May 31, 2013
I’ve previously stated that, where some areas of law become less relevant with advances in technology, others do just the opposite.
The area that I was then referring to that has seen more relevance with time and the accompanying technological advances is copyright law.
Aside from all of the changes in technology that have forced and continue to force copyright law to evolve and adapt, the current U.S. economy is arguably more reliant on copyright protections than it ever has been in its 237 year history.
The first federal copyright law ever enacted in the U.S. illustrates the insignificant role that intellectual property played in the fledgling U.S. economy. That law is the Copyright Act of 1790, signed into law by President George Washington on May 31, 1790, 223 years ago today.
The 1790 Act was largely copied from the British Statute of Anne, passed over 80 years earlier, demonstrating that the issue of copyright law was not something that early politicians had dedicated much time to debating (which is unsurprising, considering that the U.S. economy at the time was primarily agrarian based).
In addition, the 1790 Act was far less friendly to both those seeking copyright protection and those whose works have been awarded it, relative to copyright law today.
First, copyright protection only lasted for 14 years. If the original author survived the first 14 year term, he would be entitled to apply for another 14 year term thereafter.
In comparison, today’s copyright term is 70 years after the death of author, unless the work has a corporate author, in which case the term is 95 years from publication or 120 years from creation, whichever expires first.
Next, only maps, charts, and books were covered by the act, whereas nearly any conceivable “work of authorship” is covered by today’s copyright law (e.g. music, sound recordings, choreographic works, architecture, audiovisual works, dramatic works, etc).
In stark contrast with today’s laws, in which “copyright protection subsists from the time the work is created in fixed form,” the 1790 Act granted copyright protection only after the applicant satisfied several conditions.
The first of these required the author to file a copy of the work seeking protection with the district court (the district courts administered copyright laws until 1870) and pay a 60 cent filing fee for each copy filed. Neither of these tasks was as cheap and easy as they would be today.
Then, within two months of the recording of the copyright by the court clerk, the author must “cause a copy of the said record to be published” in one or more U.S. newspapers, “for the space of four weeks.”
Finally, within six months of publication, the author must send a copy of the work to the U.S. Secretary of State.
Likely because of these burdensome conditions, only around 5% of all works published in the U.S. between 1790 and 1800 received copyright registrations.
Another significant aspect of the 1790 law that sharply distinguishes it from today’s laws is the 1790 Act’s failure to apply to non-U.S. citizens and works published outside of the U.S.
Since 1891, new copyright laws have been enacted in varying degrees to bring U.S. law in compliance with international agreements and norms. And today, the U.S. could expect a severe reaction from the international community – including WIPO (the World Intellectual Property Organization) – if it failed to extend copyright protection to the works of non-U.S. citizens and those published outside U.S. borders.
Finally, the 1790 law distinguishes itself from today’s copyright laws with its brevity: at around 700 words, it can be read in five minutes. 1998’s Digital Millennium Copyright Act (DMCA) is 35 pages long, and current federal copyright statutes encompass some 300 pages total.
Again, though, that the 1790 Act was so short is unsurprising, considering that so little of the U.S. economy was concerned with intellectual property in 1790 – which is certainly not true today.
The Act demonstrates how, in spite of its paramount importance in contemporary politics and economics, intellectual property was simply not a significant consideration in 1790.
Furthermore, copyright law’s humble beginnings in 1790 serve as a reminder that an area of law that was of little consequence at one time can later become a vital national interest.