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nopoly, for a limited period. And authors would have little inducement to prepare elaborate works for the public if their publication was to be at a large expense, and, as soon as they were published, there would be an unlimited right of depredation and piracy of their copyright.
Now, that was the purpose to be attained and accomplished-the enactment of a general law and an adequate law throughout the United States to protect the rights of the learned men who wrote books and men who made scientific discoveries; and Story points out that the only boon which could be offered to them would be the exclusive right and profit of them as a monopoly for a limited. period.
These men who wrote the Constitution stipulated the price to be paid to authors as a reward for their labors. They realized that the use of the term "the exclusive right" involved monopoly because when the Constitution was written, both at common law and in the jurisprudence of the States, copyright was understood as a monopoly. It was understood as excluding all the world from making any use of the creator's property; and so to prevent Congress from perpetuating the monopoly, they put in the words " for limited
If they had intended that Congress could fix the price for which the work would become available to everybody, then the words "the exclusive right" and "for limited times" would be very innocuous words and would have no place in the Constitution. They understood that by using the words "the exclusive right " they were giving the power to Congress to create a "monopoly "-that's what these words imply. They limited the power of Congress in that direction because, although they knew the author's right had to be exclusive, yet, as a protection to the public, the period for the enjoyment of this monopoly has to be "for a limited time." There can not be any question about that because that provision has been construed by Story and he gives it the same definition.
In the first draft of the Constitution, there was no provision concerning authors and inventors, or their writings and discoveries. In the draft which was submitted on August 18, 1787, this clause appeared:
To secure to literary authors their copyrights for a limited time. (The Journal, Acts and Proceedings of the Convention, pp. 259, 260.)
Mind you, the framers did not use the words "the exclusive right," in that original draft. They used the word "copyrights" in lieu of "the exclusive right." In the final draft the word "copyrights was taken out and a substitution was made by the words "the exclusive right," the most comprehensive term imaginable to convey the notion of absolute and complete domination over the thing created.
There can not be any question about this, that "the exclusive right" has to be the reward-the price-the stipulated consideration to be given to authors to induce them to part with their common law rights.
Now, somebody got up here and asserted that Congress creates property rights in literary works and therefore Congress in creating the property has the right to prescribe the conditions on which it shall be enjoyed.
Well, for the information of that gentleman and for the committee, Congress does not create property. It has been so declared from the common law to.this day in decision after decision. The author is the man who writes and creates the work. He writes a book and that represents his mental creation. It is his labor. He may have spent a lifetime in originating it. The people did not write it or help him write it. The manuscript is his, and it represents, perhaps, a life work of study, toil, and ingenious effort. It is his property and at common law he has the right to do with it whatever he will, and neither Congress nor any other legislative body has the power to tell him what to do with it or to restrict its use.
The framers of the Constitution knew that at common law an author had an absolute right in his literary work. It was his property, but they wanted his book to be published-to be placed at the disposal of the public so everybody could have the benefit and advantage of this man's labors, efforts, and genius, so that they could derive whatever education, recreation, and amusement the work offered. As an inducement to him to publish the work, Congress
We will let you have the unrestricted and absolute use of your work for a limited time, and after the period of protection, it becomes the public's property.
As was so well stated by presiding Judge Baker in the Circuit Court of Appeals for the Sixth Circuit, in a case involving a patent:
The people through their representatives say to the inventor: your property, possession to be yielded at the end of 17 years, and in the meantime we will protect you absolutely in the right to exclude everyone from making, using, or vending the thing patented without your permission." (Rubber Tire v. Milwaukee, 154 Fed. p. 361.)
The exclusive right means the right to exclude others from making use of the property. Congress creates nothing. All that Congress does is this: It says as an inducement to you to surrender your common-law right we will give you the right to exclude everybody from making any use of your creation for a number of years. In Wheaton v. Peters, 8 Pet. 660 the word " secure is defined as "to protect; to insure; to save; to ascertain," etc.
Mr. Justice Field, in the case of Butchers' Union Co. v. Cresent City Co., 111 U. S. 746 shows that the verb "to secure is not synonymous with the verb "to grant."
In discussing the Declaration of Independence, he called attention. to the fact that there were certain inalienable rights which it was proposed to secure to the people of the United States, and says "that among these are life, liberty, and the pursuit of happiness, and to secure these "-not grant them but secure them-" governments are instituted among men, deriving their just powers from the consent of the governed."
At the time of the writing of the Constitution there was at the disposal of the convention Johnson's, Bailey's, Ash's, and Phillip's dictionaries. Johnson's History of the Library of Congress makes reference to the fact that these dictionaries were then at hand and were freely consulted by the framers of the document.
Ash defined exclusive as meaning, "having the power of excluding; debarring; excepting;" and Johnson defines it as "having the power of excluding; denying admission; debarring from participation."
Now, it must be borne in mind that the people did not turn to the Congress for the creation of a new right or a new property. They already had copyright legislation in 12 of the States. What they were seeking was a general law for the protection of the citizens of each of the States throughout all the States. It is not to be assumed that these men who framed the Constitution were willing to surrender or give up any of the rights they then enjoyed in their own States. It is not to be expected that the various legislatures would adopt a constitution which took away from their own citizens rights which they were enjoying under State statutes. They were very jealous of their rights and the rights of their citizens and when that document was framed they understood that that article of the constitution simply reaffirmed and reenacted what was already understood as the meaning of copyright and as expressive of the nature and character of the word copyright.
Madison in the Federalist, No. 43, published January 25, 1783, in discussing this proposition says:
The fourth class comprises the following miscellaneous powers.
