I. THE POWERS OF CONGRESS TO ENACT COPYRIGHT LEGISLATION ARE STRICTLY

LIMITED AND CIRCUMSCRIBED BY ARTICLE I, SEC. 8, OF THE CONSTITUTION, AND UNLESS THE ENACTMENT IN QUESTION FOUND SANCTION IN THAT CLAUSE, IT MUST BE CONSIDERED VOID

The power of Congress to legislate on the subject of copyrights, to establish the conditions under which these rights shall be enjoyed and exercised, the period of their duration, and the legal remedies for their enforcement, must be found in Article I, section 8 of the Constitution, which is the source of all the powers that Congress can lawfully exercise on the subject of copyrights and patents. (Trade-mark cases, 100 U. S. 93.)

And unless warrant can be found for a specified copyright enactment in this article of the Constitution, such legislation must be deemed repugnant to the Constitution and void. (Trade-mark cases, 100 U. S. 93.)

The power given to Congress to promote the progress of science and useful arts is restricted to the rights of authors and inventors and their rights are only be secured for a limited time.” (Livingstone v. Van Ingen, 9 Johns 564.)

In the trade-mark cases the power of Congress to provide for the registration of trade-marks under a revision, consolidation, and amendment of the statutes relating to copyrights and patents was declared unconstitutional, upon the ground that there was no such power in the constitutional provision concerning authors and inventors, and their writings and discoveries, as to permit the inclusion therein of trade-marks.

The court defined the word “writings ” as used in the Constitution as being original works found in the creative powers of the mind, and that,

" The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like."

The court stated that trade-marks are not embraced within such class, and therefore Congress had no power to enact such legislation in execution of that constitutional clause.

Again, in Litho v. Sarony (111 U. S. 53) Congress, in an act, extended copyright protection to photographs, and its power to so do was challenged upon the ground that Congress had no constitutional power to protect photographs by copyright, for the reason that a photograph was the product of the mechanical arts and was not a creative work, within the contemplation of the word “ writing” as used in the Constitution.

The court said, at page 56:
“ The constitutional question is not free from difficulty.

“ The eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized :

* To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.'

“ The argument here is that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section, the persons who are to be benefited are divided into two classes, authors and inventors. The monopoly which is granted to the former is called a copyright; that given to the latter, letters patent, or, in the familiar language of the present day, patent right.

"We have, then, copyright and patent right, and it is the first of these under which plaintiff asserts a claim for relief.

“ It is insisted in argument that a photograph, being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author.”

The court came to the conclusion that the photograph in question was original work of art, the product of plaintiff's intellectual invention, of which the plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish, and sell.

The court defined the necessary qualities of a work in order that it should come “ within the purpose of the Constitution in securing its exclusive use or sale to its author." (Litho v. Sarony, 111 U. S., p. 59.)

The court, in order to sustain the validity of the legislation extending copyright protection to photographs, went into the history of copyright at common law in England and in the United States for the purpose of showing the appli

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cation of the word “ writings as used in the constitutional mandate and in the various statutes enacted thereunder by various Congresses.

As in the previous instances, the power of the Congress was challenged because the subjects of the monopoly sought to be protected were not embraced in the word “writings” used in the Constitution, so, in the instant case, we challenge the power of Congress upon the broad ground that any copyright which confers upon the author less than an exclusive right in his work, for a limited time, is in violation of the Constitution.

No decisions were cited—no reputable text writers were quoted—no refer- • ences made to any authority-and no precedents were given, for this unique, extraordinary, and exceptional patent legislation.

The legislation was subversive on the very fundamental principles of copyright, which, in the ordinary and legal acceptation of that term, means

monopoly ” for a limited period—the right to exclude the world from the free use and employment of a work for a limited period.

In Trade-mark cases (100 U. S. 93) a statute was declared unconstitutional nine years after its enactment.

