Wednesday, March 12, 2008

Michael Eisner and the History of Copyright

There have been a number of reports on Michael Eisner's statement during an interview at the SXSW on Tuesday that:

I have a long history, obviously, of believing in copyright. I think basically what separated this country from the rest of the world was patents and copyrights. President Lincoln introduced a lot of this, fought for (the idea that) to pay people for their intellectual work was no different than paying them for their physical work. And nobody would think twice about paying someone for their physical work.

including this one at Techdirt which traces Eisner's apparent obsession with Lincoln and copyright, an obsession that is historically inaccurate. During Lincoln's Presidency, only one copyright act was passed, extending copyright to photographs. Lincoln signed the legislation into law on March 3, 1865, six weeks before he was assassinated on April 15th. Lincoln had no role in the legislation, moreover, which originated in the Senate Committee on Patents and the Patent Office. The bill was introduced on February 22, 1865 and passed by the Senate the same day. The House passed it on March 2d, and Lincoln signed it March 3d, 16 Stat. 198.

What did the U.S. Copyright Act look like during Lincoln's presidency? The term of protection was a maximum of 42 years: an original term of 28 years, and a renewal term of 14 years. Copyright was not automatic; to obtain a copyright, you had to register the claim with the clerk of the district court where you resided, and you had to file a renewal claim with the clerk in the 28th year of the original term, and you had to publish your renewal claim in a newspaper. There was a mandatory copyright notice that was expressly a precondition to protection. Deposit copies of the work had to be delivered to the clerk of the district court within three months after publication. Deposit copies also had to be provided to the Smithsonian and the Library of Congress.

The types of works protected were very small: book, maps, and charts; "historical and other" prints; and musical compositions. The following works were not covered: paintings, drawings, lithographs, statues, models, designs of useful articles, and many other everyday literary and visual works. Motion pictures and sound recordings were not in existence. The only performance rights were for dramatic literary compositions; non-dramatic literary and musical compositions had no performance right. There was no translation right, and no right to prevent the making of derivative works.

The only statutory damages were for infringement of the dramatic right; all other types of works were limited to actual damages or the infringer's profits. There was no protection for foreign works: Charles Dickens had visited the United States in 1842 and complained loudly about the piracy of his works. He came again in 1868, three years after Lincoln's death, and again without success since protection was not extended to foreign works until 1891, and even then only upon foreign works being reprinted and republished in the U.S.; how's that for protectionism and throwing mud in the face of copyright as a natural right? The U.S. was during Lincoln's time called "the Barbary Coast of literature" and its citizens "buccaneers of books." We did not adhere to a global multilateral convention until 1955 (the UCC), and Berne until 1989, even though many others had a full century earlier.

Put in the correct historical context then, U.S. copyright law was very different than it is now and had a very very different approach than we do now: a short term, chock full of formalities, with few works protected, and even fewer rights; general tort remedies and no statutory damages other than for dramatic compositions, and of course, we were ripping off foreign authors with glee. Is this what Mr. Eisner had in mind?


Anonymous said...

Lincoln is also the source of the oft-cited quote "The patent system... added the fuel of interest to the fire of genius, in the discovery and production of new and useful things." Perhaps Eisner confuses copyright and patent. Keeping all this IP stuff straight is hard. It isn't like Eisner spent years running a gargantuan copyright owner corporation or anything. Give the man a break.

William Patry said...

You're so right Anon; I tried to play it straight though, the old Jack Webb, just the facts ma'am.

Matthew said...

Your excellent post contains no mention of folsom v marsh (1841) and its role in shaping the fair use doctrine. Could it be that Eisner was confusing president Lincoln with justice story?

Anonymous said...

Lincoln was, of course, very interested in the patent system: he was the only president who held an issued patent. (Jefferson invented many things, but he detested the basic idea of patents.)

Nevertheless, Eisner's claims about Lincoln and copyright are bizarre at best, especially given the US reputation internationally in the mid nineteenth century.

LKB in Houston