Feature

On the Road to a Modern Copyright System

By Joshua L. Simmons

Published in Landslide Vol. 11 No. 4, ©2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The roar of support for modernizing the Copyright Office is deafening.1 Yet, despite those cheers, stakeholders debate the placement of the Office and the role of its head, the Register of Copyrights, in the copyright system. This article presents a narrative of the evolution of the copyright system from 1783 to the early days of the Copyright Office, considering along the way themes such as the requirements for registration, the use of the copyright system to build a national library, and the role of the Register in copyright policy. It also addresses whether the Copyright Office is required to be a department of the Library of Congress and whether the Register of Copyrights can be a primary exponent of copyright policy.

Figures 1-5

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Creating a Copyright System

After the American Revolution but before the creation of a federal copyright system, authors petitioned for private bills to protect their literary works.2 Then, starting with Connecticut in January 1783, the states began passing generally applicable copyright statutes.3 To secure these new rights, authors were required to provide information about their works. For instance, in Connecticut, copyright protection was not available until the copyright owner registered with the Connecticut Secretary of State, who was then “directed to enter the same on record.”4

It took three years after the Constitution was signed for Congress to pass the nation’s first Copyright Act. Following the states’ example, the 1790 Act required authors to provide information to the government. Unlike today, where that information is provided to the Copyright Office, in 1790, copyright owners delivered their works to the clerks of the various district courts.5 The clerks, in turn, would create a record of the works and give a copy to the registering party, which then would have to “be published in one or more of the newspapers.”6 As commentators have noted, “It is doubtful if such publication would be effective beyond the local scene.”7 In addition to recording their works, copyright owners were required to cause a copy of their works “to be delivered to the Secretary of State . . . to be preserved.”8 At this time, “the function of deposit was chiefly to serve as record evidence of the work covered by the copyright claim.”9

Centralization and Organization

The copyright system would be formally centralized and organized over time, but one of its great innovations occurred due to the informal efforts of two clerks. As discussed above, one of the requirements under the 1790 Act was to send copies of recorded works to the Secretary of State. Yet, there was no requirement that anything be done with those copies other than that they be preserved. As the Patent Office already existed within the State Department, the copyright records were maintained there.10

Two brothers working in the Patent Office, William and Seth Elliot, “compiled and published as a private venture an annual list of patents, to which was appended in the years 1822–25 ‘A List of All the Books That Have Been Deposited in the Department of State, for Securing Their Copy Right According to Law.’”11 Due to a lack of support, the project eventually was abandoned, and one of the brothers would later charge “that Congress reprinted the patent list without compensation.”12 Nevertheless, their contribution would later become the model for the Copyright Office’s recording system.

In 1831, Congress changed the copyright system again. The 1831 Act was “the first step toward the centralization of copyright records and deposits.”13 For the first time, after district court clerks created their records, they were required “at least once in every year, to transmit a certified list of all such records of copyright . . . and also all the several copies of books or other works deposited . . . to the Secretary of State, to be preserved in his office.”14

Three years later, Congress for the first time required that copyright assignments be recorded in the district courts “where the original copyright is deposited and recorded.”15 The penalty for failing to do so was that the assignment would be treated as “fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice.”16

Libraries and Copyright

Today, some stakeholders take the position that it is necessary for the copyright system and the Library of Congress to be intertwined. That, however, may not be the case.

The Library of Congress was created in 1800 as a legislative research library in the newly established capital city.17 Its enacting legislation provided for merely the “purchase of such books as may be necessary for the use of Congress . . . and for fitting up a suitable apartment for containing them and for placing them therein.”18 The Library’s historian reported that, as late as 1837, “Congress regarded the Library of Congress as only a small legislative library.”19

By 1846, the Library of Congress had fierce competition in Washington, D.C. English scientist James Smithson bequeathed $500,000 to the United States for “an establishment for the increase and diffusion of knowledge among men.”20 After significant debate, Congress established the Smithsonian Institution, and included in the establishing act a requirement that the owner of a work protected by federal copyright law deliver two copies of the work to Washington: one to the “librarian of the Smithsonian Institution,” and one to the “librarian of Congress Library, for the use of the said libraries.”21