In Pollock v. Farmers' Loan & Trust Co. (157 U. S.) the statute which was declared unconstitutional, was modelled upon a statute enacted in 1864. The Supreme Court held it void in 1894.

The court, in Litho v. Sarony (111 U. S. 53), accepted the following as the definition of copyright:

“ According to the practice in legislation in England and America, says Judge Bouvier, (2 Law Dictionary, 363), •the copyright is confined to the exclusive right secured to the author or proprietor of a writing or drawing which may be multiplied by the arts of printing in any of its branches.'”

The extent of the exclusivity which is conferred upon the inventor or author is such that even the government which grants the letters patent, or registers the copyright, is excluded from any participation in these rights.

Mr. James Bradley said, in James v. Campbell (104 U. S. 356, p. 357) :

“ That the Government of the United States when it grants letters patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which can not be appropriated or used by the Government itself without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser, we have no doubt.

The Government of the United States, as well as the citizen, is subject to the Constitution; and when it grants a patent, the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor.” In United States v. Bell Telephone Co. (167 U. S. 250) it is said :

Counsel seems to argue that one who has made an invention and thereupon applies for a patent therefor occupies, as it were, the position of a quasi trustee for the public; that he is under a sort of moral obligation to see that the public acquires the right to the free use of that invention as soon as is conveniently possible. We dissent entirely from the thought thus urged. The inventor is one who has discovered something of value. It is his absolute property. He may withhold the knowledge of it from the public, and he may insist upon all the advantages and benefits which the statute promises to him who discloses to the public his invention.”

A copyright statute which exacts that as a condition for the author's right to make a profitable use of one or more of the several rights secured to him under his copyright, the general public may make a similar use thereof by the payment to him of a price fixed by the statute, is not a monopoly,” nor an exclusive right. It is the very antithesis of copyright and is at complete variance with the meaning of the word “copyright” as used and defined at common law and in the decisions and the statutes.

The report of the Committee on Patents on the act of 1909, which dealt with the mechanical reproduction of musical works (60th Cong., 2. sess., Rept. No. 2222, H. R., Feb. 2., 1909, to accompany H. R. 28192) read in part as follows (p. 7):

“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, that upon the ground that the welfare of the public science will be served and progress of science and useful arts will be promoted

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by securing to authors for limited periods the exclusive rights to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people in that it will stimulate writing and inyention, to give some bonus to authors and inventors."

The committee undertook to place a most remarkable interpretation upon Article I, section 8 of the Constitution. It defined that article as seeking to benefit the public welfare by stimulating writing and invention by yielding to authors and inventors some bonus."

This is absolutely the first time that the phrase “by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," had been defined as meaning the giving of some bonus."

The Constitution does not refer to any bonus. It stipulates the consideration that shall be paid to the author for making known his work, i. e., to secure to him for limited times the exclusive right to his writings.

And while Congress may or may not act in the matter of the enactment of copyright legislation, if it does act, its power - is circumscribed, limited, and restrained to granting to the author that which the Constitution says shall be given to him : the exclusive right to his writings for a limited period.

The consideration, the reward or price, is fixed in that immortal document, in the words: By securing for limited times, to authors

the exclusive right to their respective writings

Having empowered Congress to give to the author the exclusive right, the framers of the Constitution realized that such a grant would involve the creation of a monopoly, and so that it might not be exercised in perpetuity they provided that that monopoly should be enjoyed but for limited times.

They further provided that the power should only be exercised with respect to authors and inventors of original work, which involved novelty, invention, discovery, and other creative works. (Trademark Cases, 100 U. S. 94.)

The power was to be exercised only with respect to writings which “meant the literary productions of authors." (Lithograph v. Sarony, 111 U. S. 58.)

The object was to promote the progress of science and the useful arts, so that after the author or patentee had enjoyed, first, his monopoly in the thing which he wrote, or in which his invention is embodied, the public, at the expiration of the term of the copyright or patent would enter freely into the same enjoyment of the same thing.

