Copyright in 1791: An Essay Concerning the Founders' View of the Copyright Power Granted to Congress in Article I, Section 8, Clause 8 of the U.S. Constitution

Abstract

Copyright in 1791: An Essay explores the meaning of the Copyright Clause of the United States Constitution as the Founders understood it in their own time. In his examination of the history of copyright prior to the adoption of the Constitution, Professor Joyce and his co-author, L. Ray Patterson of Georgia, consider the language of the Founders' provision for copyright against the background of Anglo-American copyright history from the 16th Century to 1787. Among the authors’ principal findings is that, to the Founders, a relatively brief term of protection, followed by entry of the work into the public domain, was a crucial element of the copyright grant required to protect against the inherent dangers of a copyright monopoly.

In addition, Copyright in 1791 uncovers for the first time the historical interrelationship between the Copyright Clause and the First Amendment. Earlier scholars have sought to reconcile these two constitutional provisions primarily through an analysis of doctrinal considerations, such as the idea/expression dichotomy. The authors conclude that the Founders themselves saw no need for reconciliation: The two provisions already were complementary, both embodying anti-censorship and anti-monopoly values learned by the Founders from their English forebears.

As observed by Justice O’Connor in Harper & Row v. Nation Enterprises, “First Amendment protections [are] embodied in the Copyright Clause.” Why? Because in part, as demonstrated by this essay, the Copyright Clause and the Free Press Clause share common origins and authors.

Keywords: Copyright Clause, Bill of Rights, First Amendment, Free Press Clause, freedom of the press, legal history, Statute of Anne, stationers’ copyright, promote learning, public access, public domain, literary property, Copyright Act of 1790, Harper & Roe