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1831: Revision of the Copyright Act
The term of protection of copyrighted works was extended to 28 years with the possibility of a 14-year extension. Congress claimed that it extended the term in order to give American authors the same protection as those in Europe. The extension applied both to future works and those current works whose copyright had not expired.
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1834: Wheaton v. Peters
The case arose from a dispute between the official reporter of US Supreme Court decisions, Richard Peters, and the previous reporter, Henry Wheaton. Peters began publishing “Condensed Reports” of cases decided during Wheaton’s tenure and Wheaton sued. The case went before the US Supreme Court. Peters argued that Wheaton had failed to properly obtain copyright, while Wheaton argued that authors were entitled to perpetual property rights in their works. Justice McLean delivered the majority decision, stating that “since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.” The decision struck a decisive blow against the notion of copyright as a perpetual natural right, and the utilitarian view of copyright embodied in the US Constitution prevailed, i.e., “that patents and copyrights are exclusive rights of limited duration, granted in order to serve the public interest in promoting the creation and dissemination of new works.” See the amicus brief submitted to the US Supreme Court by Tyler Ochoa and Mark Rose in the case of Eldred v. Ashcroft, May 20, 2002.
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1841: Folsom v. Marsh
In a case brought before the Massachusetts Circuit Court in 1841, the owner and editor of a multi-volume collection of George Washington’s letters sued Charles Upham for using hundreds of pages of the letters, in their entirety, in a volume on the life of Washington. Justice Joseph Story found that Upham had infringed the owner’s copyright in publishing some 350 pages of Washington’s letters in his 866-page book. Upham argued that Washington’s letters were not “proper subjects of copyright” because their publication would not harm the deceased author, and because they were not literary in nature. Story disagreed and held that letter writers and their designated heirs, not the persons to whom the letters are addressed, possess copyright in the letters they have written, no matter the content.
Upham also argued that he had “a right to abridge and select, and use the materials . . . for [his] work, which . . . is an original and new work, and that it constitutes, in no just sense, a piracy of the work of the plaintiffs.” Again, Story disagreed, saying that Upham’s work was “a selection of the entire contents of particular letters, from the whole collection or mass of letters of the work of the plaintiffs. . . . [and] that these letters are the most instructive, useful and interesting to be found in that large collection.” In explaining the nature of the infringement, Story said, “It is certainly not necessary, to constitute an invasion of copyright, that the whole of a work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another,that is sufficient, in point of law, to constitute a piracy pro tanto” (my emphasis). The court’s definition of what constituted a “justifiable use of the original materials” formed the basis of the “fair use” doctrine. Put another way, Story said that, “the question of piracy, often depend[s] upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each writer may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of the materials.”
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1853: Stowe v. Thomas
Harriet Beecher Stowe sued F.W. Thomas, publisher of a German-language periodical, Die Freie Presse, in 1853. Thomas translated Uncle Tom’s Cabin into German and sold it in the United States without the author’s permission. Judge Robert Grier of the Third Circuit Court of Appeals explained in the decision that once an author published her or his work, “and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them.” With regard to translations, he continued, “the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or ‘copy’ of the same ‘book.'” According to Siva Vaidhyanathan, the “antiproperty” rhetoric in the decision encouraged many American authors to take a stand in favor of copyright as property until the copyright law was revised in 1870 (Vaidhyanathan, 48-50).
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1870: Revision of Copyright Act
The administration of copyright registrations moved from the individual district courts to the Library of Congress Copyright Office. The term of protection was not extended in this revision.
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1886: Berne Convention
The goals of the Berne Convention provided the basis for mutual recognition of copyright between sovereign nations and promoted the development of international norms in copyright protection. European nations established a mutually satisfactory uniform copyright law to replace the need for separate registration in every country. The treaty has been revised five times since 1886. Of particular note are the revisions in 1908 and 1928. In 1908, the Berlin Act set the duration of copyright at life of the author plus 50 years, expanded the scope of the act to include newer technologies, and prohibited formalities as a prerequisite of copyright protection. In 1928, the Rome Act first recognized the moral rights of authors and artists, giving them the right to object to modifications or to the destruction of a work in a way that might prejudice or decrease the artists’ reputations. The United States became a Berne signatory in 1988.
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1891: International Copyright Treaty
Because American copyright law applied only to American publications, European authors were unable to profit from the publication and sale of their works at extremely low prices during the nineteenth century. The so-called “cheap books” movement, spread rapidly by small upstart publishers after the Civil War, threatened the “courtesy principle” of gentlemanly price-fixing adhered to by the large, established publishers such as Henry Holt. By the 1880s cheap books flooded the American market. By 1890 authors, publishers, and printers’ unions joined together to support an international copyright bill (Vaidhyanathan, 50-55).
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