If the public could have the enjoyment of the thing patented or the work written, simultaneously with the inventor or author thereof, or in competition with him, at a price fixed by Congress, then the words exclusive right' and or limited times,” would be very innocuous phrases.

But the words secure and “exclusive right” were well-known terms at the time of the adoption of the Constitution of the United States. Long before the adoption of the Constitution those words appeared in the State statutes of 12 of the 13 States of the confederation. They appeared in a resolution of the old Congress, adopted in 1783, and they also appeared in the decisions that construed the English common law and the Statute of Anne on the subject of copyrights.

At common law the author had the exclusive and perpetual right in his intellectual productions, and this exclusive right-the power to exclude others from using his work, was not lost by publication of the work. (Wheaton v. Peters, 8 Peters, 686.)

In 1709 the act of Anne C. 19 was passed. It recited that for the en: couragement of learned men to compose and write useful books, it was enacted that authors of books should have the sole right and liberty of printing and reprinting them for no longer than 14 years.

In the great case of Miller v. Taylor (4 Burr, 2303), decided in 1769 by the judges of the King's Bench, of which Lord Mansfield was Chief Justice, it was held that the statute of Queen Anne was intended merely to give for the term of years prescribed in the statute, a more complete protection; that the statute was a cumulative remedy, and that the statute did not supersede or take away the common-law rights from the author.

In 1774 this decision was overruled by the House of Lords in Donaldson v. Becket (4 Burr. 2408).

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The "court, recognizing the common-law rights of an author in his work, so long as it remained unpublished, held that by the statute of Queen Anne the common-law right in a published book had been destroyed; that is, that the statute had taken away all common-law rights after publication. And hence, in a published work, there was no right to exclude others from publishing the book except that given by the statute, and only during the term of the statutory period.

The old Congress, on May 2, 1783, adopted this resolution :

“On the report of a committee, consisting of Mr. Williamson, Mr. Izard, and Mr. Madison, to whom were referred sundry papers and memorials on the subject of literary property,

Resolved, That it be recommended to the several States, to secure to the authors of any new books not hitherto printed, being citizens of the United States, and to the executors, administrators, and assigns, the copyright of such books for a certain time not less than 14 years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, and to their executors, administrators, and assigns, the copyright of such books for another term of time not less than 14 years, such copy or exclusive right of printing, publishing, and vending the same, to be secured to the original authors, or publishers, their executors, administrators, and assigns, by such laws and under such resctrictions as to the several States may seem proper.” (Wheaton v. Peters, 8 Peters, 681.)

The recommendation to the States was to pass laws to secure to the authors of new books for not less than 14 years from the first publication, the exclusive right of printing, publishing, and vending the same.

Several of the States had already passed laws on this subject and others, in compliance with the recommendation of Congress, did the same, so that at the time of the adoption of the Constitution, 12 of the 13 States (Delaware excepted) had enacted copyright laws securing to authors the exclusive rights in their books for a limited time.

Most of the States prefaced their copyright statutes by preambles in which they stated upon what principles copyright was founded, and what purposes and policies should prevail in protecting it by law.

Common to most of the State laws were the following preambles :

“The improvement of knowledge, the progress of civilization, the advancement of human happiness and the public weal of the community greatly depend on the efforts of ingenious persons in various arts and sciences.” (New Hampshire, Rhode Island, Massachusetts, Georgia, New York, North Carolina, New Jersey, and Connecticut.)

“The principal encouragement such persons can have to make great and beneficial exertions of such nature must consist in the legal security of the fruits of their study and industry to themselves." (New Hampshire, Rhode Island, Massachusetts, North Carolina, Pennsylvania, Georgia, New York, and Connecticut.)

“ The principles of natural equity and justice require that every author should be secured in receiving the profits that may arise from the sale of his works." (Georgia, New York, Connecticut, and New Jersey.)

