The Copyright Clause of the United States Constitution and Its Historical Background
How the Copyright Clause of the United States Constitution came about starts in England:
The earliest English copyright statutes were enacted in the sixteenth and seventeenth centuries, and gave publishers a copyright in the works they published. At the same time, authors were generally understood to enjoy a perpetual common law right to their unpublished works.
In 1710, Parliament passed the so-called Statute of Anne, which granted works published after April 10, 1710 a copyright term of 14 years from the date of publication, and an additional term of 14 years if the author survived the original term. Works published prior to April 10, 1710 received a copyright term of 21 years from that
Following the American Revolution, the states began to enact copyright statutes that were similar to the Statute of Anne. In 1783, Connecticut passed the first such statute, which provided a copyright term of 14 years with a renewal term of 14 years. Other states passed similar laws, also based on the Statute of Anne, but different in numerous
Because they varied in many respects, the state copyright statutes failed to establish a workable system of copyright protection for the new nation. . . . The Framers therefore provided Congress with a federal copyright power when they enumerated the functions of the national government in the Constitution, conferring upon Congress in the Copyright Clause, Article I, section 8, clause 8, the
Beginning with the first Copyright Act in 1790, each major copyright act enacted by Congress has broadened the scope and term of copyrights in pre-existing works, as well as in works created after the statutes enactment.
The Copyright Act of 1790 was the first copyright law enacted in the United States and set the initial terms of copyright:
The First Congress enacted the initial federal Copyright Act in 1790. . . . The 1790 Act, which sought the encouragement of learning, provided that the author of a map, chart, or book or his assignee would have a copyright for a term of 14 years from the date of compliance with certain notice, deposit, and recordation procedures. The 1790 Act also provided that, if the author survived the initial term, he or his executors, administrators or assigns could renew the copyright for a renewal term of 14 years.
Importantly, the Copyright Act of 1790 expressly provided for the issuance of federal copyrights for works that were already in existence. Indeed, it specifically identified, as the first-listed beneficiaries of the new federal Copyright Act, the author and authors of any map, chart, book or books already printed within these United
The Copyright Act of 1831 provided the first copyright extension as follows:
In 1831, Congress extended the initial copyright term to 28
The 1831 Act responded to Englands extension of the copyright term [to] twenty-eight years, plus the balance of the authors life if he were still living at the end of the twenty-eighth
After reviewing Englands term extension, Frances decision to extend the term
to life of the author plus 50 years, Russias copyright term of life of the author plus 20 years, and the perpetual rights in Germany, Norway, and Sweden, the House Report stated: [W]e ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science. It cannot be from the interest or honor of our country that intellectual labor should be depreciated, and a life devoted to research and laborious study terminate in disappointment and
The Copyright Act of 1909 extended the term of copyrights further but still not in line with the rest of World:
By 1909, when Congress next considered extending the copyright term, many
countries had adopted a life-plus-50-year copyright
As evidenced by the reports in both the House and Senate on the 1909 Copyright Act, Congress considered adopting a life-plus-50-year term in 1909, but ultimately decided to maintain an initial copyright period of 28 years and to extend the renewal term to 28 years as
The House and Senate reports for the 1909 Act set forth a number of reasons for Congress extension of the scope and term of copyrights. First, Congress was concerned that the 1831 Act did not adequately reward authors because serious works often make their way more slowly in the public regard, and that the term then in existence did not ensure that authors would benefit from their works during their old age. Second, Congress wanted to encourage continued development of already-created works. Third, Congress observed that the 1831 Act did not provide for spouses, parents, or grandchildren if the children were deceased. Fourth, Congress, mindful of international standards, was concerned that the United States had the second shortest copyright term of any nation.
The Copyright Act of 1976 finally brought the US term of copyright in line with those countries who were members of the Berne Convention:
From the 1920s through the 1940s, several bills were introduced to harmonize
the federal copyright law with the life-plus-50-year copyright term of the Berne
Beginning in 1962, and looking toward the enactment of comprehensive legislation revising the 1909 Copyright Act, Congress extended the terms of existing copyrights for successive brief periods of a year or more. The intent and effect of these enactments was to preserve copyrights nearing the end of their statutory protection from falling into the public domain before proposed legislation containing a longer term was passed and became effective. In this regard, the House Judiciary Committee reported that [t]here is an urgent need for copyright legislation that takes full account of the continuing technological revolution in communications.
In the Copyright Act of 1976, Congress finally embraced the international
standard established by the Berne Convention, and enacted a term of life of the author plus 50 years for works created or published after January 1,
The reports of the House and Senate Judiciary Committees listed the following reasons, among others, for extending the term of copyright:
1. The present 56-year term is not long enough to insure an author and his dependents the fair economic benefits from his works. Life expectancy has increased substantially, and more and more authors are seeing their works fall into the public domain during their
2. The tremendous growth in communications media has substantially lengthened the commercial life of a great many works. A short term is particularly discriminatory against serious
3. . . . [T]oo short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted
7. A very large majority of the worlds countries have adopted a copyright term of the life of the author and 50 years after his
The Copyright Act of 1976 paved the way for United States adherence to the Berne Convention, which finally came about on March 1, 1989, pursuant to the Berne Convention Implementation Act of 1988.
Excerpts from a brief filed in the Eric Elred v. Janet Reno case in Washington, D.C. on June 28, 1999. The brief was filed as Amici Curiae on behalf of the Sherwood Anderson Literary Estate Trust; the Sherwood Anderson Foundation; American Society of Composers, Authors and Publishers Amsong, Inc.; Association of Publishers, Inc.; Broadcast Music, Inc.; Motion Picture Association of America, Inc.; National Music Publishers Association, Inc.; Recording Industry Association of America; and the Songwriters Guild of America (footnotes and legal cites omitted).