Although delivery of these copies did not affect whether a work was protected by copyright law, it built a bridge between these national libraries and federal copyright law. This was not a new innovation. Requirements to deposit books and other cultural materials in libraries existed at least as early as 1537 in France,22 and 1662 in England.23 As foreign copyright laws developed, sometimes copyright deposits were used to enrich national libraries.24 Even in the United States, Massachusetts’s state copyright act required copyright owners to provide the “library of the university at Cambridge,” which would become Harvard University, “two printed copies” of their literary works.25 The 1846 Act, however, was remarkable because it was the first time that the United States copyright system distinguished between registration deposits (for copyright purposes) and legal deposits (for library purposes).

For the libraries, the 1846 Act did not accomplish its goal. As early as 1849, Charles Jewett, the Smithsonian’s librarian, “estimated that the State Department received perhaps half of the works in which copyright was nominally claimed.”26 Hoping to fix this issue, Jewett recommended and Congress permitted legal deposits to be mailed for free.27 But by 1859, the legal deposit requirement was repealed,28 because, among other things, it “failed to bring in substantial literature contributing to research but did present the libraries with masses of unwanted materials such as textbooks, music, prints, etc.”29 In addition, Joseph Henry, Secretary of the Smithsonian Institution, opposed making the Institution a national library, instead hoping to focus on “the increase of knowledge by scientific research and the subsequent diffusion of this knowledge through publication.”30

In addition to ending the legal deposit requirement, Congress moved administration of the federal copyright system from the State Department to the Interior Department.31 This appeared to make sense because, a decade earlier, Congress had created the Interior Department, and moved the Patent Office there from the State Department.32 The State Department’s “records and the 12,000-volume copyright library . . . were transferred to the Patent Office, which was to receive the single copy forwarded by the district court clerks from that date.”33

Rise of the Library of Congress

After Jewett’s failure to make the Smithsonian Institution a national library, Ainsworth Spofford, a Cincinnati bookseller and journalist, became the primary advocate for a national library. President Lincoln appointed Spofford as the sixth Librarian of Congress on December 31, 1864.34 Up until Spofford, no one “had any ambitions for the Library of Congress as a national library.”35 Spofford had bigger plans and, unlike Jewett, he “was able to deal directly” with Congress.36

Spofford moved quickly with his reforms. Two months into his role as Librarian, Congress reenacted the legal deposit requirement for the Library.37 Although the statute had been represented as “what used to be the law formerly,” it actually added a revolutionary enforcement provision: the “right of exclusive publication” would be forfeited if a copyright holder failed to deposit its work with the Library.38 Two years later, at Spofford’s urging due to insufficient compliance with the deposit requirements,39 Congress added a fine for failure to comply, and reinstated free postage.40

Still unhappy with the number of works that the Library was receiving, in 1870, Spofford wrote to Representative Thomas Jenckes, Chair of the Committee on Patents and Copyrights, to convince him to make the Library “the central agency for copyright registration and for custody of the copyright deposits as well.”41 Despite the Library not yet being recognized as a national library, Spofford wrote, “[A]lthough this National Library is entitled by law to a copy of every work for which a copyright is taken out, it does not receive . . . more than four-fifths of such publications.”42 Thus, he encouraged Jenckes to transfer the copyright system to the Library and to him as “one single responsible officer.”43

Less than a week later, Jenckes did just that, modifying a bill largely focused on revising the patent laws and creating the first federal trademark statute.44 Less than three months after that, the bill was signed into law by President Grant. Spofford essentially upended the entire copyright system overnight.45

Upon enactment, the Librarian took control of “all records and other things relating to copyrights and required by law to be preserved,” and would “perform all acts and duties required by law touching copyrights.”46 All of the records and works that had been deposited in the Interior Department (and before that the State Department) and the district courts were removed to the Library of Congress.47 One estimate puts the records turned over to be 150,000.48 Going forward, federal copyright protection required recordation with the Librarian, and the deposit of two copies of each work with the Library.49

