the common law by statute, there would appear to be no objection to Congress' enumerating and expanding by statute the objects to be covered by copyright.

Professor Crosskey attributes an even more limited intent to the particular wording of the clause.10 His argument is that it was intended only as a limitation on the perpetual copyright granted at common law―as established in 1769 by Millar v. Taylor.11

41

In opposition to the above argument, it can be said that the use of the word "author" in apposition to "writing" persuasively indicates that the protection was to be limited to printed matter, unless we ascribe to the originators of the clause the harboring of a definition of "writing" which was not extant at that time 2 and which is still opposed to the literal or common sense meaning of the term. However, in view of the paucity of evidence bearing directly on the intent of the clause, further analysis of the clause must be made in respect to its legislative and judicial development.

LEGISLATION

Although an important factor in the search for a definition of "writings," the legislative history of the copyright acts does not provide an express answer. To the contrary, congressional discussions of the various bills and the resulting enactments reveal a tacit assumption that there is no problem at all-that Congress may constitutionally include in a copyright statute whatever it wishes. This, of course, cannot properly be accepted as the final word. The question, therefore, becomes this: What rationale can be gleaned from the reports and the acts that will explain the present development of congressional copyright protection?

The first theory to present itself is that the copyright clause was intended to protect literal "writings," meaning such objects as books and periodicals-words written in a form intelligible to all who can read. This is the most obvious and the most easily disposed of limitation on the scope of copyright insofar as legislative history is concerned. Not only is there no recognition of this construction in the congressional reports, but, as will be shown later, from the first enactment in 1790 43 to the most recent codification in 1947,** the acts themselves exceed this narrow definition.

Two other theories, however, are more probable and do find support in the legislative history. It can fairly be maintained that the copyright clause reflects a desire to protect the commercial value of the productive effort of the individual's mind. From this evolves the

1 Crosskey, Politics and the Constitution 486 (1953): "Reading the power, then, in the light of the Statute of Anne and the then recent decisions of the English courts, it is clear that this power of Congress was enumerated in the Constitution, for the purpose of expressing its limitations. And those limitations were expressed because it did

desire, by restricting Congress to the creation of limited rights, to extinguish, by plain implication of the 'supreme law of the land,' the perpetual rights which authors had, or were supposed by some to have, under the Common Law."

41 4 Burr. 2303, 98 Eng. Rep. 201 (K.B. 1769).

See Johnson, A Dictionary of the English Language (1755):

"Author" is given four meanings: (1) The first beginner or mover of any thing. (2) The efficient; he that effects or produces any thing. (3) The first writer of any thing; distinct from the translator or compiler. (4) A writer in general.

"Writing" is given three definitions: (1) A legal instrument. (2) A composure; a book. (3) A written paper of any kind.

But cf. Bach v. Longman, 2 Cowp. 623, 98 Eng. Rep. 1274 (K.B. 1777), in which Lord Mansfield held that a musical composition was a writing under the Statute of Anne. 43 Act of May 31, 1790, c. 15, 1 Stat. 124.

17 U.S.C. (1952).

plausible conclusion that the clause was intended to protect all intellectual property capable of extensive reproduction, and that whenever new methods of reproduction made possible the "pirating" of unprotected works resulting from intellectual effort, the clause could be expanded to include these objects.45

A third conclusion as to the scope of the clause involves the proposition that the first part of the clause "To promote the Progress of Science and useful Arts"-defines and colors the entire clause, and that whatever may be construed as promoting science and the useful arts falls within the definition of "writings."

The later two theories achieve the same result-a broad scope of coverage. The evidence to support either of them, although more implied than express, is convincing. As will be seen by an examination of all the pertinent copyright acts, either of these theories or a combination of them, could be the proper meaning of the copyright clause so far as copyright legislation and proposed legislation is concerned. The Copyright Laws

Act of 1790.-This was the first federal copyright law, specifying maps, charts, and books as objects of protection. Passed only one year after the adoption of the Constitution by a Congress whose membership included many of those present at the Constitutional Convention, the act's constitutionality, it would seem, can hardly be placed in doubt. There was no report accompanying this bill nor any congressional discussion of the copyrightability of the objects enumerated. It should be noted that there is no definition of books in the statute. Books, as used, could include pamphlets, leaflets, folders, a single page, even a single verse or brief statement separately published in short, everything that a literal interpretation of "writings" includes. But if the clause is literally construed maps and charts could not have been protected. Thus from the beginning of the legislative history it became necessary to give the clause a construction other than literal.