1. A power to " promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries."
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States can not separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
An attempt is made here to place an interpretation upon the word "exclusive " that can not be justified. As I stated at the outset, you can not place upon that word its present-day meaning or the meaning which the broadcasters would like to attribute to it. We are bound by the meaning given to it at that time when these men sat in convention and phrased the fundamental law of the Nation. Those men were scrupulously careful of the rights of the citizens of the respective States, and none of them was willing to surrender or yield up for one moment any right which they had then enjoyed under their State laws.
Chancellor Kent, in 1812, discusses in Livingstone v. Van Ingen, 9 Johnson, 572 (New York), the men who framed the Constitution, as well as the men who sat in the conventions that adopted it:
There were members in that legislature, as well as in all the other departments of the Government, who had been deeply concerned in the study of the Constitution of the United States, and who were masters of all the critical discussions which had attended the interesting progress of its adoption. Several of these had been members of the State convention, and this was particularly the case with the exalted character, who at that time was chief magistrate of this State (Mr. Jay), and who was distinguished, as well in the council of revision as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature.
And at page 574:
For everyone acquainted with the history of those items well knows that the principles of the Constitution, in the progress of its adoption through the United States, were discussed in the several conventions and before the public by men of the most powerful talents and with the most animated zeal for the public welfare. There were many distinguished individuals, and none more so than the one to whom I have referred, who had bestowed intense thought not only upon the science of civil government at large but who had specially and deeply studied the history and nature, the tendency and genius of the Federal system of government, of which the European confederacies had given us imperfect examples, and to which system, as improved by more skillful artists, the destinies of this country were to be confided. Principles of construction solemnly sanctioned at that day, and flowing from such sources, as to be regarded by us, and by posterity, as coming in the language of truth, and with the force of authority.
The intent of the constitutional clause was to put into the concisest possible language a mandate to Congress broad enough to embrace all that the States had declared for. The intent was to empower Congress to carry into execution those principles of natural justice and equity which require that those who produce by the labor of their minds be secure in receiving all the profits which arise from their works during a limited time.
The words "exclusive right" are as broad as that common understanding of copyright on the part of the framers of the Constitution. They include all rights, the sole and full liberty," as was used in the first act after the Constitution went into effect, to all the fruits and profits of intellectual labor, and all means necessary to effectually protect these rights. The words "exclusive right" are broad enough to include every profitable use that can be made of the author's work. The word "secure" is broad enough to include any form of protection as a monopoly that may have been necessary to make effectual the exclusive right. It would do violence to these broad expressions to uphold the contention that the author's rights may be limited to withholding the right secured under his copyright during the term hereof, but if he makes any use of it, private parties may make similar use of it upon the payment of a fixed rate scheduled by Congress.
Now, we have the benefit of Marshall's understanding of this provision of the Constitution. He fought in the Revolutionary War. He was the contemporary of the framers of the Constitution. He participated in the discussions and in the debates regarding the Constitution. He expounded this provision of the Constitution, and his statements are the solemn words of truth, conclusive and binding upon all of us.
In the case of Grant v. Raymond, 6 Pet. 241, Chief Justice Marshall, in a few very succinct sentences, clearly states the supreme object sought to be attained by this clause of the Constitution; the means by which the ultimate object might be accomplished; the nature of the consideration paid by the people to the inventor or author for securing the right to the absolute and free enjoyment of his work after the expiration of the period of monopoly, as follows:
To promote the progress of useful arts is the interest and policy of every enlightened government. It entered into the views of the framers of our Constitution, and the power "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," is among those expressly
given to Congress. This subject was among the first which followed the organization of our Government. It was taken up by the First Congress at its second session, and an act was passed authorizing a patent to be issued to the inventor of any useful art, etc., on his petition, "granting to such petitioner, his heirs, administrators, or assigns, for any term not exceeding 14 years, the sole and exclusive right and liberty of making, using, and vending to others to be used, the said invention or discovery." The law further declares that the patent "shall be good and available to the grantee or grantees by force of this act, to all and every intent and purpose herein contained." The emendatory act of 1793 contains the same language, and it can not be doubted that the settled purpose of the United States has ever been, and continues to be, to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received; if this can be done without transcending the intention of the statute, or countenancing acts which are fraudulent or may prove mischievous. The public yields nothing which it has not agreed to yield; it receives all which it has contracted to receive. The full benefit of the discovery, after its enjoyment by the discoverer for 14 years, is preserved; and for his exclusive enjoyment of it during that time the public faith is pledged. That sense of justice and of right which all feel pleads strongly against depriving the inventor of the compensation thus solemnly promised, *
The consideration to be paid, he very clearly sets forth on pages 243, 244, as follows:
The great object and intention of the act is to secure to the public the advantages to be derived from the discoveries of individuals, and the means it employs are the compensation made to those individuals for the time and labor devoted to these discoveries, by the exclusive right to make, use, and sell the things discovered for a limited time. ** The communication of the discovery to the public has been made in pursuance of law, with the intent to exercise a privilege which is the consideration paid by the public for the future use of the machine.
The high lights of that decision are (1) that the settled policy of the United States from the very beginning has ever been and continues to be to confer on authors an exclusive right in their creations for a limited period; (2) the reward to the author for his exertions and surrendering his common-law rights is a grant to him of the exclusive right; (3) the benefit to the public is the absolute right to the free enjoyment of it by the public after the expiration of the period of protection.
Justice Story, in Pennock v. Dialogue, 2 Pet. 1, at page 16, discussed “the exclusive right" mentioned in this constitutional provision. He says at page 16:
The Constitution of the United States has declared that Congress shall have power 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." It contemplates, therefore, that this exclusive right shall exist but for a limited period, and that the period shall be subject to the discretion of Congress.
He points out the objects to be attained by the mandate in the following language:
While one great object was, by holding out a reasonable reward to inventors, and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was 'to promote the progress of science and useful arts;" and this could be done best by giving the public