Unpublished Works

Yesterday's posting pointed out Senator Hatch and Professor Lee's error regarding unpublished works. Because most people interested in copyright today never practiced under the 1909 Act, it remains a mystery. And if you're not an historian, prior acts are too. Today's posting is an effort to demystify. I leave to others the conclusions, if any, to be drawn from this history. This is merely a Jack Webb blog.

The existence of copyright protection for unpublished works and the source of that protection hearkens back to the famous Battle of the Booksellers, in which the Stationers Company alleged that the 1710 Statute of Anne, which prescribed statutory protection for a fixed term of years (14 plus 14) was supplementary to a perpetual common law right. While in Atkins v. Stationers Co. (1666), the House of Lords had declared that a "copyright is a thing acknowledged at common law," in 1774, in Donaldson v. Becket, the House of Lords, as a body (in other words not just the Law Lords) rejected the claim that common law rights survived the Statute of Anne, thus rejecting the Stationers' claims. There is a difference of opinion whether there was ever a perpetual common law copyright in England, but no one doubted that there was no common law right for published works.

In the United States, in its first copyright opinion, the 1834 Wheaton v. Peters, the Supreme Court held that federal copyright was entirely a creature of statute and that therefore there was no federal common law protection. The Court expressed doubt whether there was state common law copyright in the particular state, Pennsylvania, but didn't hold such protection was impossible. Indeed, the pre-1978 ability of states to protect unpublished works under the common law has never been questioned and most, if not all states other than Lousiana (which didn't have a common law), extended common law rights to unpublished works. And it has never been doubted that such protection could be perpetual, since states are not bound by Article I, sec. 8, cl. 8.

But what about federal statutory protection for unpublished works? There has always been federal statutory protection for certain classes of unpublished works. Section 6 of the 1790 Act, our first Copyright Act, stated "That any person or persons who shall print or publish a manuscript, without the consent ... of the author or proprietor thereof, ... shall be liable to suffer and pay to the said author or proprietor all damages occasioned by such injury ... ." Section 9 of the 1831 Act repeated this, including injunctive relief, as did Section 102 of the 1870 Act and Section 9 of the 1891 Act.

The most recent and important example, though, is Section 12 (originally 11) of the 1909 Act: "That copyright may also be had of the works of an author of which copies are not reproduced for sale." Section 2 added, "That nothing in this Act shall be construed to annul or limit the right of an author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor."

There was no term of protection in the statute for Section 12 works, so the courts created one: the date of registration; the first term ran from that date, and renewal had to be made within 28 years from the registration. Section 12 encompassed a vast body of works, including musical compositions, motion pictures, speeches, and later television programs (a performance has never been a publication, but if there was a publication, protection was still available provided a new registration was made and proper notice affixed). If you look at old registrations and see a small "u" after the registration, that means it was a section 12 registration.