The preamble to the act passed in the State of Massachusetts, as early as March, 1783, shows in a strong and striking manner the views entertained at that day in this enlightened state of the value of this right. The act was entitled, “An act for the purpose of securing to authors, the exclusive right and benefit of publishing their literary productions for 21 years.” This preamble is as follows:

“ Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences : As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves; and as such security is one of the natural rights of all men, there being no property more peculiarly a man's own than that which is produced by the Labour of his mind:

" Therefore, to encourage learned und ingenious persons to write useful books for the benefit of mankind

The Massachusetts act declares that literary works shall be the sole property of the author for the full term of 21 years from the date of the first publication,

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and that the act shall not extend in favor of any author of any other of the United States until the State of which such author is a subject shall have passed similar laws for securing to authors the exclusive right and benefit of publishing their productions. (1 Laws Mass. 94.) (Wheaton v. Peters, 8 Peters 682.)

New Hampshire and Rhode Island used similar language in their statutes.

The acts of Connecticut, Maryland, New York, Georgia, and North Carolina, recited that “ the author of any book

shall have the sole liberty of printing, publishing and vending the same within this State, for the term of 14 years to commence from the date of first publication in this state."

The act of South Carolina contained the same recitation, and in addition, that the inventors of useful machines, shall have the right and privilege of using and vending their machines for the like term of 14 years.

The acts of New Jersey and Pennsylvania and Virginia recited that “ • the author shall have the exclusive right of printing, publishing and vending the same within the State for the term of 14 years, to commence from the date of the first publication in this State.”

But under the existing governments of the United States, before the adoption of the present Constitution, it was necessary for authors, in order to enjoy the benefits of protection in States other than those in which they reside, to copyright their works in each State having such laws.

Author's rights, therefore, depended on the legislation in the several States as there was no national law relating to copyright. Adequate protection could not be given to authors throughout the United States by a general law. (Livingstone v. Van Ingen, 9 Johns. (N. Y.) 564; Wheaton v. Pet. 684.)

The provisions of the State laws were substantially taken from the English law; and the declarations of principle contained in the preambles had their source in the decisions of the English courts, especially, the decision in Miller v. Taylor.

Story, in 1152 of his Commentaries on the Constitution, says:

“ The copyright of authors in their works, had, before the Revolution, been decided in Great Britain to be a common law right and was regulated and limited under statutes passed by Parliament upon that subject

* *. It was doubtless to this knowledge of the common law and statutable rights of authors and inventors that we are to attribute this constitutional provision."

That copyright was well known as an existing and recognized right, is also evident from the language used by those who were actively concerned in the drafting of the Constitution. The first proposed draft of a Constitution submitted to the constitutional convention did not include any provision as to copyright. Such a provision was first submitted, together with a number of propositions specifying additional powers of Congress in the session of the convention on August 18, 1787.

The clause as then submitted was worded as follows:

“To secure to literary authors their copyrights for a limited time." (Journal, Acts and Proceedings of the convention, pp. 259, 260.)

In their committee to which this and other provisions were referred for final editing the language was somewhat changed so as to let in patent right, and instead of "their copyrights” the words “the exclusive right to their writings ” were used. The word “ secure was retained.

It is of the utmost significance that in dealing with authors the word “ copyright” was eliminated, and there was substituted in place thereof the words “the exclusive right."

In Wheaton v. Peters (8 Pet.. p. 660) the word secure has been defined as follows: “ This word, when used as a verb active, signifies to protect, insure, save, ascertain," etc.

Every word of the Constitution has its proper, precise, and definite meaning. That instrument was framed by the wisest men and with the greatest care. Every clause underwent discussion and was subjected to the strictest and most jealous criticism.

The word “ secure" is not synonymous with " grant " nor with

A good definition of the word secure is contained in the concurring opinion of Mr. Justice Field in the case of Butchers' Union Co. v. Crescent City Co. (111 U. S. 746), where the court, discussing the language of the Declaration of Independence, says at page 756 :

“ These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: “We hold these truths to be self-evident'--that is, so plain that their truth is recog

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convey."