Copyright Term Extensions (was Re: RIP Jim Baen)
- From: Jose Menendez <ebooks@[redacted]>
- Subject: Copyright Term Extensions (was Re: RIP Jim Baen)
- Date: Thu, 27 Jul 2006 20:21:12 -0400
(I changed the subject line since the last few posts in this thread
haven't been about the late Jim Baen.)
Well, the two weeks our moderator was on vacation certainly went by in
a hurry. I'll try to respond to all the posts that have been addressed
to me as soon as I can. That might take a little while. As I've told a
few people on this list, I use the time-honored hunt-and-peck typing
technique.
On July 12, Michael Hart wrote:
> On Thu, 6 Jul 2006, Jose Menendez wrote:
>
>> On July 4, Michael Hart wrote:
>>
>>> When the first US copyrights started in 1790, they started to
>>> expire in 1829, and in 1831 a patent was issued for the first
>>> of high-speed steam powered printing presses that could take
>>> advantage of a public domain that was just starting to form,
>>> something that would allow an entirely new breed of publishers
>>> to compete with ye olde boy network of entrenched publishing
>>> houses.
>>>
>>> The publishing houses lobbied the US Congress, much as today,
>>> and an extension to the original 14+14=28 year US copyright
>>> was passed, and the new copyright was 28+14=42. . .as mentioned
>>> above.
>>
>> The first copyrights under the Copyright Act of 1790 would have
>> started expiring in 1804 if they weren't renewed--in 1818 if they
>> were renewed. By the time the copyright act was amended in 1831,
>> every copyrighted work published from 1790 to 1802 had already
>> fallen into the public domain. And everything published through
>> 1816 that didn't have its copyright renewed was also already in
>> the public domain.
>
> Actually, the original 1790 US copyright Act could and did protect
> books for up to 29 years, minus one day. . .for the earliest U.S
> best sellers.
Actually, it couldn't and didn't. Here's a link to a PDF copy of the
Copyright Act of 1790 from the U.S. Copyright Office:
http://www.copyright.gov/history/1790act.pdf
It's also included in this PDF that I linked to in my previous post in
this thread:
Public Acts Relating to Copyright Passed by the Congress of the United
States (1790 to 1905)
http://ipmall.info/hosted_resources/lipa/copyrights/Public%20Acts%20Relating%20to%20Copyright%20Passed%20by%20the%20Congress.pdf
If you read the 1790 Act, you'll see that the initial copyright term
lasted "fourteen years from the recording the title thereof in the
clerk's office." You see, back then copyrights did not simply run to
December 31st of their last year. That was a change introduced by
Public Law 87-668 in 1962. (More on that law later.) Since the 1790
Act also provided for a possible renewal term of 14 years, the longest
any copyright could last was 28 years from the date it was recorded.
(For those who may be wondering what "clerk's office" the law was
referring to, it required that copyrights be recorded "in the clerk's
office of the district court where the author or proprietor shall
reside.")
Even if you had been right about copyrights lasting "up to 29 years,
minus one day," look again at what you wrote in the post I replied to:
"When the first US copyrights started in 1790, they started to expire
in 1829 ..."
1829 - 1790 = 39, not 29, Michael.
> The fact that these were expiring was the motivation both FOR
> inventions of new high speed steam powered printing presses, as
> were first patented in 1830. . .there just weren't all that many
> things for great reprinting value before then, as it took a while
> for things to gear up.
The *fact* is, as I noted in my last post, that by the time the 1831
Act was passed "every copyrighted work published from 1790 to 1802 had
already fallen into the public domain. And everything published
through 1816 that didn't have its copyright renewed was also already
in the public domain." And, of course, everything that had been
published in the U.S. before 1790 was also in the public domain by then.
As for your claim about the "motivation" for inventing new printing
presses, here's a book published back in 1902 that you might want to
look at:
"A Short History of The Printing Press And of the Improvements in
Printing Machinery from the Time of Gutenberg up to the Present Day"
http://books.google.com/books?id=1ip2bRHw9u4C&pg=PA3
That book was written by Robert Hoe. Perhaps the last name is familiar
to you. In the 19th century, Hoe & Co. was perhaps the most important
and innovative manufacturer of printing presses in the U.S. Why don't
you read it and see if Hoe ever gave expiring copyrights as the
motivation for coming out with better printing presses, either by Hoe
& Co. or anyone else?
As for your claim that "there just weren't all that many things for
great reprinting value before then," what about the works of Sir
Walter Scott, Jane Austen, William Blake, Lord Byron, Percy Shelley,
Mary Shelley, Samuel Coleridge, and other British authors of the late
18th and early 19th centuries? Take a look at Sec. 5 of the Copyright
Act of 1790:
"And be it further enacted, That nothing in this act shall be
construed to extend to prohibit the importation or vending, Reprinting
or publishing within the United States, of any map, chart, book or
books, written, printed, or published by any person not a citizen of
the United States, in foreign parts or places without the jurisdiction
of the United States."
Basically, it was open season on all foreign works--a situation that
would later infuriate Charles Dickens. Here's an open letter he wrote
in 1842, denouncing "the unjust and iniquitous state of the law in
that country, in reference to the wholesale piracy of British works."
http://www.ibiblio.org/ebooks/Dickens/Int_Copyright.htm
And it stayed that way until the International Copyright Act of 1891.
(Even after that Act, many foreign works didn't receive copyright
protection in the U.S. because of the obstacle course of formalities
that foreign authors had to comply with to secure U.S. copyrights.)
