrumental in obtaining a Congressional duty-exemption for imported copies of the planned book.[7] After describing the failure of his efforts to find a London publisher for his dictionary, Webster shifted to his present concern. He began by a description of the literary property debate admitting that "[s]ince the celebrated decision, respecting copy-right in the highest British tribunal, it seems to have been generally admitted that an author has not a permanent & exclusive right to the publication of his original works, at common law." Webster immediately added that "I firmly believe this decision to be contrary to all best established principles of right & property" and that "I have reason to think such a decision would not now be sanctioned by the authorities of their country." What he based the last observation on Webster did not say. A plea that Daniel Webster's "talents may be exerted in placing this species of property, on the same footing, as all other property, as to exclusive right & permanence of possession" was followed by a lengthy discussion of the nature of copyright as a property right. Webster's arguments in favor of copyright as a property right resembled closely many of those developed by proponents of common law copyright in Britain and were most probably derived from them. The gist of the argument was the proposition that "among all the modes of acquiring property, or exclusive ownership, the act or operation of creating or making seems to have the first claim" and a postulated identity between the physical and mental act of creation. This led to the conclusion which Webster phrased as a set of rhetorical questions:

"Upon what principle, let me ask, can my fellow-citizens declare that the productions of the farmer & the artisan shall be protected by common law, or the principles of natural or social right, without a special statute, & without paying a premium for the enjoyment of their property; while they declare that I have only a temporary right to the fruits of my labor & this cannot be enjoyed without a premium? Are such principles as these consistent with the established doctrines of property & of moral right & wrong among an enlightened people? Are such principles consistent with the high & honorable notions of justice & equal privileges, which our citizens claim to entertain & to cherish, as characteristic of modern improvements in civil society?"

As for "the inexpedience of such a policy, as it regards the discouragement of literary exertions" Webster found he had to say nothing since he could "probably say nothing on this subject" that his addressee had "not saw or thought at least."

Next Webster alluded to the more recent British precedent, mentioning with more approval than precision that the recent British legislation gave "to authors & proprietors of new works an absolute right to the exclusive use of the copy-right for 20 years, with some other provisions which I do not recollect." He was less approving of the fact that "the act names or continues the condition that the author or proprietor shall deposit eleven copies of the works in Stationers' Hall, for the benefit of certain public libraries" since that "premium will often amount to Fifty pounds sterling or more." Finally, Webster came to his concrete request:

"I sincerely wish our legislature would come at once to the line of right & justice on this subject, & pass a new act, the preamble to which shall admit the principle that an author has, by common law, or natural justice, the sole & permanent right to make profits by his own labors, & that his heirs & assigns, shall enjoy the right, unclogged with conditions. The act thus admitting the right, would prescribe the mode by which it should be ascertained, secured enjoyed, & violations of the right be punished, & further perhaps name some provisions for the care of attempts to elude the statute by slight alterations of books, by mutilations & transpositions."

Years later when he wrote his copyright lobbying memoirs Webster, referring to the British statute, described this plea as an attempt to "procure a new law in the United States giving a like extension to the rights of authors."[8] This was probably inaccurate. Perhaps it is possible to read Webster's demand for a legislative recognition of "the principle that an author has, by common law, or natural justice, the sole & permanent right" as an initial bargaining position.[9] Alternatively, Webster may have been seeking merely a declaratory recognition of the perpetual nature of copyright as a natural right, while admitting that the positive legislation prescribing the "mode by which it should be ascertained, secured and enjoyed," could impose a limited duration, albeit one which is longer than the existing one. However, the plain and most probable meaning of Webster's early plea is that he sought, at this stage, a firm legislative recognition of perpetual copyright. Such legislation would acknowledge the existence of an underlying perpetual copyright in common law, supply additional remedies, penalties and enforcement mechanisms, and would make sure that the right remains "unclogged with conditions" such as deposit and perhaps other formal prerequisites for protection.

