Short history of copyright

[Engel Nyst]

This old post of stinger's made me think. It's not alone, many people ask similarly, how come an image is under copyright if it had no notice. And the answer, of course, is 'if it has no notice, it doesn't mean it's public domain'. Which is correct today. But there's one thing I want to say: in US, this has become true in the last few decades. People's assumption that you need notice for copyright used to be true, for hundreds of years of copyright law.

Here is a timeline, so we can see what happened.[1]

Pre-1790: English law, statute of Anne
In order to secure a copyright, it
- required registration
- required deposit of copies
- required notice.

1790: First copyright act
- required registration
- required deposit of copies
- didn't require notice on all copies, but it required running announcements for 4 weeks in newspapers, with the work and author.

All the works for which any one requirement wasn't fulfilled, fell in the public domain.

1802 - amendment
- required registration
- required deposit of copies
- required running announcements for 4 weeks in newspapers, with the work and author.
- required copyright notice
- false notice was also punishable. ($100 fine, while damages for infringement were $1 per copy)

1831 - major revision
- required registration
- required deposit of copies
- required notice on all copies.
(gave up announcement to the public, in newspapers, for the new claim of copyright)

1865 - amendment
- added protection of photographs
Requirements unchanged.

1870 - major revision
- required registration
- required deposit of copies
- required notice as prerequisite to infringement actions.

1897 - amendments
- required registration
- required deposit of copies
- required notice as prerequisite to infringement actions
- false notice punishable, including fraudulent copyright notice over public domain works.

1909 copyright act
- required registration
- required deposit of copies
- required notice.

Copyright started only at first publication with notice. First publication without notice = public domain.

1976 - current copyright act, first version
- required notice, though with some flexibility for inadvertent publishing without notice
- didn't require registration and deposit of copies anymore, but for statutory damages they were mandatory.

1988 - amendment, Berne convention implementation act
- didn't require notice anymore.
- double the statutory damages.

Berne implementation act became effective in 1989.

So, here we are. When stinger's lawyers told him decades ago to be careful of works falling into public domain if without notices (I assume), they were right. The law changed within our generation. It was true or close enough to true for about 200 years in US, and it became false about 25 years ago.

Look at these numbers. 200 years versus 25, is, to me, mind boggling. The assumptions built on how you obtain or prove copyright went upside down in one generation. It is extremely interesting, and in my opinion, the notice requirement has shaped the cultural behaviors and understanding. Very recently, I read a pre-publication version of a law article on this exact issue, What Notice Did, where the author, a law professor, says "many   Americans   are   unaware   [that copyright is now automatic], believing   instead   that registration  and  copyright  notice  are  required  to  secure a copyright". Not only non-lawyers, she even adds: (my emphasis)

When  I  presented  an  early  version  of  this  project  at  a  faculty  lunch,  I  began  by explaining  that  while  copyright  protection  is  now  automatic,  U.S.  law  used  to  require publication, notice, and registration in order to secure a copyright. My colleagues, brilliant lawyers  all  and  most  of  them  too  young  to  have  run  into  copyright  law  before  1976, expressed great surprise that copyright protection no longer required publication, notice, or registration.

Of course, I would say, people don't know. Notice used to mean something, and something essential, and it's only within our generation that Congress changed it to mean squat. And with it, the idea of infringing behavior, because behaviors that weren't infringing became infringing, in 1978/1989, and, there's no good way anymore to know who can license the work. As for innocent infringement, what can I say, that too changed with it.

It's necessary, of course, to tell people that now the behavior of copying images found without notice is infringing if the images are under copyright.[2] Just it seems worth to note:
- now you can't tell which is under copyright and which isn't! Notice did serve that much: notification to people of a claim of it. Observe registration isn't required either, though useful; deposit copies are not public, and not even identification of the work/author is.
- it might not be surprising to those of you who saw me criticizing Getty lately, that I would be happy to see the law bring back the penalties for fraudulent copyright notices over public domain works.
- it's odd to see the righteous tone of extortion letters (and Getty/LCS FAQs etc), who patronize people as if they're guilty for daring to think that copyright wouldn't exist without notices, when most of US copyright law history threw such works in the public domain. And, according to Prof. Litman, even lawyers don't always know what's up with that.
- I agree with the idea I've seen here multiple times, that the law should make innocent infringement have zero damages. At least that.

[1] Main source http://digital-law-online.info/patry/patry5.html
[2] Unless fair use or de minimis, or a license exists - or fall into one of the other statutory limitations.

[stinger]

Well that clears that up.  Thanks again, Engel for your excellent research and reporting. 

I wonder if younger judges get the history lesson or if they are just taught the law as it exists today.

[aot]

Thank you, Engel, for doing this research! This is gold.

Curious, if anyone on ELI thinks we will see another major change to Copyright laws in the US. If yes, what needs to happen? If no, what's the major impediment?

[DavidVGoliath]

Look at these numbers. 200 years versus 25, is, to me, mind boggling. The assumptions built on how you obtain or prove copyright went upside down in one generation. It is extremely interesting, and in my opinion, the notice requirement has shaped the cultural behaviors and understanding.

Two points I'd like to make.

Firstly, we're closer to 30 years since the last major revision to US copyright laws, but it's actually almost 20 years since the last significant revisions that addressed the advent of the modern internet era. Either way, the removal of mandatory notice of copyright was enacted to as to harmonize US laws with those of the rest of the world - in particular, countries that were party to the Berne Convention of 1887... so it could be said that the US requirement of mandatory notice was, at the date of elimination, out of step with practices in the rest of the world by a hair over a century.

Secondly, the removal of mandatory notification occurred several years before the widespread adoption of home internet connections, and a decade before Napster came into being. Prior to that, the duplication and distribution of copyrighted works required significant - and arguably deliberate - effort on the part of the entity doing the copying.

Fast-forward to the present and nearly everyone has the ability to find and make copies of most audio, photographic, or video files they could want to - all from a device that fits comfortably in their pocket, and often by means which render their acts anonymous and nearly untraceable.

To this end, education is critical to inform people as to the moral, ethical and legal consequences of procuring artistic works without permission or payment. The Napster debacle created, in some circles, an attitude of entitlement that ran along the lines of "this is how I want to be able to use the online ecosystem, legal or otherwise, and I will push back against efforts to curtail my ability to act in the way I want to"

As I have said in other posts: laws lag behind technologies, and lawmakers are not prescient: when 17 USC 512 was written into law almost twenty years ago, I doubt that anyone would have foreseen it as opening up the possibility of entire businesses springing up to exploit user-uploaded content, and profit massively from doing so... operations that would point to their legal immunity and say "Hey, it's not us, it's our users, okay?" with a wry nudge-nudge, wink-wink to one another.

The recent plenary vote in the EU parliament on updates to copyright laws in that territory has shown that lawmakers do, in fact, realise that the internet age has created significant challenges for the arts, and that their laws required amendment so as to strike the appropriate balance between the interests of creators, online services, and the public at large. It will be around two years before the (eventual) EU directive is parsed into the laws of each member state, and a few more years after that until the effects can be accurately gauged. I suspect that US lawmakers - and those in other countries too - will be keeping a close eye on the EU prior to considering any changes to their own legislation.