So the copyright term extension in 1831 did *nothing* to prevent "an
entirely new breed of publishers to compete with ye olde boy network
of entrenched publishing houses." In fact, instead of lobbying by all
those "entrenched publishing houses," the 1831 copyright extension was
due primarily to the lobbying of one man: Noah Webster. Look at this
amici curiae brief that was written by some respected scholars--Tyler
Ochoa, Mark Rose, Edward Walterscheid, et al.--and submitted to the
U.S. Supreme Court in the Eldred v. Ashcroft case:
http://cyber.law.harvard.edu/openlaw/eldredvashcroft/supct/amici/historians.pdf
Here's a short excerpt from pages 24 and 25 (34 and 35 of the PDF file):
In 1826, Noah Webster wrote to Daniel Webster,
seeking his assistance in securing a perpetual copyright,
saying "an author has, by common law, or natural justice,
the sole and permanent right to make profit by his own
labor."94 Daniel Webster replied that he would forward the
letter to the House Judiciary Committee, but he added "I
confess frankly that I see, or think I see, objections to
make it perpetual. At the same time I am willing to extend
it further than at present."95
Noah Webster's son-in-law, William W. Ellsworth, was
elected to Congress in 1828 and was appointed to the
Judiciary Committee. Webster "applied to him to make
efforts to procure the enactment of a new copy-right law."96
The Report prepared by Ellsworth for the Judiciary
Committee shows the influence of Webster's views. It
states: "[u]pon the first principles of proprietorship in
property, an author has an exclusive and perpetual right,
in preference to any other, to the fruits of his labor."97
[snip]
Despite this endorsement of perpetual copyright as a
natural right, the bill provided only for an initial term of
28 years and a renewal term of 14 years,99 the term of
which was extended to all subsisting copyrights.100
This article--"Constructing Copyright's Mythology" by Thomas Nachbar,
Associate Professor of Law at the University of Virginia--has much
more about Noah Webster's copyright lobbying, starting back in the
Articles of Confederation period when he went from state to state
successfully urging them to pass state copyright laws.
http://www.greenbag.org/Nachbar%20Constructing%20Copyright.pdf
Regarding the 1831 Act, Nachbar wrote on page 4 of the PDF:
When the bill stalled in the House, Noah
returned to his tried-and-true approach: He
traveled to Washington and lobbied Congress
himself.
When Webster arrived in Washington in
the winter of 1830, he was a huge celebrity. His
Elementary Spelling Book was in use in virtually
all of the nation's classrooms and he had
recently published his long-awaited American
Dictionary of the English Language to wide
acclaim. Although he lobbied for a general
extension of the term of copyright, the point
of Webster's appeal was clear: Copyright term
extension was appropriate compensation for
his contributions to education in America. As
Webster described it to Harriet Fowler, his
daughter:
I found 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.14
Nachbar goes on to relate that Webster gave "a lecture at the House of
Representatives on the evening of January 3, 1831.... The copyright
bill was taken up and passed in the House four days after Webster's
lecture."
Ironically, Michael, considering your claim that it was the
"publishing houses" that lobbied Congress to extend the copyright term
in 1831, one of the opponents of applying the 1831 extension to
previously published works, Rep. Michael Hoffman of New York, argued
Besides, it would be a breach of the contract
with those booksellers who had purchased
copyrights of authors heretofore, and whose
rights would be infringed upon, should the
privileges of the authors of works be extended
by the proposed bill.20 (page 5 of the PDF)
Professor Nachbar elaborated on that:
Breach of contract with the booksellers?
Hoffman was referring to the interests of
publishers, who at the time frequently
benefited by the expiration of the copyright
term. That may sound odd to us - today publishers
like long copyright terms - but that was
not necessarily the case in the 19th or early 20th
centuries. Because the fixed costs of printing
(specifically, the cost of fashioning stereotype
printing plates) a book were high,21 and
because the first publisher would have already
recovered those fixed costs during the copyright
term, the first publisher often retained a
substantial cost advantage over rival printers
after the copyright term expired. The only
difference was that the printer no longer had to
pay royalties to the author, which at the time
were commonly a percentage of sales.22 Thus,
in 1831, a short copyright term was seen as not
only favoring the public over the author, it was
seen as favoring publishers over the author.
Well, to avoid making this post overly long, I'm going to write a 2nd
one to respond to the rest of Michael's post.
Jose Menendez
P.S. Speaking of Noah Webster, take a look at the FAQ on the
Merriam-Webster website:
http://www.m-w.com/info/faq.htm
"Does Merriam-Webster have any connection to Noah Webster?
Merriam-Webster can be considered the direct lexicographical heir of
Noah Webster. In 1843, the company bought the rights to the 1841
edition of Webster's magnum opus, An American Dictionary of the
English Language, Corrected and Enlarged. At the same time, they
secured the rights to create revised editions of the work...."
You might find this question and answer even more interesting:
"When was Merriam-Webster founded?
In 1831, brothers George and Charles Merriam opened a printing and
bookselling operation in Springfield, Massachusetts which they named
G. & C. Merriam Co. The company, which was renamed Merriam-Webster,
Incorporated, in 1982, has been in continuous operation since that
time...."
1831! Hmmm. They managed to start their new business in the very same
year copyright terms were extended, according to your theory, in order
to protect "ye olde boy network of entrenched publishing houses" from
new competition. And just 12 years later, they managed to buy the
rights to one of the most prestigious works published in the U.S. up
to that time--Webster's Dictionary. "Ye olde boy network" must have
been embarrassed. ;)