Owning the Past? The Digital Historian’s Guide to Copyright and Intellectual Property

A Brief History of Copyright

he idea of a balance between the rights of the creators of intellectual property and the social and cultural claims of sharing and community finds support in the early history of American copyright law. Noah Webster, who was trying to protect the revenues flowing from his best-selling American Spelling Book, successfully lobbied the Connecticut State Legislature to pass the new nation’s first copyright law in 1783. It gave authors control over the printing and publishing of their work for fourteen years with the option of a fourteen-year renewal—the same time period embodied in the Statute of Anne, the 1710 British law that set many of the terms for subsequent Anglo-American copyright legislation. The Connecticut law balanced the rights of authors with the claims of the public domain by requiring authors to “furnish the Public with sufficient Editions,” which meant that those benefiting from the law could not restrict access to their work.4

Article 1, Section 8, of the U.S. Constitution most fully embodies this effort to balance public good and private reward. It grants Congress the power to give “authors and inventors the exclusive right to their respective writings and discoveries,” while also specifying that such rights be granted only “for limited terms” and with the purpose of promoting “the progress of science and the useful arts.” It is, indeed, the only section of the original Constitution that states a purpose behind the provision. The 1790 U.S. copyright law followed this by limiting copyright to two fourteen-year terms, requiring deposit of copies, and identifying its larger purpose with the title: “An Act for the encouragement of learning.”5

The new law did not, however, satisfy Webster. Like the Disney Corporation two centuries later, he wanted to keep the healthy revenue stream flowing from his blue-backed speller as long as possible. He and his allies failed to win perpetual copyright (a clear breach of the U.S. Constitution) but did get a series of extensions—an indication that much of the subsequent history of American copyright would increase the rights of authors and owners and decrease the claims of the general public. An 1802 amendment extended the law to cover print illustrations. The 1831 law doubled the initial copyright period to twenty-eight years (with a total possible term now of forty-two years) and added a clause allowing the widows and children of authors to file for renewal—a provision in tension with the notion that copyrights (and patents) are an incentive to the creators of new work.6

Nineteenth-century court decisions vacillated between supporting and restricting the rights of authors. In the 1834 case Wheaton v. Peters, the U.S. Supreme Court embraced the Constitution’s more limited view of copyright and rejected the idea that it could be a perpetual right. But seven years later, it ruled in Folsom v. Marsh that the Rev. Charles Upham, the author of a two-volume Life of Washington, had infringed the copyright of Jared Sparks’s twelve-volume The Writings of George Washington by copying 255 pages of Washington letters from the longer work. Justice William Story ruled against Upham even though he had used only 3.8 percent of Sparks’s work and the Washington papers were public, rather than private, property. In spite of Story’s ruling, Folsom would later help to establish the concept of “fair use,” the idea that limited borrowing from the work of others was acceptable when that borrowing produces something new and useful.7 As we shall see, digital historians have many reasons to hold the principle of “fair use” close to their hearts.

Despite Folsom, American authors did not view the courts as their friend. Justice Robert Grier ruled against Harriet Beecher Stowe in her suit over an unauthorized German translation of Uncle Tom’s Cabin in 1853. But seventeen years later, Congress revised the copyright law to give authors rights over translations and dramatic adaptations—a change that implicitly protected “ideas” and not just the specific expression of those ideas, as Grier had ruled and as copyright law formally insisted. Even more important was the passage in 1891 of the International Copyright Treaty. To the consternation of British writers like Charles Dickens, the absence of such a treaty had meant that American publishers routinely pirated English authors in cheap editions that paid them no royalties, and over time a growing number of American writers joined the campaign for international copyright.8

But, in the new century, the authors—now led by Mark Twain (who had become a fierce defender of authors’ rights after his own works were pirated in Canada and Britain)—pressed for more. In 1906, Twain testified before Congress on behalf of a bill to increase the duration of copyright to the life of the author plus fifty years. The bill failed, but a compromise measure in 1909 broadened the scope of copyright to include all works of authorship and doubled the renewal period from fourteen to twenty-eight years. As the legal scholar Jessica Litman points out, the 1909 law emerged out of negotiations among “interested parties,” especially “the beneficiaries of rights granted by existing copyright statutes.” Missing from these negotiations was “the amorphous ‘public,’” whose “interest in copyright and copyrighted works was too varied and complex to be amenable to interest-group championship” and the “push and shove among opposing industry representatives.”9 This dynamic of a vocal minority drowning out a voiceless majority would unfortunately persist for the remainder of the twentieth century.