48

47

Act of 1802. Copyright protection was extended to those "who shall invent and design, engrave, etch or work... any historical or other print or prints." No report accompanied the act, nor is there any other evidence indicating doubt as to its constitutionality, at least in the minds of Congress. And the same statement concerning the membership of Congress can be made in regard to this act as to the first. It may be surmised that the extension of protection to prints emphasized the need for protection from the pirating of these objects. Act of 1831.19-This was the first general revision of the copyright laws, but the subjects of copyright were still specifically enumerated. Musical compositions and cuts were added to the list. For the first time a report accompanied a copyright act,50 but there was no question

45 In line with this reasoning, it might be argued that the founders, in using the word "writings," used it as the one word that would encompass all the items that needed protection, and intended that it would expand along with technical progress. If the Constitution is a living instrument, it is logical to presume that its component parts must also "live."

46 Act of May 31, 1790, c. 15, 1 Stat. 124.

Howell, The Copyright Law 17 (3d ed. 1952). See also Holmes v. Hurst, 174 U.S. 82 (1899).

48 Act of Apr. 29, 1802, c. 36, 2 Stat. 171. 49 Act of Feb. 3, 1831, c. 16, 4 Stat. 436. (1824), which would have extended copyright to paintings or drawings.

Congress rejected S. 77, 18th Cong., 1st Sess.

50 Report by Mr. Ellsworth of the Committee on the Judiciary to Amend the Copyright Law, H.R. Rept. No. 3, 21st Cong., 2d Sess. (1831). A copy of this report can be found in 2 Copyright Laws of the United States, Petitions and Memorials on International Copyright Laws 1783-1941, at 9-10 (Edwin P. Kilroe Collection in the Columbia University Library).

of constitutionality raised in the report. The committee merely proposed the addition of musical compositions, stating: "It has furthermore been claimed, and, it seems to your committee, with propriety, that the law of copyright ought to extend to musical compositions, as does the English law." 51 It might be profitable to consider the significance of the word "ought" in the report, particularly as indicating a consideration of the increasing need for protection of musical compositions without further question as to whether such protection was possible.

53

Act of 1856.52-Dramatic compositions had thus far been given protection only by implication. Although previous acts did not specifically enumerate dramatic compositions as protected objects, the 1856 act granted the right of public performance in dramatic compositions already subject to copyright. Apparently, Congress thought that such compositions were intended to come within the scope of "books." 54 There was no published report with this bill. Act of 1865.55-Photographs and negatives were expressly added to the list of protected works. Again, without any report or hearing discussing the problem, we find the implied assumption of constitutionality by Congress. In searching for a justification of the protection of photographs and negatives, it is noteworthy that this was the period of emergence of the commercial value of photography, through the famous civil war pictures taken by Mathew Brady.56

This staute also defined "book" for the first time as meaning every volume and part of a volume, including maps, prints, or other engravings contained within the volume.57

Act of 1870.58-With the passage of this act, it became more apparent than ever before that Congress did not consider the constitutionality of its copyright enactments to be a problem, but assumed that the scope of protection was as broad as it wished to make it. Paintings, drawings, chromos, statuettes, statuary, and models or designs intended as works of fine art were added to the enumerated list. The statute also, for the first time, expressly listed dramatic compositions as protected.59

Act of 1909.60-Completely revising, collating, and reorganizing the federal copyright laws, this act became and still is the basic copyright

2 Copyright Laws of the United States, supra note 50 at 9. Act of Aug. 18, 1856, c. 169, 11 Stat. 138.

Protection was given by this statute only to the "grand performing" or dramatic rights and extended to the music only if it was a part of a dramatic work. Id. at 139. Previously, no action was taken on S. 227, 26th Cong., 2d Sess. (1839), which would have secured specific protection to authors of dramatic works.