From the perspective of increasing the Library’s collections, Spofford’s moves were a success. In an 1837 survey, the Library was ranked fifth among American libraries with only 24,500 volumes.50 The year after the 1870 Act, the Library received 19,826 works, leading the Librarian to write that a copyright system with “one central office in Washington appears to give uniform satisfaction to the authors and publishers of the country.”51 By 1876, the Library essentially tied for first with 300,000 volumes.52 In “one decade the Library of Congress had tripled in size,” with copyright deposits representing “40 percent of its collections.”53

Need for the Copyright Office

Although the 1870 Act was a coup for the Library in expanding its collections, Spofford had little interest in stewarding the copyright system. As one commentator wrote, “the duties of the Librarian consisted of the ministerial functions of recordkeeping, filing reports, and providing records of copyrights upon request.”54 Spofford would have been “ill-equipped to assume any broad” responsibilities as he was “not a lawyer, but a collector of books, a librarian in the purest sense, and he viewed the copyright procedure almost entirely as a means of enriching the collections of the Library of Congress.”55 Thus, although Spofford evidently “personally recorded entries and did much of the work,”56 he “had no time and apparently gave little or no thought to interpreting copyright law or examining copyright deposits to determine whether they conformed with statutory requirements.”57

Spofford’s disinterest with the copyright system became clear shortly after the 1870 Act’s adoption, as he “almost immediately” requested relief from the substantial increase in deposits.58 “In the annual reports of 1872 and 1873 he expressed his dissatisfaction with the task of registering commercial prints and labels (approximately 5,000 annually) which he thought should be transferred to the Patent Office.”59 By 1874, Congress granted Spofford’s request, allowing the Library to focus on “pictorial illustrations or works connected with the fine arts,” but having the Patent Office consider the copyrights in “prints or labels designed to be used for any other articles of manufacture.”60 The United States lived with this system until 1939 when these functions moved back to the Copyright Office.61

Moreover, Spofford felt that the Library should be given additional resources in light of the additional work created by the 1870 Act. In his 1870 report, Spofford wrote:

The fact that upward of five thousand copyrights have been recorded in the office during less than six months’ operation of the law, with the great additional labor and responsibility involved, suggests the necessity of increased assistance being provided for the Librarian. I have been obliged to employ two of the Library force constantly upon the business of recording copyrights and preparing certificates of the same, besides devoting more than half of my own time to the prompt dispatch of the business involved. To continue this with the present force at my disposal, and still keep up the efficient administration of the rapidly growing Library, with its catalogues and accessions, is quite impossible.62

Having received no relief, five years later, he warned, “If left in its present condition, the neglect of Congress will soon place its Librarian in the unhappy predicament of presiding over the greatest chaos in America.”63 By 1877, he exclaimed that “about 70,000 volumes are heaped in places so narrow that they cannot be moved for counting” (see figs. 1 and 2).64

Spofford’s concerns were exacerbated by the International Copyright Act of 1891 in two ways. First, it granted copyright protection to foreign authors, further increasing the number of works handled by the Library.65 Second, it required the Library to provide a list of the titles of deposited works to the Treasury Department, which would then print what would come to be referred to as the “Catalog of Copyright Entries.”66 Almost immediately, Spofford complained to Congress again that the Act “has added very largely to the labors” of the Library, but “no additional clerical force has as yet been provided by Congress.”67

In 1897, the Library finally “moved from its overcrowded rooms in the Capitol across the east plaza into its spacious new building.”68 At the same time, Spofford needed someone to focus on the copyright system so that he could work on the collections. By 1896, “administration of the copyright law required over 75 percent of his time and the full-time efforts of 26 of the Library’s 42 employees.”69 As one commentator noted, this led to an “embarrassing situation for the Librarian, as he was unable to keep the copyright accounts and records in presentable order.”70

Founding the Copyright Office

At last, on February 19, 1897, the Copyright Office was established as a quasi-independent department of the Library of Congress with the position of Register of Copyrights created to manage it. This was accomplished through an appropriations bill, which stated that the Register of Copyrights was to “perform all the duties relating to copyrights.”71