The last interesting aspect of Webster's plea is his suggestion that the new law would "perhaps name some provisions for the care of attempts to elude the statute by slight alterations of books, by mutilations & transpositions." Traditional copyright protection was limited to the printing and sale of copies, a concept that was understood as creating a very narrow scope of protection whose focus was verbatim reproduction.[10] Webster's reflection on the need to frustrate evasion by slight alterations of protected texts marks the early signs of the expansion of the scope of copyright protection that would take place later in the century.[11] It echoed a similar practical concern expressed by Jedidiah Morse in his 1789 petition to Congress[12] and in the language of the 1802 Act copyright protection for prints and engravings.[13] However, framing the issue in terms of prohibiting evasive reproduction was still situated well within the traditional framework of copyright. In 1831 even copyright maximalists like Webster did not imagine that copyright protection extended much beyond the core domain of reprinting copies or verbatim reproduction.

Daniel Webster's reply[14] was polite but, unlike the previous occasion when Noah Webster sought his help, less than fully accommodating. He promised to lay the letter "before the committee on the judiciary next session" and mentioned that the committee already "has in contemplation some important changes in the law respecting copy-right." The Congressman also agreed that Webster's views of copyright as a property right were "in the abstract... right and uncontrovertible" and that "Authorship is, in its nature, ground of property." What came next was less promising:

"Most people, I think, are as well satisfied (or better) with the reasoning of Mr. Justice Yates, as with that of Lord Mansfield, in the great case of Miller and Taylor. But after all, property, in the social state, must be the creature of law; and it is a question of expediency, high and general, not particular expediency, how and how far the rights of authorship should be protected. I confess, frankly, that I see, or think I see, objections to make it perpetual."

Justice Yates, the dissenter in the 1769 Millar v. Taylor[15] was the great opponent of common law copyright, while Mansfield was its most famous proponent. Daniel Webster siding with Yates, referring to copyright in the social state as a "creature of law" and "a question of expediency" is probably not what Noah Webster hoped for. Writing about common law copyright in 1826 Daniel Webster was unaware of the irony that awaited him just around the corner. In a few years the Congressman, who was also one of the greatest lawyers of his era, would be hired by Henry Wheaton (1745-1848) to represent him in his lawsuit against his successor as the reporter of the Supreme Court, Richard Peters (1780-1848), who republished his reports.[16] Webster in his lawyer persona would discover that the best case for his client, the statutory copyright in his reports was stained by doubt cast on the fulfillment of all statutory prerequisites for protection,[17] was based on the claim of common law copyright. It seems that the argument in the case in favor of common law copyright was done mainly or perhaps exclusively by Webster's co-counsel Elijah Paine. Nevertheless, Webster would find himself part of a team that was arguing passionately in favor of perpetual common law copyright, justifying the views of Mansfield and attacking Yates. This line of argument failed for the most part when in 1834 a Supreme Court majority decided the case and refused to recognize common law copyright in published works in the United States.[18] Daniel Webster, however, who as a Congressman saw objections to perpetual common law copyright, would go down in history as one of its greatest proponents in the great American case of common law copyright-Wheaton v. Peters.

Daniel Webster's reply was not all bad news to Noah Webster. Despite doubts about perpetual protection the former said he was willing to extend the duration of protection "further than at present" and agreed that "it ought to be relieved from all charges." This good news notwithstanding, little progress was made on the proposed copyright reform. Webster engaged in further correspondence on the subject with Daniel Webster and tried to mobilize the efforts of Ralph Ingersoll (1789-1872), a Congressman from Connecticut who managed to refer to the Committee on the Judiciary both the issue of term extension and that of expanding copyright's scope of protection.[19] In his later account Webster also mentioned "a petition signed by many respectable literary men" that was presented to Congress on the matter.[20] But it was all to no avail. Due to either resistance - Webster mentions opposition by "[s]ome members of the committee"[21] - or apathy Congress made little progress on amending the copyright law and extending its duration.