Act of Mar. 3, 1865, c. 123, 13 Stat. 540.

See Meredith, Mr. Lincoln's Cameraman: Mathew B. Brady (1946). Prior to this act, it was held that a photograph was not a print, cut, or engraving. Wood v. Abbott, 30 Fed. Cas. 424, No. 17938 (C.C.S.D.N.Y. 1866).

Act of Mar. 3, 1865, c. 123, § 4, 13 Stat. 540.

Act of July 8, 1870, c. 230, 16 Stat. 198. Trade-marks were also protected by this act. Id. at 210. But the Supreme Court subsequently held that trade-marks could not be given Copyright-essentially because of a purported lack of originality. Trade-Mark Cases, 100 U.S. 82 (1879).

Act of July 8, 1870, c. 230, § 86, 16 Stat. 212.

Act of March 4, 1909, c. 320, 35 Stat. 1075. Between 1870 and 1909 there were three Copyright acts of interest but they did not extend the scope of protection:

(a) Act of June 18, 1874, c. 301, 18 Stat. 79, limited engravings, cuts, and prints to "pictorial illustrations or works connected with the fine arts." Prints or labels designed for any other articles of manufacture were to be registered in the Patent Office. These limitations were repealed by Act of July 31, 1939. c. 396, 53 Stat. 1142.

(b) Act of Aug. 1, 1882, c. 366, 22 Stat. 181, provided for the placing of the copyright mark on molded decorative articles, titles, plaques, and articles of pottery or metal already "subject to copyright." Presumably, these objects were covered in the 1870 act (Act of July 8, 1870, c. 230, 16 Stat. 198) under "models or designs intended as works of fine art."

law of the nation. It is also the first act accompanied by congressional reports and hearings which discuss the scope of the copyright clause of the Constitution. The subjects of copyright were covered in sections 4 and 5, the former being the general all-inclusive section 61 and the latter designating specific classes to which the work is ascribed. The broader language used indicated a legislative desire to escape from rigorous adherence to the objects specifically enumerated in the statute." 63

62

This was the first copyright law that provided, in addition to enumerated objects, a "catch-all" clause. It can be argued that by section 4 Congress intended to expand the scope of copyright protection to its full constitutional limits. 64 This argument is re-enforced by the proviso at the end of section 5 expressly stating that it is not to limit section 4. In the report accompanying the final draft of the bill as passed, it was stated that

Section 4 is declaratory of existing law. It was suggested that the word "works" should be substituted for the word "writings", in view of the broad construction given by the courts to the word "writings", but it was thought better to use the word "writings", which is the word found in the Constitution. It is not intended by the use of this word to change in any way the construction which the courts have given to it."

The report notes that "Congress and the courts have always given a liberal construction to the word 'writings'." 66

Section 5, in addition to continuing protection for the works enumerated in prior statutes, expanded the list of protected subjects. Certain objects such as compilations and periodicals, which previously might have been included under books, were spelled out. Lectures, sermons, and addresses prepared for oral delivery were added. A most significant change for the future extension of copyright was the

(c) Act of Jan. 6, 1897, c. 4, 29 Stat. 481, prevents "any person publicly performing any dramatic or musical work for which a copyright has been obtained." See also, H.R. Rep. No. 2290, 59th Cong., 2d Sess. (1896).

Section 4: "That the works for which copyright may be secured under this act shall include all the writings of an author."

2 Section 5: "That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:

(a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations;

(b) Periodicals, including newspapers;

(c) Lectures, sermons, addresses. prepared for oral delivery;

(d) Dramatic or dramatico-musical compositions;

(e) Musical compositions;

(f) Maps;

(g) Works of art; models or designs for works of art;

(h) Reproductions of a work of art;

(i) Drawings or plastic works of a scientific or technical character;

(j) Photographs;

(k) Prints and pictorial illustrations:

Provided, nevertheless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act." 63 Section 4 has not been given an all inclusive effect by the courts or by the Copyright Office. See Capitol Records, Inc. v. Mercury Records Corp., 221 F. 2d 657. 661, 665 (2d Cir. 1955); Regulations of the Copyright Office, 21 Fed. Reg. 6021 (1956) (the Copyright Office has fitted all its registrations into the specific classes enumerated in section 5). 4 See 2 Ladas, The International Protection of Literary and Artistic Property § 329 (1938); Meagher, Copyright Problems Presented by a New Art, 30 N.Y.U.L. Rev. 1081, 1085 (1955).

