Blackstone and Copyright and Patent as (Limited) Property:

Here, by the way, is Sir William Blackstone -- often a good guide to background legal principles as the Framing generation understood them -- on property in copyrights and patents:

There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions; so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it, appears to be an invasion of that right.

Now the identity of a literary composition consists entirely in the sentiment and the language: the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent.

This consent may perhaps be tacitly given to all mankind, when, an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway: but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert, and that, in the other, the whole property, with all it's exclusive rights, is perpetually transferred to the grantee.

On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; yet from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.

The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials meaning thereby the mechanical operation of writing, for which it directed the scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man's canvas, the same law gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, Martial, and Statius. Neither with us in England hath there been (till very lately) any final determination upon the right of authors at the common law.

But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration: and a similar privilege is extended to the inventors of prints and engravings, for the term of eight and twenty years, by the statute 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac., I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee.

I posted in the thread below (among other thought) some points about Justice Thompson's 1834 dissent arguing for a recognition of common-law copyright -- but I forgot to note that as I recall he cited both Blackstone AND Justice Story's commentaries!

I actually find it a rather compelling case, overall; although it's anathema to today's thinking of copyright...
6.12.2007 2:07pm
I seem to recall that Blackstone kind of had to "scramble" to "adjust" to both Millar and then to Donalson, and I believe some have tried to dismiss his writing (in both directions!) on these grounds.
6.12.2007 2:11pm
Zathras (mail):
"8 Ann. c. 19 hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years" (emphasis added).

There are many problems with the state of IP law these days, but one of the biggest is the incredible enlargement of copyright protection, so that it is an order of magnitude larger than as stated by Blackstone. If anything, the proliferation of media these days should go towards a shorter copyright span.
6.12.2007 2:23pm
Indeed, Donaldson held that any PREVIOUSLY existing rights in natural law were supplanted by the Statute of Anne (or, at least their enforceability was).

Notable, however, is that the Donaldson court voted overwhelmingly (10-2, as I recall) to affirm that natural law did protect perpetual copyright, but it also voted 6-5 that the Statute of Anne supplanted it (or at least its ENFORCABILITY, which might matter -- as the Wheaton v. Peters dissent argues in part...). And, VERY interesting to note is that, had Lord Mansfield not recused himself (due to his authorship of Millar), that issue would have tied -- and left Millar in force!!
6.12.2007 2:31pm
Earnest Iconoclast (mail) (www):
While I am in favor of allowing inventors, authors, and artists to be compensated for their work, I've never found the idea that authors OWN their work to be compelling. They certainly have copyright and should get compensated, but any work of art or technology is built on previous works and, once it is released into the world, becomes part of anyone who is exposed to it. The author of a book has no control over what is in my head when I read his book. No one should be able to control what I sing in the shower.

The other problem with IP law these days is that more and more violations are becoming criminal and laws are being passed that ban activity that might facilitate copyright violations regardless of whether or not it actually does. Like the War on Drugs, the War on Copyright Infringement is starting to spread in scope.

6.12.2007 2:37pm
By the way, a pretty major (albeit a bit old) article arguing *against* a common-law copyright is:

Abrams, Howard B. "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright." Wayne Law Review 29 (1983): 1119-1191.

And the Wheaton case (whose dissent I've kind of been fawning over for on few posts!) can be linked to from here:

Also, one of Lord Mansfield's arguments for literary property relied upon how narrow the definition of "copy" actually was. (He kind of "scolds" the dissent in Millar for acting like the meaning of "copy" could ever be broad enough to actually monopolize ideas or thoughts.) Here's an article asserting a still-narrow definition of "copy" under US copyright law:
6.12.2007 2:42pm
Again, I would just note that this passage indicates that the current debate over "intellectual property" is actually part of a very long-running debate.
6.12.2007 3:42pm

I agree. (Of course, the fact that this was so vehemently debated in the 1700s during the so-called "literary property debates" -- and even the subject of conflicting eighteenth-century caselaw -- proves your very point!)
6.12.2007 3:49pm
Henry Schaffer (mail):
Article I, Section 8 "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" [emphasis added]

The current copyright term being longer than the average life span or even than a long life span appears to have a serious conflict with the "original intent" or even just the plain black letters of our Constitution.

Am I the only one who is bothered by this?
6.12.2007 4:00pm

One argument for perpetual copyright (the one I was referencing vis a vis Justice Thompson), albeit long since abandoned by many, is essentially that the federal constitutional right merely supplements a common-law "property" right. (Arguably, state legislatures could even make it explicit if it weren't for the preemption section in current federal copyright law.) (This would parallel the 18th-century argument that England's Statute of Anne merely "supplemented" the perpetual common-law copyright over there.) Unfortunately the history is probably too unclear to ever resolve 100%.

There are multiple bases for this, one of which being the fact that the word "secure" was often thought to be a term of art that could only strengthen/supplement an already-existing right.

It would essentially eliminate the involuntary public domain, at least in time -- if not space.
6.12.2007 4:09pm
Here's Justice Story chiming in on the relevant Constitutional clause:

"[T]his power did not exist under the confederation, and its utility does not seem to have been questioned. The copyright of authors in their works had, before the revolution, been decided in Great Britain to be a common law right, and it was regulated and limited under statutes passed by parliament upon that subject." 3 Story's Com. 48.

Note the juxtsposition of noting that the power did *not* exist under the [1st Constitution], and yet he doesn't seem to think it ever went away! Apparently there's an argument that the colonies "inherited" English common law of property, including literary property. (This is where it really matters whether Donaldson actually held that the Statute of Anne merely limited the remedy under natural law...)
6.12.2007 4:31pm
dlc (mail):
As a frequent reader of blogs and infrequent commenter, I have yet to succumb to the narcissistic impulse to toot my own horn when not specifically asked to, but you caught me at a moment when my willpower is weak - so forgive me . . . I wrote an article some 8 years ago that compared that various approaches to IP (specifically the common law English with the German (hegelian) through the prism of the same patent that was litigated to differing results. My conclusion was that the reason german and uk courts reached differing conclusions about the same patent and same statutory language on how to interpret the patent was rooted in their differing approaches to the purpose of patent (economic on the one hand, hegelian on the other). In any event if anyone is interested it is Northwestern University Law Review (1998) and is entitled "Article 69 and European Patent Interpretation"
If anyone wants a copy I can forward it to them off line.
6.12.2007 6:02pm