In February 1828 the committee finally reported a short bill that amended the copyright term to twenty-eight years and applied the new term to authors of existing works still protected by copyright.[22] Later that month Representative Gulian Verplanck (1786-1870) from New York submitted a consolidated bill H.R. 140[23] that included "some additional improvements."[24] H.R. 140's subject matter consolidated in one provision "book or books, maps, charts" protected under the 1790 Act,[25] "print and engraving" protected under the 1802 amendment,[26] and the newly added "musical compositions."[27] It provided for one term of twenty-eight years protection that could be extended by a surviving author only for another term whose duration was left unspecified. All the terms of the bill were to apply to existing works still under copyright protection, including the twenty-eight year term and the option of its renewal.[28] The other significant aspect of the bill related to remedies. The existing remedies of forfeiture and a per-page statutory fine (of different amounts for books and all other subject matter) were retained.[29] However, the bill would extend the statutory remedy of damages, previously applied only to manuscripts[30], to all protected subject matter.[31]

Verplanck's bill did not advance and nothing else happened by the end of the session. In April 1828 Webster published and deposited his American Dictionary under the old Act. To add insult to injury, he had to include in the book's copyright notice what he called "an atheistical date," meaning a date stated, as required by the 1790 Act, as the count of years of the United States independence as opposed to the Christian date.[32]

4. Legislating the 1831 Act: Later Stages

The turning point came in 1829 when in the words of Webster "the Hon. Mr. Ellsworth, a member from Connecticut, was appointed one of the judiciary committee."[33] One would hardly guess it from Webster's account, but William Ellsworth (1791-1868) was not simply a representative from Webster's state. Ellsworth, the son of Oliver Ellsworth - the third Chief Justice of the Supreme Court - who was elected as a U.S. Representative in 1829, was married to Emily, Webster's eldest daughter. As Webster's son-in-law he was not only attentive to his wishes, but, rather, had a substantial interest in the value of the copyright of the aging lexicographer's new dictionary. Amending the copyright statute was probably Ellsworth's first legislative initiative after arriving in Washington.[34] Following the strategy of his 1780s campaign Webster instructed Ellsworth to pursue two different tracks: amending the general copyright laws and attempting to attain individual extensions of the existing copyright of Webster's American Speller Book.[35] Ellsworth encountered firm opposition to the latter. He was told by committee members that "such applications had often been made but they had uniformly reported against the applicant."[36] In February 1830 he had to report that "[t]he Judiciary Committee would have reported against your petition had they reported [at all]... [t]here is much more chance for your bill than your petition."[37] Following this assessment Ellsworth pursued the general bill.

On December 17, 1830 he submitted in the name of the committee a bill that was probably a version of Verplanck's earlier consolidated bill accompanied by a detailed report on "Copy-Right."[38] The report stated three main objectives to the revision. The first was consolidating the 1790 Act with the 1802 Act that extended copyright to prints and ridding these statutes from "provisions which are useless and burdensome." By the latter Ellsworth most probably meant some of the formal prerequisites for protection including the deposit duty on which Webster complained earlier in the British context. The second purpose was acting upon the observation that "the law of copy-right ought to extend to musical compositions, as does the English law." This was somewhat enigmatic. The report proposed recognizing musical works under the traditional framework of copyright as regulating the product of the press. It meant only to apply protection to printed sheet music against unauthorized reprints. There was little novelty in this. Despite some early doubts, sheet music was protected against reprint in England since its recognition as statutory subject matter in the 1777 Bach v. Longman.[39] In the United States, some of the earliest copyrighted works under the federal and the state statutes were sheet music and such works were registered for protection on a regular basis. It is unclear what prompted Ellsworth to see a need for "recognizing" copyright in music. Perhaps he learned of some challenge to music as a statutory subject matter, or he may have simply intended to formalize and clarify the existing legal situation. The third purpose, described by the report as the chief one, was to "enlarge the period for the enjoyment of copy-right." The stated reason for the last purpose was, to use a modern term, harmonization, or, in the words of the report, "to place authors in this country more nearly upon an equality with authors [i]n other countries."

