I’m not pushing a normative argument with this post, I just think it’s useful to understand how some of the debates over copyright have evolved – or not – over 200 years. Some parts of this article are expanded upon much further in my article The Twilight of the Opera Pirates, which tells the history of the origins of performance rights for music, but I wanted to focus on a different aspect of the Ingersoll Bill than that article looked at.
A question people love to hash out in the public discussions of copyright is whether copyright is a property right. Of course the question is a little misleading, because copyright is obviously at least a form of property, but what people are really debating is whether copyright is substantially equal to real property in the deference given by the law and society. These debates are typically accompanied by calls to history, but these are typically given in a general sense without reference to specific incidents. In the nineteenth century the vast majority of references to property rights in copyright in the records of Congress are in respect to the lengthy fight for international copyright protection, which did not culminate until 1891. However, the Ingersoll Copyright Bill, introduced in 1844 and quickly disappearing, is the exception, and provides I think an interesting window into what people thought about copyright at the time.
At the beginning of 1844, Charles Jared Ingersoll, a Democratic Congressman from Philiadelphia, who also had a career as a lawyer, orator, and playwright, introduced a copyright bill.[His plays included Edwy and Elgiva and Julian, and his widely circulated Discourse Concerning the Influence of America on the Mind included a discussion of copyright law as well.] This bill was intended as a complete revision of copyright law, and was generally far ahead of its time. Amendments Ingersoll added two weeks later further modernized his bill, adding performance rights as well as a system of design protection. However, Section 15 of the bill contained a clause that I haven’t seen in other copyright legislation, at least not phrased this way:
[A]ll copyright shall be deemed personal property, and shall be transmissible by bequest, or, in case of intestacy, shall be subject of the same law of distribution as other personal property.
This clause is obviously aimed partially at insuring that copyrights can be transmitted to heirs, but there’s also a clear intent to assert that copyright is a form of property. Indeed, reading over the bill and amendments, assertions that copyright is a property right are all over the bill – in stark contrast to the then-in-force 1831 Act, which does not use the word “property” once.
After being introduced the bill was referred to a Select Committee, where it failed to go anywhere. However, luckily, one of the members of this Select Committee was an elderly John Quincy Adams, still keeping his daily diary. Ingersoll and Adams were fierce opponents on issues of the gag rule and slavery, so it is perhaps unsurprising that Adams was less than enamored of Ingersoll’s proposal. When the subject was first broached, Adams noted in his diary that he “offered some suggestions as to the natural right of literary property, to the principles of which, as entertained by me, Ingersoll immediately declared his dissent. His principles are radically depraved, and never can harmonize with mine.” A month later the bill was discussed again, leading Adams to describe the bill as “an entire but most incongruous system of copyright property, fit for nothing but to multiply litigation.”
It’s of course impossible to know exactly what Adams was referring to, but the property aspects of the Ingersoll bill seem like the obvious answer (although in fairness the bill is sprawling and pointing to any one aspect is difficult). That said, the very fact that the Ingersoll bill needed to state that copyright is a property right is suggestive that this was not uniformly agreed on.1
An illustrated of the debate as to whether copyright is on par with real property was illustrated in a Senate Report from six years earlier on international copyright, where the Senate Committee on Patents wrote that
The committee do not deem it necessary to argue the question, which has been so much discussed, whether an author has a property in his written and published productions, by natural right, which society is bound to protect. It will, perhaps, be sufficient to admit, that in most cases there will be found equitable considerations, constituting strong claims for aid and protection in some form, to those from whose intellectual labors mankind derive a benefit. Partly with reference to such considerations of justice to authors, and partly with it view to the advancement of literature and science, all civilized nations have established copyright laws.
In the end the Select Committee on the Ingersoll Bill focused on issues of international copyright instead, including a memorial from Nahum Capen, Miscellaneous Memorials on the issue of international copyright from around the country (my scans from the National Archives, 2 MB), as well as a Memorial from John Jay, presumably a son of the former Chief Justice (my scan from the National Archives, 2 MB). These all concerned the recently failed effort for international copyright from the late 1830s, not the question of property in copyright.
One of these days I want to write a proper account of the history of copyright in America from 1789 to 1909, and one of the strands I want to show is that the triumph of international copyright in 1891 also represented a triumph of a property model of copyright, which was then codified by the 1909 Act. In the 1840s the issue was still much more equivocal. As Justin Hughes has demonstrated, the term “literary property” was already in wide use by authors and advocates of international copyright. However, the term “property” was assiduously avoided by others, including the pirate press and opponents of international copyright. In a way, it seems like little about the debate has changed in some 170 years, but the law itself clearly has.
- Of course, the counterargument is that it went without saying in previous bills. ↩