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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
at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying upon his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any further use than what should b derived under it during his 14 years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communicate their discoveries.
A provision, therefore, that should withhold from an inventor the privilege of an exclusive right, unless he should, as early as he should allow the public use, put the public in possession of his secret, and commence the running of th period, that should limit that right, would not be deemed unreasonable. It might be expected to find a place in a wise prospective legislation on such a subject. If it was already found in the jurisprudence of the mother country, and had not been considered inconvenient there, it would not be unnatural that it should find a place in our own.
From the above statements, we deduce the following conclusions: (a) That the purpose of granting the exclusive right by the Constitution was to protect the author or inventor from the danger of competition.
(6) That the effect of the granting of the exclusive right was to exclude the public.from any use or enjoyment of the copyrighted work or patented article, during the limited time prescribed by Congress; that for the privilege of the exclusive right granted to him, the copyright owner or patentee must make full and free disclosure of his copyrighted or patented work at the earliest possible time, so the statutory period of protection should commence to run as early as possible, and to the end that the public may have the full benefit thereof after the expiration of the term of the monopoly.
(c) That this is the consideration demanded by the public, for the protection during the time mentioned in the patent or copyright. In Lithographic Co. v. Sarony, 111 U. S. 53, at page 57, the Supreme Court says:
The construction placed upon the Constitution by the first (copyright) act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.
* * The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the "author or authors of any book or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of 14 years from the recording of the title thereof in the clerk's office, as afterwards directed." Stat. 124; 1. * * * The second section of an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that from the 1st day of January thereafter, "he who shall invent and design * any historical or other print, or prints, shall have the same exclusive right, for the term of 14 years from the recording the title thereof, as prescribed by law."
As inventions new were developed and new reproductive processes introduced, Congress extended the copyright control of the author to embrace such modern reproductive processes, and conferred upon the author the exclusive right to utilize his work in every case, with the exception of mechanical musical devices described in the act of 1909.
In 1831, the acts of 1790 and 1802 were repealed, and the law relating to copyright was embodied in one statute.
In December, 1830, Mr. Ellsworth from the Committee on the Judiciary, made to Congress a report in the following language (Drone on Copyright, p. 90):
Your committee believe that the just claims of authors require from our legislation a protection not less than what is proposed in the bill reported. Upon the first principles of proprietorship in property, an author has an exclusive and perpetual right, in preference to any others, to the fruits of his labor. Though the nature of literary property is peculiar, it is not the less real and valuable. If labor and effort in producing what before was not possessed or known will give title, then the literary man has title perfect and absolute, and should have his reward. He writes and he labors as assiduously as does the mechanic or husbandman. The scholar who secludes him
self and waste his life and often his property to enlighten the world has the best rights to the profits of those labors; the planter, the mechanic, the professional man, can not prefer a better to what is admitted to be his own. Reports of Committee, 21st Cong., 2d sess. (1830-31). Rep. No. 3.
That report is important because it indicates the understanding of the committees of the nature and character of copyright.
Henry Clay's report, made by a select committee consisting of Clay, Preston, Buchanan, Webster, and Ewing, in favor of a national copyright, during the second session of the Twenty-fourth Congress, on February 16, 1837, submitted with Senate bill 223, correctly states the understanding of the principles of copyright that prevailed from the time of the adoption of the Constitution to his day. In that report, among other things, he says:
That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. They are often dependent, exclusively, upon their own mental labors for the means of subsistence; and are frequently, from the nature of their pursuits, or from the constitutions of their minds, incapable of applying that provident care to worldly affairs which other classes of society are in the habit of bestowing. These considerations give additional strength to their just title to the protection of the law.
Chancellor Kent defined the power of Congress under article 1, section 8:
The power given to Congress to promote the progress of science and useful arts is restricted for a limited time.
Showing again the thought that whatever Congress can do it can only do to the extent authorized by the Constitution.
First, the subject matter is "writings and discoveries "; the persons concerned are "authors and inventors." The object to be attainedto promote progress of science and useful arts. How to be attainedby securing to authors and inventors the exclusive right to their respective writings and discoveries." Period of enjoyment" for a limited time." Unless you can find the authority for what is proposed here within the four corners of that clause, you can no more fix the price for radio broadcasting than you can fix the price for beef. The thought that I have just expressed was stated in Litho v. Sarony (111 U. S. 53). There, if you remember, the right of Congress to pass an act extending copyright to photographs was assailed upon the ground that a photograph was a product of the me