To back his harmonization claim and the report's premise that the United States was "very far behind" other nations "in encouraging science and literature, by securing the fruits of intellectual labor" Ellsworth embarked on a comparative survey. According to Webster, Ellsworth obtained his information on other nations' copyright laws by writing "notes to the ministers of the principal European nations, requesting information from each of them respecting the state of copy-right in the nations they represented."[40] The data compiled on the basis of this survey was replete with inaccuracies. Ellsworth correctly stated that the copyright term in Britain was extended to initial twenty-eight years extendable for the life of a surviving author. However, following Webster's earlier claim, he described this extension as a result of Parliament's regret for rejecting perpetual common law protection. Ellsworth also confused the cases stating that this rejection occurred in the 1769 "Millar v. Taylor," instead of the 1774 Donaldson v. Becket.[41] In France, the report claimed, before 1826 copyright "was secured to the author for life, to his widow for life, and then to his children for twenty-six years." In 1826 this period was changed to "fifty years after the death of the author." While the copyright terms in France circa 1830 extended postmortem, the durations mentioned were inaccurate.[42] The report also mentioned that "[i]n Russia, a copy-right is secured for life, and twenty years after" and that in "Germany, Norway, and Sweden the right is held to be perpetual." No German state granted perpetual copyright protection at this time.

Following this comparative survey the report continued into elaborating the two common justifications of copyright: "first principles of proprietorship in property" and the need for "every reasonable inducement to influence men to consecrate their talents to the advancement of science." Elaborating on the former, Ellsworth supplied a natural rights account of copyright as a property right grounded in the intellectual labor of the author. The details of this account were very similar to the one that appeared in the earlier letter from Noah to Daniel Webster and was probably derived from it. The report concluded by observing that the accompanying bill extended copyright protection for twenty-eight years that could be renewed for another fourteen years "if, at the end of the first period, the author be living, or shall leave a family." The additional fourteen year term followed the 1828 bill reported by Verplanck. That bill created a fixed renewal term but did not specify its length. It remains a speculative question whether the rejection of the author's life renewal term as in the immediate British precedent in favor of a fixed fourteen year renewal term had anything to do with Webster's advanced age. It is not unlikely, since both the 1828 and the 1830 bills were written under Webster's inspiration. More conclusive evidence is available for showing that the inclusion of the author's family was a result of a direct intervention by Webster. Webster was troubled by the case of Timothy Dwight (1752-1817), the President of Yale who died during the first term of his copyright and left his family unable to enjoy the value of the renewed term. A handwritten note on his copy of the 1828 bill shows that, having the Dwight case in mind, Webster asked Ellsworth to extend the renewal right to the widow and children of a deceased author.[43] Returning to the report's comparative theme, its last sentence observed, in regard to its proposed term of protection, that "[e]ven this is less than is done in any one of the European States referred to."

Ellsworth encountered difficulties in promoting his new copyright legislation and Webster found that "the efforts of the friends of the bill in Congress" were "unavailing."[44] While Webster describes this situation as the result of apathy and other pressing business, the later legislative history suggests also the possibility of substantial opposition. Ellsworth probably tried to respond to the most predictable argument of such opposition when he included the following passage in the report:

"Your committee do not perceive any reason for denying to authors the protection of the law, to the extent proposed. There is no serious danger of monopoly. The question is, whether the author or the bookseller shall reap the reward. It is for the interest of the author to supply the market upon such terms as will ensure the greatest sale; and he will always do this."

This argument was bad economics but it was somewhat responsive to the traditional complaint against copyright as a monopoly that raised prices and suppressed supply.

