A recent draft article came across SSRN about the origins of copyright in the US. For those new to the copyright game, there are some who argue that the US copyright system is based on the premise that authors have a ‘natural’ right in the fruits of their labor and copyright merely codifies such right. There are others–who I think have the better end of the argument–that argue that copyright in the US is derived from English law, which is entirely statutory (the Statute of Anne, to be exact). Why is this debate important? Because, according to Liam Séamus O’Melinn (Northern Ohio University), “the theory of common law copyright can be stated in a way that seems to make sense to modern sensibilities, in terms of a past in which the invention of the printing press connected needy authors with a broad reading public.” By postulating that the printing press (the technological advancement) benefited the author and the public, the common law copyright theory suggests that copyright is the precursor to technological change. Of course, as we’ve seen over the last 50 years, copyright owners have attempted to squash any changes in technology that might upset their absolute control over the distribution of their copyrighted works–from VCRs to MP3s.
O’Melinn’s article is entitled “The Ghost of Millar v Taylor” (an apparent play on the title of an article by John Whicher, “The Ghost of Donaldson v. Becket,” in which Whicher argued that there existed a common law copyright in England that influenced American jurisprudence). O’Melinn argues that there is no evidence that there existed any concept of a copyright in English common law and provides some very compelling evidence, including a very interesting discussion of Benjamin Franklin’s trips to London around the time the Donaldson v. Becket case was winding its way through the British legal system.
While O’Melinn’s article would be interesting to Revolutionary War-era history buffs, why should copyright students worry about this debate? The answer, as O’Melinn’s explains,
The eventual triumph of copyright for records marked two important events in the history of copyright law. It launched us into the age of the sound recording, which may seem a distant matter of legal history, but the law remains very much trapped in that age. The vinyl long playing record that was the first beneficiary of the extension of federal copyright law to records has become technologically irrelevant (my apologies to audiophiles), but the law has worked desperately to protect the property interests of the holders of that antiquated technology, to reserve the benefits of recorded music to those who controlled the apparatus in the previous century, and to deny those benefits both to the public and to the holders of new means of transmission.
The draft can be found here.