On July 22, 1897, Thorvald Solberg was appointed the first Register of Copyrights.72 He had worked in the Library from 1876 to 1889 on its registration and deposit functions, and then began working for the Boston Book Company.73 By the time the Register position was created, he was “a nationally known copyright authority.”74 Recognizing the importance of the new position, Congress evidently had waited to know who would be appointed Register before creating the position, and President McKinley interviewed Solberg before his appointment.75

Solberg took swift control of the copyright system. Within two years, the Copyright Office began providing its own report to Congress as an appendix to the Library’s official report, an act that no other department of the Library performed.76 Solberg also took control of the catalog that the Treasury Department had been preparing, reorganizing it, providing indexes, and including more information so that it might be used as a means of searching the Copyright Office’s records without coming to the Office itself.77 Because of his interest, full responsibility for publication of the catalog eventually was moved to the Copyright Office.78 And, by the turn of the century, the Copyright Office reported to Congress significant improvements in the administration of the copyright system.79

From the beginning, the Copyright Office played a central policy role. As one commentator noted, Solberg “proved ambitious, and established the Office as a legislative and policy expert, writing recommendations and drafting legislative proposals that would eventually become the Copyright Act of 1909.”80 For example, in his 1901 report, Solberg called for “new copyright legislation” to replace what he perceived as “antiquated” provisions that were “inadequate,” “inconsistent,” and “confusing.”81 He repeated this request again and again in his reports from 1901 through 1904.82

At Solberg’s urging, copyright revision became an issue of such national importance that President Roosevelt referenced it in his December 5, 1905, State of the Union message.83 Of particular note, throughout the message, the President refers to the administration of the copyright system by the Copyright Office, not the Library of Congress. Then, in 1905 and 1906, the Copyright Office went to work meeting with organizations and drafting what would become the Copyright Act of 1909.84

Even the Library recognized the primacy of the Office’s policy role. When the draft 1909 bill was presented to Congress, the Librarian made clear that it was a “copyright office bill.”85 And when the House and Senate committees worked on redrafting it, they collaborated directly with the Register.86

The Office continued to grow and develop under Solberg’s leadership until he retired in 1930 on his seventy-eighth birthday. It also modernized. For example, in 1922, it “discontinued the practice of handwriting the documents and began to type them with a special typewriting machine” (see figs. 3 and 4).87 “Under [Solberg’s] care, the Copyright Office grew from a handful of employees to more than one hundred professional staff and took on the many roles that are still critical to the mission of the Office today.”88

Modern Day

Today, the Copyright Office is central to the copyright system. In 1996, Congress clarified that the Register has an equivalent position to that held by the head of the U.S. Patent and Trademark Office.89 It also made clear that the Register’s responsibilities include advising Congress and federal departments, participating in international meetings, and conducting copyright studies.90 Moreover, the Copyright Office has been given new responsibilities as Congress has protected new categories of works (see fig. 5).

In addition, in the Copyright Act of 1976, Congress separated the registration deposit and legal deposit requirements again (see fig. 5).91

Thus, the question remains how to further modernize the Copyright Office.92 One idea that has received growing attention is making the Register a presidential appointee, which would allow him or her to promulgate rules directly instead of going through the Librarian.93 Some support this as a natural evolution of the copyright system.94 Others do not, raising concerns that the Office will be politicized.95 In the end, one thing is clear: the copyright system will continue to develop in the years to come.

Endnotes

1. Joshua L. Simmons, The Next Great Copyright Office, 7 Landslide, no. 6, July/Aug. 2015, at 22.

2. 1 William F. Patry, Patry on Copyright § 1:17 (2016); see also Andrew Law’s Privilege (1781), Primary Sources on Copyright (1450–1900), http://www.copyrighthistory.org/cam/tools/request/showRecord?id=record_us_1781a (last visited Feb. 14, 2019).

3. Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States 87 (1879).