The difficulties encountered by the bill persuaded Webster to take a more active part in the lobbying efforts. In December 1830 he traveled to Washington determined to get his new copyright law passed. His initial impression, expressed in a letter from Washington dated December 17 - the date when Ellsworth's report was published - was not bright. According to Webster, Representative Felix Grundy had "doubts about passing a general law for securing literary property, as long as the bill proposes." While Grundy was willing to grant Webster individually "almost anything," "most members of Congress seem not to have considered the subject."[45] What happened next was one of the first celebrity lobbying appearances before Congress. On the evening of January 3, 1831 Webster delivered a lecture before the House of Representatives. The lecture was a great success. Years later Webster would write that his appearance, "as my friends informed me, had no little effect in promoting the object of obtaining a law for securing copy-rights."[46] His daughter Emily, the wife of Ellsworth, who was present, had a similar impression:

"It was an interesting lecture to all who heard it. Some complained it was too short. He spoke nearly an hour. The darkness and humidity of the weather prevented some from attending. I think, however, enough were there to get the bill through. All I believe who heard him were convinced. He said nothing by way of self praise-perfectly indirect. He urged no claims. He said, should the bill for extending the copyright law be carried successfully, he should rejoice for himself, for his family, for his country. I think it will succeed."[47]

In private correspondence Webster was more direct. After the House passed the bill he wrote to his wife: "I rejoice very much in the result. If the bill should pass the Senate, it will add very much to the value of my property."[48] Later he wrote to William Chauncey Fowler, his son-in-law, that "[t]his law will add much to the value of my property, and I cannot but hope I may now make dispositions of copyright which will make me comfortable during the remainder of my life, and secure to Mrs. Webster, if she should survive me, a decent independence."[49]

The effort paid off when on January 6 the House passed the bill. Webster wrote to his wife that it did so "without a division."[50] This was not completely accurate. The bill passed 81 to 31 after some spirited debate. The outspoken opponent of the bill was Michael Hoffman (1787-1848), a Jacksonian from New York. Hoffman, who opposed the term extension and especially its retroactive application to existing copyrighted works, presented an array of reasons to support his position. The bill, said Hoffman, "went to establish a monopoly of which authors alone would reap the advantage to the public detriment," but "[t]he people had rights to be secured as well as authors and publishers."[51] Next Hoffman turned to the patent analogy. A patentee, he said, was subjected to a stringent procedural and substantive requirement of specification and yet "received his patent right, for fourteen years only."[52] Finally, Hoffman constructed a theory of an implied contract between the author and publisher on the one hand and the public on the other:

"There was an implied contract between them and the public. They, in virtue of their copyright, sold their books to the latter at an exorbitant price, and the latter therefore had the right to avail themselves of the work, when the copyright expired."[53]

An implied contract theory was of little help in deciding prospectively how long it should be before the copyright expires. As Hoffman realized, however, the claim was stronger in regard to the retroactive extension that ran the risk of interfering with the reliance interest of various parties. "[I]t would be a breach of contract with those booksellers," Hoffman argued, "who had purchased copyright of authors heretofore, and whose right would be infringed upon, should the privileges of the authors of works be extended as proposed by the bill."[54]

Ellsworth limited his reaction to the common utilitarian argument based on "holding forth to men of learning and genius additional inducements to devote their time and talents to literature and the fine arts."[55] Jabez Huntington (1788-1847), a Representative from Webster's state, Connecticut, defended the bill with a "pure justice" argument, asking why "the author who sold his copyright a week ago be placed in a worse situation than the author who should sell his work the day after the passing of the act?"[56] His example was Webster's dictionary. Huntington was no doubt mindful of Webster's recent impression on the House and of the fact that Webster was sitting at the gallery as he spoke. It was Verplanck who reacted to the implied contract argument and in doing so he turned to the copyright as a natural property right perspective elaborated in the committee report. "The whole argument was founded on a mistake," Verplanck said and "[t]here was no contract." He explained that copyright

"was a right of property, existing before the law of copyrights had been made. That statute did not give the right, it only secured it provided a legal remedy for the infringement of the right and that was the sum of it. It was... merely a legal provision for the protection of a natural right... The bill before the House went merely to extend the remedy to twenty-eight years. It was not the granting of property."[57]

The debate went on. Hoffman rejoined that "he knew of no right but a remedial right" and made a desperate attempt to amend the twenty-eight years term to fourteen.[58] At the end the House voted 81 to 31 in favor of Ellsworth's bill. The hard part was over.

