By Bruce D. Epperson

After the failure of the Articles of Confederation, the United States government commenced operations under its new Constitution in April,1788. Article 1, Section 8, subsection 8 of the Constitution (the “Progress Clause”), authorized congress “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Note that the Progress Clause did not specify a “copyright,” merely a “right,” but it is clear that the participants to the constitutional convention were thinking in terms of English-style copyright. In Federalist #43 James Madison, in explaining the Progress Clause, stated that “The utility of it will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.” (Whether, in making reference to “a right of common law,” he was arguing for the two-layered “cupcake” theory of underlying common-law copyright that the House of Lords voted against in 1774 has long been debated. Suffice it to say that the majority view is “probably not.”)

One of the first acts of the new congress in 1790 was to enact a copyright law. Printed works were eligible for a British-style, 14/14-year term. An author had to register the title of the book, issue a newspaper notice within two months of publication, and deposit a copy of the printed book within six months. An American rerun of Donaldson v. Beckett ensued in 1834 in Wheaton v. Peters. A publisher forgot to fulfill some of the formalities of the copyright act, and had some of his books pirated. Acknowledging that he had forgotten to fulfill all the requirements, the publisher pled that he should nevertheless be entitled to some kind of common-law copyright. With no homegrown law yet to follow, a majority of the Supreme Court used Donaldson, interpreting it to mean that once a government copyright scheme has been put in place, it is the only copyright law that remains—common-law copyright is cut off.

But Justice Thompson, in a dissent, argued that in their vote, the House of Lords had meant only that the Statute of Anne cut off common-law copyrights, not government copyright laws in general. The Statute of Anne never applied to either the colonial predecessor of Pennsylvania or the current Commonwealth.  Therefore, while there may not be a common-law copyright under federal law after publication, this did not apply to Pennsylvania. The “cupcake” idea was back, only in a new, federalized form. Justice Thompson outlined an alternative vision of copyright, one in which state-law powers formed the bedrock of an all-embracing, perpetual, copyright regime, with federal statutory copyright a thin frosting slathered on top. After a few years, the federal copyright may melt away, but the state-law copyright always remains. Thompson’s argument didn’t carry the day in 1834, but a hundred and seventy years later, it became one of the foundations to Judge Graffeo’s opinion in Capitol Records v. Naxos IV.

To be continued…