Thus interest group lobbying also shaped the next major copyright law, which Congress passed in 1976 and went into effect two years later. It extended copyright protection in precisely the way Twain had advocated seven decades earlier—protecting works for the life of the author plus fifty years and works for hire for seventy-five years. For historians, perhaps the most important change was that it extended the length of copyrights granted much earlier for an additional nineteen years. A book published in 1923, renewed in 1951, and scheduled to come into the public domain in 1979, now had its copyright extended until 1998. But the 1976 law did give the public something in return—an enumeration of the “fair use” doctrine, which is a crucial bulwark for your work as a digital historian.10

But the narrowing of the public domain through the copyright law continued in 1998. On October 27, President Bill Clinton signed into law the Sonny Bono Copyright Term Extension Act (CTEA), which gave an additional twenty years of copyright protection to works published before 1978. The 1923 works whose copyright life had been extended from 1979 to 1998 by the 1976 law were now given protection for a total of ninety-five years—until 2018. On January 1, 1998, such classic works as T. S. Eliot’sThe Waste Land and Sinclair Lewis’s Babbitt entered the public domain where they could be shared freely, published online, and made the subject of derivative works like plays and films. But a set of equally important works—novels by F. Scott Fitzgerald, poems by Edna St. Vincent Millay, and films by Cecil B. DeMille—scheduled to enter the public domain the following New Year’s Day will now remain outside of it until 2018.11

In addition, the copyright term of life plus fifty years that Twain had boldly sought in the early part of the century now became life plus seventy years. Twain believed that the law should protect an author’s children, but Congress should “let the grandchildren take care of themselves.” Under the CTEA, grandchildren—and likely a few more generations—will benefit financially from their ancestor’s creativity. The copyright of Mark Twain’s Autobiography, which was posthumously published in 1924, will outlive his own granddaughter (who died in 1966) by fifty-three years.12

The bad news for the public domain that began on October 27, 1998, continued the next day when President Clinton signed another sweeping revision of the copyright law, the Digital Millennium Copyright Act (DMCA). Among other provisions, the Act bans circumventing or tampering with the copyright protection and encryption devices commonplace in software, DVDs, and CDs. The DMCA thus remarkably grants corporations the right to limit how we use digital products even after we have purchased them. As a result, we can’t read an electronic book purchased for a particular reading device on some other device; nor can we easily play a DVD we own on a Linux computer. The DMCA especially poses problems for historians who work with film. It will, for example, restrict their ability to play film clips as part of an in-person or online history course because they might need to circumvent the encryption on a DVD (emerging as the standard format for films) in order to get the clips. Similarly, they cannot copy a section of a borrowed DVD for later study in the same way that they can photocopy a chapter of a book. Ideally, copyright law establishes a balance between rights holders and rights users—a give-and-take that rewards authorship but that also fosters the dissemination of knowledge for educational and academic purposes. As with almost all of the copyright legislation of the past two centuries, the DMCA tips the legal balance toward rights holders, particularly corporate ones.13

The same is true of two key cases—Basic Books, Inc. v. Kinko’s Graphic Corp. (1991) and Princeton University Press v. Michigan Document Services (1996)—that ruled against the once-common practice of commercial copy shops making course packs for students. In theory, the Kinko’s case, as a U.S. District Court decision, is not binding on other courts. Similarly, the U.S. Supreme Court has not affirmed the Princeton decision and five of the Circuit Court judges dissented.14 Moreover, the cases involve only commercial entities and not scholars and teachers working in an academic setting; it is not clear, for example, that a similar case could be won against a university copy shop selling copies at cost. Unfortunately, university copyright policies, which determine what you can put in your course packet and which tend to be shaped by university general counsels who are often not familiar with intellectual property law and are focused on risk to the university, generally follow these decisions closely. These decisions may not be the law, but they may still be the law in your university and, as most instructors know, they have significantly raised the price of the course packets we assign to our students.