Under the direction of Daniel Webster, now a senator, things went smoothly in the Senate. Before it could pass the bill, however, Noah Webster was troubled by some bad news. The publisher of his dictionary Sherman Converse (1790-1873), with whom he ran into some disagreement, was sent to Washington by yet another son-in-law, Chauncey Goodrich. Goodrich indented Converse to assist the lobbying efforts, but Webster saw things differently. "Fortunately the bill had passed the House of Representatives before he arrived," he wrote, "[a] more unpopular man could not be selected." Ironically, Webster views of Converse's behavior, expressed in private, sounded very similar to Hoffman's concerns about the ills of monopolies:

"If any opposer of the bill had stated to the house how Mr. C. has used or abused his monopoly (as it is called) of my dictionary, he probably would have defeated the bill. I hope no knowledge of it will reach the Senate. Two days ago, a Gentleman from Boston asked me where he could get a copy of my Quarto. He said he could not get it at the booksellers and knew not where to find it. I will not trouble myself to write what I know, nor express my feelings on this subject... the truth is not one fifth part of the United States are supplied with the books"[59]

This sounded quite different than Ellsworth's public contention in the report that the author or the bookseller will always "supply the market upon such terms as will ensure the greatest sale."

By the end of January the Senate passed the bill with no known debate and it was signed into law the next month. Webster's celebrity status, as he was well aware, probably played an important role in passing the 1831 Copyright Act. The fact that most members of Congress grew up studying from his books opened up doors for Webster. He was constantly invited to parties and dinners, including a dinner with President Jackson (1767-1845) who epitomized everything the Federalist Webster detested about democratic politics. Webster found he "could not well avoid" that dinner. Relying on his status, Webster had ample opportunity to convince sympathetic legislators both privately and publicly. As he put it:

"My presence here has, I believe, been very useful and perhaps necessary to the accomplishment of the object. Few members of Congress feel much interest in such a law, and it was necessary that something extra should occur to awaken their attention to the subject. When I came here I found the members of both houses coming to me and saying, they had learned from my books, they were glad to see me, and ready to do me any kindness in their power. They all seemed to think also, that my great labors deserve some uncommon reward."[60]

Webster did not miss an opportunity to capitalize on his status. Before he left Washington he persuaded 31 Senators and 73 Representatives to sign a "testimonial" that praised his work on the American Dictionary and his school books and recommended their use. This testimonial would be printed in the future editions of some of Webster's books and widely used in advertisements.[61] Thus Webster could sum up his ten week visit to Washington as a very fruitful one: he got an important promotional tool, and more importantly, the new Copyright Act he wanted.

5. Main Features of the 1831 Act

The 1831 Copyright Act, as legislated, resembled the 1828 H.R. 140, but it also contained some significant differences. Some of the differences bore the marks of Webster's agents but others that represented moderations of several of the liberalizing measures of H.R. 140 pointed in the opposite direction. The statute consolidated all existing subject matter, namely books, maps, charts, prints, and engravings, as well as the newly added "musical composition."[62] As explained, since a "musical composition" was protected merely against reproduction as printed music, its addition did not represent any significant development and may have been intended only as a clarification of the existing situation. Protection now lasted for twenty-eight years.[63] It could be renewed for another term of fourteen years by a surviving author or if the author died by his widow or children[64]-an addition for which Webster was responsible.

All the terms of the Act, including duration and renewal, were applied to existing works still protected by copyright.[65] The Act, however, probably due to a drafting glitch, created an odd situation in regard to authors of existing copyrighted works who survived the first twenty-eight year term. The Act provided that in the case of an existing work still under protection a surviving author would enjoy a twenty-eight year protection, and in the case the author died before the passage of the Act his heirs, executors and administrators would enjoy the extended duration. In both cases the fourteen-year renewal right was bestowed only on "his widow, child or children." The net outcome was that when the author of an existing work lived after the full twenty-eight year term, he did not have a renewal right. The source of this mistake was most probably Ellsworth who introduced the widow and children renewal right during debate on the floor.[66] Ellsworth probably had in mind his wife's rights in the American Dictionary just copyrighted under the old Act. The unlikelihood of Webster - then seventy-two - surviving till the renewal time probably made Ellsworth focus only on the widow and children.[67] The mistake, however, was temporary since it did not apply to new works.

