Kernochan Center for Law, Media and the Arts
Much contemporary copyright rhetoric casts copyright as a derogation from a primordial public domain. Placing the public domain in the initial position buttresses attempts to contain a perceived over-expansion of copyright. I do not take issue with the normative role these endeavors assign to the public domain. The public domain is today and should remain copyright's constraining counterpart. But normative arguments that also claim the support of history may be fundamentally anachronistic. The ensuing examination of the respective domains of author and public at copyright's inception, in 18th-19th century Britain, France and America, reveals more ambiguity than today's critiques generally acknowledge.
In England, John Locke supplied the philosophical basis for a common law of authorial property rights before the passage of the first copyright statute, the Statute of Anne of 1710. The post-statutory caselaw belies the proposition that the statute provided the sole source of authors' enforceable legal rights. Had the Statute of Anne created property rights ex nihilo, then the following propositions should be true:
1. Subject matter not included within the statute was not protected 2. Protection for covered subject matter depended on compliance with statutory formalities 3. Rights not included within the statute were not protected 4. The duration of rights was limited to the statutory term.
In fact, only the last of these ultimately proved to be correct, and the decision that determined the issue, Donaldson v. Beckett, was hotly debated, even deplored, at the time by significant expositors of the common law. More importantly, resolution of the duration issue did not fully contain the author's domain. English judges continued both to grant extra-statutory protections, and to interpret hospitably claims that pushed the limits of statutory scope.
In revolutionary France, the rhetoric of "propriété publique" held greater sway than in Britain. Advocates stressed both the public utility of works of authorship and the public's claims to unfettered use following a statutory period to which the author, as the work's creator, was justly entitled. But the author's claims were set against the backdrop of a broader public entitlement. Paradoxically, however, while the French sources articulated a concept of the public domain in many ways consistent with today's characterizations, the substantive law was in fact far more protective of authorial property rights than either British or American law at the time.
Finally, early American copyright history reveals even greater ambiguities. If the word "securing" in the constitutional copyright clause indicates that the Framers perceived that authors enjoyed preexisting common law property rights in their works, the heavy formalities imposed by subsequent statutes suggest a more positivistic view. In Wheaton v. Peters, the Supreme Court rejected common law copyright in published works, but for reasons extraneous to competing conceptions of the author's and the public's domains. Wheaton's reliance on "securing" to support State common law copyright protection for his published Reports echoed the unsuccessful arguments of the steamboat monopolists in Gibbons v. Ogden, who had asserted that "securing" implied residual authority in the States to protect writings and inventions, and that New York therefore had power to grant the inventor of the steamboat exclusive navigation rights on the Hudson River. Because "securing" bore the taint of the interstate trade barriers the Marshall court had struck down in Gibbons, Wheaton's later attempt to persuade that same court to resurrect residual State monopoly power was doomed to failure. Despite Wheaton's rejection of common law copyright in published works, the author's domain was not strictly limited to the narrow realm of the federal statutes. The public domain began with publication. An unpublished work remained the object of State common law rights, and over time the courts elaborated a parallel universe of common law rights in works which, albeit technically "unpublished" because they had not been distributed in copies to the general public, had nonetheless encountered significant, indeed sometimes massive public exposure. Thus, even in a system as positivist as US copyright, judges found occasion to recognize authors' extra-statutory literary property rights.
Jane C. Ginsburg,
'Une Chose Publique'? The Author's Domain and the Public Domain in Early British, French and US Copyright Law,
Cambridge Law Review, Vol. 65, p. 636, 2006; Columbia Public Law Research Paper No. 06-120
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1423