In 1991, however, the U.S. Supreme Court ruled in a case that affirmed the principle that the copyright law protects the public domain. In Feist Publications, Inc. v. Rural Telephone Co., it decreed that the white pages of the phone book lack the originality to merit copyright protection. The conclusion may seem self-evident. Few people choose the phone book for their leisure reading. But previously the courts had held that the “sweat of the brow” invested in such compilations made them eligible for copyright protection even though the contents were factual and organized in an obvious way and copyright doesn’t protect facts.15 This decision significantly affects those creating online historical databases—like the Ellis Island passenger lists. The facts revealed in the databases are not protected by copyright no matter how much sweat from however many brows went into compiling and organizing them. The decision also affects other forms of historical work because history often involves considerable labor directed at uncovering facts. A film company that based a major motion picture on your scholarly monograph could argue that it doesn’t need your permission because it worked from the “facts” that you uncovered.

A dozen years later, however, the U.S. Supreme Court ruled for copyright holders through a 7-2 decision in the case of Eldred v. Ashcroft. Eric Eldred, the lead plaintiff, was the organizer of the Eldritch Press website dedicated to providing free books by such authors as Nathaniel Hawthorne and Robert Frost. Eldred sued to overturn the CTEA on the grounds that the twenty-year extension subverted the constitutional provision of “limited” copyright terms and did nothing to promote new creativity. Writing for the majority, Justice Ruth Bader Ginsburg maintained, “the copyright clause empowers Congress to determine the intellectual property regimes that, over all, in that body’s judgment, will serve the ends of the clause.”16 In other words, the vagueness of the original section of the Constitution on copyright—granting Congress the right to give authors a “limited term” of ownership over their work—has now subverted the explicit intent of that clause.

Nevertheless, even the majority conceded that the term extension could be seen as “arguably unwise.” A new court could reverse it, and thus the future of the copyright law remains a matter of active contention. Historians therefore need to recognize that there is no fixed body of rules, but rather a shifting terrain of interpretations of the law. Even more, they need to be active participants in shaping the copyright landscape to make it more receptive to the sharing of ideas and expressions.

4 Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001), 37–44; Edward Samuels, The Illustrated Story of Copyright (New York: Thomas Dunne Books, 2000), 12–13. Sometimes the Statute of Anne is dated to 1709—the date on the law itself. At the time of the law, however, the new year began on March 25, meaning that, based on the 1752 calendar (which reinstituted January 1 as the start of the new year), it was actually 1710. For more on history of copyright, see also Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt University Press, 1968); L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright: A Law of Users’ Rights (Athens: University of Georgia Press, 1991); William W. Fisher, III, “The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States,” ↪link 7.4. Massachusetts Bay Colony enacted a copyright law as early as 1672; the Connecticut law was the first passed after the Revolution. Our brief summary of copyright history is particularly indebted to Vaidhyanathan’s fine book.

5Vaidhyanathan, Copyrights and Copywrongs, 45; Samuels, The Illustrated Story of Copyright, 14–15.

6 Vaidhyanathan, Copyrights and Copywrongs, 45; Circular 1a: United States Copyright Office: A Brief History and Overview (Washington, D.C.: U.S. Copyright Office, 2005), ↪link 7.6.

7 Vaidhyanathan, Copyrights and Copywrongs, 46–47; L. Ray Patterson, “Folsom v. Marsh and Its Legacy,” Journal of Intellectual Property Law 5.2 (Spring 1998): 431–52. It can be argued that the Folsom decision has been misunderstood as establishing a fair use defense and that Justice Story did not use “fair use” in a modern sense. But, regardless of the original intent, the case has been used by courts to establish fair use.