The 1831 Act imposed a statute of limitation period of two years from infringement,[68] in between the one year period under the existing regime and the three year period proposed by H.R. 140. The Act also retreated from the attempt of the 1828 bill to extend the remedy of damages to all subject matter and retained the existing arrangement where damages were extended by statute only to manuscripts.[69] All other subject matter was protected only by the same remedies of forfeiture and a per-page fine as under the existing regime. This legislative history of the explicit insertion of damages and their subsequent removal stands in some tension with the later firm assertions by commentators that damages under the common law were always assumed to exist as an auxiliary to the statutory remedies.[70] Finally, the Act made some changes to the formal prerequisites for protection. The requirement of publishing the copyright record of new works in newspapers was removed but retained in regard to the renewal term.[71] The form of copyright notice required under the 1802 Act was simplified but it was also clarified that affixation of notice was a condition for protection and that its absence could cause forfeiture.[72] In February 1831 the new Act, including all of those changes to the existing regime and most importantly the term extension, went into effect.

6. References

Governmental papers and legislation

Statutes

Statute of Anne, 1710, 8 Ann. c. 19 (Eng.)

Copyright Act 1790, 1 Stat. 124 (1790)

1802 Amendment, 2 Stat. 171 (1802)

Copyright Act 1831, 4 Stat. 436, 436-39 (1831)

Cases

American

Wheaton v. Peters, 33 U.S. 591 (1834)

British

Bach v. Longman, (1777) 2 Cowper 623 (K.B.)

Donaldson v. Beckett, [1774] 4 Burr. 2408 (H.L.)

Millar v. Taylor, [1769] 4 Burr. 2302 (K.B.)

Books and Articles

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

Patry, William, Copyright Law §1:23 (2007)

Warfel, Harry R. ed., Letters of Noah Webster (New York: Library Publishers, 1953)

Webster, Noah. "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, 1998)

[1] See the commentary for us_1783a.

[2] 1 Stat. 124 (1790); 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.

[3] See Noah Webster, "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), 175.

[4] See Donaldson v. Becket, (1774) 4 Burr. 2408. See also Ronan Deazley's commentary on uk_1774.

[5] See the commentary for us_1789.

[6] See us_1826.

[7] See David Micklethwait, Noah Webster and the American Dictionary (Jefferson N.C.: McFarland, 2000), 193.

[8] Webster, "Origin of the Copy-Right Laws," 175.

[9] Micklethwait, Noah Webster, 213

[10] See the commentary for us_1841.

[11] Ibid.

[12] See House Journal, 1^st Cong., 1^st sess., May 12, 1789, 33. Morse complained "it was an easy matter, by a few alterations & Additions, to destroy the Identity of the Books & the maps." He, therefore, asked to "secure him the exclusive benefit that might arise from said book & maps" and that "it might be so expressed as effectually to secure the Petitioner, against all mutilations, alterations and abridgments... as may operate to his injury." 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, 1972), 511.

[13] 1802 Amendment, §3, 2 Stat. 171 (1802). The section protected prints and engravings against copying "in whole or in part, by varying, adding to or diminishing from the main design."

[14] See us_1826a.

[15] (1769) 4 Burr. 2302 (K.B).

[16] See the commentary for us_1834.

[17] After the Supreme Court decided against common law copyright it remanded the case to the Circuit Court where a Jury eventually found that Wheaton did satisfy all statutory requirements including deposit and notice and returned a verdict in his favor. See ibid.

[18] Wheaton v. Peters, 33 U.S. 591 (1834).

[19] Webster, "Origin of the Copy-Right Laws," 177.