4. Act for the Encouragement of Literature and Genius, 1784 Conn. Acts & Laws 133 (1783), http://www.copyrighthistory.org/cam/tools/request/showRecord?id=record_us_1783a.

5. Act of May 21, 1790, § 3, 1 Stat. 124 [hereinafter Copyright Act of 1790].

6. Id.

7. Staff of S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Study No. 21, at 55 (Comm. Print 1960) (authored by Elizabeth K. Dunne & Joseph W. Rogers) [hereinafter Dunne & Rogers].

8. Copyright Act of 1790, § 4.

9. Staff of S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Study No. 20, at 11 (Comm. Print 1960) (authored by Elizabeth K. Dunne) [hereinafter Dunne]; see also Wheaton v. Peters, 33 U.S. 591, 665 (1834).

10. Dunne & Rogers, supra note 7, at 55.

11. Id. at 56 (footnote omitted).

12. Id. at 56 n.8.

13. Dunne, supra note 9, at 12.

14. Act of Feb. 3, 1831, 4 Stat. 436.

15. Act of June 30, 1834, 4 Stat. 728.

16. Id. § 1.

17. Act of Apr. 24, 1800, 2 Stat. 56.

18. Id. § 5.

19. John Y. Cole, Of Copyright, Men & a National Library, 28 Q.J. Libr. Congress 114 (1971).

20. Founding of the Smithsonian Institution, Smithsonian (Jan. 1, 2018), https://www.si.edu/newsdesk/factsheets/founding-smithsonian-institution.

21. Act of Aug. 10, 1846, 9 Stat. 102.

22. Dunne, supra note 9, at 1.

23. Licensing Act 1662, 13 & 14 Car. II c. 38 (Eng.).

24. Dunne, supra note 9, at 1–2.

25. Act of Mar. 17, 1783, 1789 Mass. Laws 369, http://www.copyrighthistory.org/cam/tools/request/showRecord?id=record_us_1783d.

26. Dunne, supra note 9, at 12.

27. Act of Mar. 3, 1855, 10 Stat. 685.

28. Act of Feb. 5, 1859, 11 Stat. 379, 380.

29. Dunne, supra note 9, at 13.

30. Cole, supra note 19, at 118.

31. Act of Feb. 5, 1859, 11 Stat. 379, 380.

32. Act of Mar. 3, 1849, 9 Stat. 395.

33. Cole, supra note 19, at 121.

34. Id. at 123–24.

35. Id. at 117.

36. Id. at 128.

37. Act of Mar. 3, 1865, 16 Stat. 198.

38. David C. Mearns, The Story Up to Now, in Annual Report of the Librarian of Congress for the Fiscal Year Ending June 30, 1946, at 13, 102 (1947).

39. Report of the Librarian of Congress for the Year Ending December 1, 1866, at 5 (1866).

40. Act of Feb. 18, 1867, 14 Stat. 395.

41. Frank Evina, Copyright Lore, Copyright Notices (Dec. 2003), https://www.copyright.gov/history/lore/2003/dec03-lore.pdf.

42. Cole, supra note 19, at 126 (quoting Letter from Ainsworth Rand Spofford to Thomas Jenckes (Apr. 9, 1870)).

43. Id.

44. Act of July 8, 1870, 16 Stat. 210, 212–17 [hereinafter Copyright Act of 1870].

45. Mearns, supra note 38, at 108.

46. Copyright Act of 1870, supra note 44, §§ 85, 109.

47. Id. §§ 109–110.

48. Evina, supra note 41.

49. Copyright Act of 1870, supra note 44, §§ 90–91.

50. Cole, supra note 19, at 116.

51. Annual Report of the Librarian of Congress for the Year 1871, at 4 (1871).

52. Cole, supra note 19, at 129.

53. Id.

54. E. Fulton Brylawski, The Copyright Office: A Constitutional Confrontation, 44 Geo. Wash. L. Rev. 1, 13–14 (1975).

55. Id. at 14.

56. Richard Rogers Bowker, Copyright: Its History and Its Law 298 (1912).

57. Brylawski, supra note 54, at 14.

58. Dunne, supra note 9, at 14.

59. Id.; see also Mearns, supra note 38, at 110.

60. Act of June 18, 1874, 18 Stat. 78; see also Walter J. Derenberg, Commercial Prints and Labels: A Hybrid in Copyright Law, 49 Yale L.J. 1212, 1212 (1940).