8 Vaidhyanathan, Copyrights and Copywrongs, 50–55. The rationale for allowing the translation was that the translator had produced a new and useful work rather than simply pirating it. The domestic manufacturing clause, which mandated that foreign works had to be produced from plates made in the United States if they were to receive copyright protection and which remained in effect until relatively late in the twentieth century, limited the degree to which foreign authors actually benefited from the treaty. Over time, however, the expense of creating plates in the United States diminished. On this, see Bill Colitre, “House Report No. 94-1476,” The Hypertext Annotated Title 17, ↪link 7.8.

9 Vaidhyanathan, Copyrights and Copywrongs, 35–80 (quote on p. 79); Jessica Litman, “Copyright As Myth,” University of Pittsburgh Law Review (Fall 1991), 36, 51–52.

10 Patterson argues that the law actually narrowed fair use by defining it because in specifying the terms of fair use for the first time, the law ruled out broader possible interpretations. But others maintain that the provisions are broad and not closely defined, and hence offer significant protection. Patterson, “Folsom v. Marsh and Its Legacy,” 450.

11 Jonathan D. Salant, “Disney Locks in Copyrights to Mickey, Goofy and Gang,” San Francisco Chronicle, 17 October 1998, ↪link 7.11a; Dennis S. Karjala, “Some Famous Works and Year of First Publication (Subverted Public Domain List),” Value of the Public Domain, ↪link 7.11b. Digital archives are, however, allowed to put work online in the final twenty years of copyright if that work is not being commercially exploited. But the law does not establish a procedure for establishing whether or not a work falls into that category, and it does not apply to musical works and pictorial, graphic and sculptural works. Senator Orrin Hatch was actually the author of the CTEA; Bono’s name was attached to the legislation after his death.

12 Vaidhyanathan, Copyrights and Copywrongs, 79; “Nina Clemens Gabrilowitsch, 55, Twain’s Last Direct Heir, Dies,” New York Times, 19 January 1966, ↪link 7.12. The American Cancer Society now holds the Twain copyrights.

13 Jonathan Band, “Digital Millennium Copyright Act Guide,” American Library Association, ↪link 7.13a; The Digital Millennium Copyright Act of 1998 U.S. Copyright Office Summary (Washington, D.C.: U.S. Copyright Office, 1998), link 7.13b. For strong warnings on threat of DMCA, see Siva Vaidhyanathan, “The State of Copyright Activism,” First Monday 9.4 (April 2004), ↪link 7.13c. For a good discussion of the implications for historians of DMCA (and other copyright provisions), see Gerald Herman, “Roundtable: Intellectual Property and the Historian in the New Millennium,” Public Historian 26.2 (Spring 2004): 23-48.

14 Richard Stim, Getting Permission: How to License and Clear Copyrighted Material Online and Off (Berkeley, Calif.: Nolo, 2001), 7/2.

15 See Board of Regents of the University System of Georgia Office of Legal Affairs, Regents Guide to Understanding Copyright & Educational Fair Use, 37 (hereafter Regents Guide); Stephen Fishman, The Copyright Handbook: How to Protect and Use Written Work, 2nd ed. (Berkeley, Calif.: Nolo, 1994), 14/11–15. Another recent case that suggests that factual compilations lack the “minimal creativity” needed for copyright is Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998), ↪link 7.15a. The European Union, however, has enacted a “database right” that might protect such compilations. Randal C. Picker and Alan Charles Raul, “European Union Database Developments: An Update on the Status of Intellectual Property Protections for Factual Compilations,” Cyberlaw@Sidley, ↪link 7.15b; Jordan M. Blanke, “Vincent Van Gogh, ‘Sweat of the Brow,’ and Database Protection,” American Business Law Journal 39 (Summer 2002).

16 Linda Greenhouse, “The Supreme Court; Protected Works; 20-Year Extension of Existing Copyrights Is Upheld,” New York Times, 16 January 2003; Amy Harmon, “The Supreme Court: The Context; A Corporate Victory, But One That Raises Public Consciousness,” New York Times, 16 January 2003. For detailed coverage, see ↪link 7.16.