[20] Id. The only trace that could be found in the published record of a similar petition relates to February 25 when Representative Joel Barlow Sutherland presented "a petition of Henry S. Tanner, of the city of Philadelphia, publisher of maps, charts, and geographical works, praying that the laws relative to copy rights may be so amended to protect individuals in their rights." House Journal, 20^th Cong., 1^st sess., February 25, 1828, 344.

[21] Webster, "Origin of the Copy-Right Laws," 177.

[22] See us_1828c; House Journal, 20^th Cong., 1^st sess., February 1, 1828, 238.

[23] See us_1828d; House Journal, 20^th Cong., 1^st. sess., February 21, 1828, 324.

[24] Webster, "Origin of the Copy-Right Laws," 177.

[25] 1 Stat. 124 §1. See also us_1790.

[26] 2 Stat. 171 §2.

[27] See us_1828d, §1.

[28] Id. §§ 14-15.

[29] Id. §§ 5-6.

[30] 1 Stat. 124 §6.

[31] us_1828d, §8.

[32] This was one of Webster's main complaints about the current legislation in his correspondence with Daniel Webster. See Micklethwait, Noah Webster, 214.

[33] Webster, "Origin of the Copy-Right Laws," 177.

[34] H.G. Unger, Noah Webster: The Life and Times of an American Patriot (New York: John Wiley & Sons, 1998), 313.

[35] Webster, "Origin of the Copy-Right Laws," 177.

[36] A letter from William Ellsworth to Noah Webster quoted in Micklethwait, Noah Webster, 214.

[37] A letter from William Ellsworth to Noah Webster quoted in id., 215.

[38] See us_1830.

[39] (1777) 2 Cowper 623 (K.B.).

[40] Webster, "Origin of the Copy-Right Laws," 177-78.

[41] [1774] 4 Burr. 2408 (H.L).

[42] Under the 1793 Literary and Artistic Property Act protection lasted for the life of the author plus ten years. See f_1793. The 1810 Imperial Decree on the Book Trade extended copyright in literary texts for life of the author plus twenty years. See f_1810.

[43] Micklethwait, Noah Webster, 216.

[44] Webster, "Origin of the Copy-Right Laws," 178.

[45] A letter from Noah Webster to Rebecca Webster, quoted in Micklethwait, Noah Webster, 215.

[46] Webster, "Origin of the Copy-Right Laws," 178.

[47] A letter from Emily Webster to Rebecca Webster, in Harry R. Warfel ed., Letters of Noah Webster (New York: Library Publishers, 1953), 392-93.

[48] A letter from Noah Webster to Rebecca Webster, quoted in Micklethwait, Noah Webster, 217.

[49] A letter from Noah Webster to William Chauncey Fowler, in Warfel, Letters, 424-25.

[50] A letter from Noah Webster to Rebecca Webster, quoted in Micklethwait, Noah Webster, 217.

[51] Register of Debates, 21st Cong., 2d sess., January 6, 1831, 423.

[52] Ibid.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid., 424.

[57] Ibid.

[58] Ibid.

[59] A letter from Noah Webster to Rebecca Webster, quoted in Micklethwait, Noah Webster, 217.

[60] A letter from Noah Webster to William Chauncey Fowler, quoted in Warfel, Letters, 424-25.

[61] Micklethwait, Noah Webster, 218; Unger, Noah Webster, 316-17.

[62] Act of February 3, 1831, §1, 4 Stat. 436-39. See also us_1831.

[63] Ibid.

[64] Ibid., §2.

[65] Ibid., §§ 15-16.

[66] Register of Debates, 21st Cong., 2d sess., January 6, 1831, 423.

[67] Micklethwait, Noah Webster, 219-20.

[68] us_1831, §13.

[69] Ibid., §9.

[70] Joseph Story, Commentaries on Equity Jurisprudence in England and America, §932, 2^nd ed. (Boston: C.C. Little and J. Brown, 1839), 2:210; George Ticknor Curtis, A Treatise on the Law of Copyright (Boston: C.C. Little and J. Brown, 1847), 313.

[71] us_1831, § 3.

[72] Ibid., 5.