65 H.R. Rep. No. 2222, 60th Cong.. 2d Sess. 10 (1909). The meaning of "author" was not discussed in the reports on the bill. Herbert Putnam, then Librarian of Congress, in speaking of the general terms in the proposed bill, said "the courts have followed Congress in construing it [author] to include the originator in the broadest sense, just as they have held in writings,' as used in the Constitution, to include not merely literary but artistic productions." Arguments before the Committees on Patents of the Senate and House of Representatives, Conjointly, on the bills S. 6330 and H.R. 19853, 59th Cong., 1st Sess. 11 (1906).

66 Id. at 2.

68

use, in subsection (g), of "works of art" rather than "works of fine art" as used in the 1870 law. As indicated by its language and the proviso at the end, section 5 was intended only as a guide in the classification of subjects of copyright. Its practical effect, however, has been the same as the specific enumerations of prior statutes.67 The Copyright Office refuses to register phonograph records under section 5, and it seems that anything outside the classifications of this section has little chance for registration. This refusal is an administrative limitation of the meaning of "writings" to those subjects in section 5, intimating that Congress did not intend to expend its entire constitutional grant by section 4.69 Professor Chafee advances several arguments to support this view: (1) that the protection seems to extend only to subjects within the machinery of the act 70-thus, records, not easily administered under the present act, are not covered; (2) that the word "writings" is to be given a narrower definition in the statute than its constitutional definition." It can be argued also that the proviso at the end of section 5 is modified by the rule of ejusdem generis, and an object like records does not fit, since all of the subjects enumerated convey intellectual conceptions visually.

73

Although, as mentioned above, the extent of "writings" was considered, in neither the preliminary 72 nor the final report 3 accompanying this law was there any discussion of the constitutionality of particular objects finally covered. As in all the previous laws, this lack of discussion shows by implication that Congress felt the enumerated objects fell within the acknowledged broad definition of "writings."

The process of thought in granting protection to new objects is seen in the arguments for protecting composers against the unauthorized mechanical reproduction of music. In the minority view of the preliminary report (later adopted in the final report), it is stated:

If it is proper to extend copyright protection to these mechanical forms of reproducing music, an express provision should be inserted in the law. That was the course adopted when the improvement of photography made a change in the law necessary. Photographs and the negatives thereof were expressly added to the list of subjects of copyright." [Emphasis added.]

Clearly, the thought was not whether the particular object could be constitutionally protected but whether it needed protection because of the progress of its commercial development. In the President's message to Congress in 1905, when speaking of the need to revise the copyright laws, part of his description was "they omit provision for many articles which, under modern reproductive processes, are entitled to protection." 75

See note 63 supra.

See Chafee, Reflections on the Law of Copyright, 45 Colum. L. Rev. 503, 734 (1945). Bowker argues that the effect of the phrase in § 4 is to construe writings as falling within the § 5 classifications. Bowker, Copyright, Its History and Its Law 64 (1912). He thought this gave the constitutional provision its broadest effect. Id. at 66-67. See Chafee, supra note 68, at 734-35.

Id. at 735. Judge Learned Hand accepts Professor Chafee's reasoning in spite of the language of § 4. Capital Records, Inc. v. Mercury Records Corp., 221 F. 2d 657. 665 (2d Cir. 1955) (dissenting on other grounds).

H.R. Rep. No. 7083, 59th Cong., 2d Sess. (1907).

73H.R. Rep. No. 2222, 60th Cong., 2d Sess. (1909).

H.R. Rep. No. 7083, 59th Cong., 2d Sess.. pt. 2. at 4 (1907).

" Id. at 30 (Emphasis added). It should be pointed out that the reports rarely, if at all, distinguish between the objects protected and the scope of the protection. The same considerations are used for both-need for protection and the promotion of science and the useful arts.