61. Pub. L. No. 76-244, 53 Stat. 1142 (1939).

62. Annual Report of the Librarian of Congress Exhibiting the Progress of the Library during the Year Ending December 1, 1870, at 4 (1871).

63. Annual Report of the Librarian of Congress for the Year 1875, at 10 (1876).

64. Annual Report of the Librarian of Congress for the Year 1877, at 4 (1878).

65. Act of Mar. 3, 1891, 26 Stat. 1106.

66. Id. § 4.

67. Annual Report of the Librarian of Congress Exhibiting the Progress of the Library during the Calendar Year 1891, at 4 (1892).

68. Cole, supra note 19, at 129.

69. Id. at 132.

70. Id.

71. Act of Feb. 19, 1897, 29 Stat. 538.

72. 1 Patry, supra note 2, § 1:41.

73. Cole, supra note 19, at 134.

74. Id.

75. 1 Patry, supra note 2, § 1:41.

76. Report of the Librarian of Congress for the Fiscal Year Ended June 30, 1899 app. III (1899).

77. Report of the Librarian of Congress for the Fiscal Year Ended June 30, 1898, S. Rep. No. 55-24, at 13 (1898).

78. Copyright Act of 1909, Pub. L. No. 60-349, § 56, 35 Stat. 1075.

79. Report of the Librarian of Congress for the Fiscal Year Ending June 30, 1900, at 40 (1900).

80. Terry Hart, The Future of the US Copyright Office, Copyhype (Feb. 26, 2015), http://www.copyhype.com/2015/02/the-future-of-the-us-copyright-office/.

81. Report of the Librarian of Congress for the Fiscal Year Ending June 30, 1901, at 60 (1901).

82. Staff of S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Study No. 1, at 1 (Comm. Print 1955) (authored by Abe A. Goldman) [hereinafter Goldman].

83. Report of the Librarian of Congress and Report of the Superintendent of the Library Building and Grounds for the Fiscal Year Ending June 30, 1906, at 111 (1906) [hereinafter 1906 Report].

84. Goldman, supra note 82, at 1–2.

85. 1906 Report, supra note 83, at 113.

86. Goldman, supra note 82, at 3.

87. Frank Evina, Recording Assignments and Related Documents in the Copyright Office Began on July 25, 1870, Copyright Notices (Apr. 2004), https://www.copyright.gov/history/lore/2004/apr04-lore.pdf.

88. Maria A. Pallante, The Next Great Copyright Act, 36 Colum. J.L. & Arts 315 (2013).

89. Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, § 401(a)(3), 112 Stat. 2860, 2887 (1998); 5 U.S.C. § 5314 (1998).

90. DMCA § 401(b)(2), 112 Stat. at 2888; 17 U.S.C. § 701.

91. Compare 17 U.S.C. § 408(b), with id. § 407(a).

92. Simmons, supra note 1, at 22.

93. H.R. 1695, 115th Cong. (2017).

94. Press Release, Copyright Alliance, Copyright Alliance Applauds Introduction of Register of Copyrights Selection and Accountability Act (H.R. 1695) and Urges Prompt Consideration (Mar. 23, 2017), https://copyrightalliance.org/news-events/press-releases/register-of-copyrights-accountability-act/.

95. Elliot Harmon, Don’t Make the Register of Copyrights into a Presidential Pawn, Electronic Frontier Found. (Sept. 25, 2018), https://www.eff.org/deeplinks/2018/09/dont-turn-register-copyrights-presidential-pawn.

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Joshua L. Simmons is an intellectual property partner at Kirkland & Ellis LLP in New York, New York. He focuses his practice on intellectual property litigation and counseling, as well as regulatory and legislative policy.