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Comr10n LAI'i COPYRIGHT for TEACHERS COMr10N LAI'I COPYRIGHT FOR TEACHERS JAMES E, COOK I. 'INTRODUCTION Copyright is a limited monopoly in a form of expression which resides in the author of a wrli ting. l The authority of the federal government to grant copyright protection is found in the Constitu- tion, Article I, section 8, clause 8, which empowers Congress "To promote the progress of science and th'e useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In speaking of this clause, James Madison wrote, "The utility of this power will scarcely be questioned. n2 But, he also went on to say that copy­ right "has been adjudged, in Great Britain, to be a right of common law."3 And, common law is, indeed, an important source of copy- right protection in the United States as well. The Copyright Act, section 2, provides: Nothing in this title shall be construed to annul or limit the right of the author or pioprietor of an unpublished work, at common law or in equity, to pre­ vent the copying, publication, or use of such unpub­ lished work without his consent, and to -obtain damages therefor. 4 - It should be noted that this section exempts only unpublished works from the formalities of the Copyright Act. After "publica- tion," a term of art in copyright law, the author's sole protec- tion is that afforded by the federal statute. Thus, in one sense, common law copyright is more limited than is statutory copyright. But, there are other facets to common law protection of literary property, and it is the aim of this paper to give a 2 brief treatment of some of them. Of greatest concern shall be the non-statutory protection afforded by the common law to teachers in the materials they prepare for, and present to, their students. Just as the Constitution and the Copyright Act bestow upon authors a limited monopoly in a published form of expression, the common law grants teachers, as authors,S protection in the unpub- lished products of their creativity. Statutorily, the author of a copyrighted work is given a host of rights: to print, reprint, copy, vend, and translate the work1 to dramatize the work, or to convert it to a novel if it be dramatic1 to arrange or adapt it if it be a musical work1 to deliver or present the work in public for profit, and many more. 6 In comparison, the author of an unpub- lished work has the following rights_ at common law: the ownership of the physical work1 the right to its first publication1 the right to limited publication1 the privilege of assigning the rights of first publication and -limited publication1 and the right to secure statutory copyright.' The author's statutory protection lasts for a maximum of 56 years, yet th~ common law copyright in .. ~ an unpublished work is potentially infinite. 8 It appears that, although statutory copyright is broader in s?me respects, the author's common law copyright affords him a good measure of comfort. The reader might wonder why this paper intends to treat only common law copyright. The reasons for this are quite practical. The Copyright Act very plainly states the extent of the author's rights, the formalities required for obtaining copyright, and the authdr's rights upon discovery of infringement. Common law rights 3 are not so clearly delineated. As essentially judge-made state law, common law copyright is not universally structured or uni- formly applied. And, common law rights are not always well under- . stood by the courts trying to apply them. Furthermore~ 'this paper is written with the teacher in mind, not the copyright lawyer. It is the practice of the teaching pro- fession to make its intellectual products available to its students, without consideration of such formalities as the Copyright Act de- mands in return for protection. Since the teacher is more con- cerned with teaching than with application for statutory copyright, common law copyright takes on great importance. Another point for consideration is the fact that the Copyright ~ct protects mainly published works. 9 But nearly everything a teacher prepares for a class is unpublished, in the ordinary ~ense. For this reason common law copyright protection looms large ~s the only source of protection the teacher will have. Finally, many in the teaching profession are unaware of the possibility of statutory copyright protection. for their works • Despite ample evidence of the dollars and cents im­ portance of public utterances to individual and to body politic alike, remarkable little interest in legal protection of the intellectual products in­ volved has been shown by the speakers of lectures, sermons, and addresses who created and deli vered them. Typical reactions of well known contemporary speakers and editors have indicated much awareness of the honor of speaking and publishing, but they have shown themselves relatively uninformed as to the rights they might exercise under the statute. lO And the same can easily be said of teachers with regard to their works. In total, this means that if the teacher is to have pro- tection for his literary works, it will be by common law. 4 II. BACKGROUND OF COMMON LAW COPYRIGHT It has been mentioned above that common law copyright has not always been well understood. This is due to the murky origins of that right. Although copyright, generally, is now considered to be vested in the author of a work, this has not always been the case. ' It was, long ago during the early development of common law, a right belonging to publishers. As far back as 1357, there have been groups of bookbinders and printers who enjoyed the special rights of control over the ll publication of books. The main group, called the Stationer's Company, granted copyright to its members. This was, in effect, a monopoly on literature itself. The Stationers not only controlled the activities of the rank-and-file of the printing trade, they even regulated the number of printing presses which could lawfully be operated. Since authors could not be members of the Company (because they were not publishers), they were excluded from the privilege of exercising copyright, control over their own works. , And so, the "Stationer's copyright" was ".probably the first such right to gain recognition. From time to time, the Crown would interrupt the business- men's control over copyright and grant to an individual printer the exclusive right to publish a certain work. This was accom- plished by the "printing patent," and it was considered to be an exercise of the royal prerogative. Although printing patents were not limited to members of the company, stationers were the most frequent grantees, and the company itself was the grantee of a 12 valuable printing patent from James I in 1603 and 1616. 5 with the ascent of Parliament and the downfall of the royal pre- rogative came the end of the "printing patent." Still, copyright was a publisher's right. Beginning with Henry VIII's struggle with the Church of Rome and continuing through the Interregnum, censorship was a real prob- lem for the English government. One author suggests a line of reasoning which might have crossed the minds of the Tudor monarchs: The preservation of the realm is the first condition of public good. It is therefore necessary to support all those things which uphold monarchy and its order, to oppose all those things which endanger it. Dif­ ference in political and religious matters endangers it. The press, wrongly used, may nourish such dif­ ference. To prevent wrong use, the state must control the press. The most efficient control is absolute. 13 For such reasons, censorship acts were passed which enhanced the already great power of the Stationer's Company. Not only did books pave to bear a "Stationer's copyright" in order to be published, put it also had to be approved by a censor appointed by the crown. 14 The Stationer's grip on copyright finally came to an end with the 15 expiration of the Licensing Act in 1694. To this point, copyright was a publi~her's right. This is not to say that the author was without rights at all. For the right which publishers held was limited in scope. When the author sold his manuscript to the publisher, all the publisher acquired by his copyright was the right to print the work. The copyright owner did not own the subject work as such and was not free to alter it any more than the grantee of a printing patent was free to alter the work he was privileged by the sovereign to publish. 16 This, however, leaves unanswered the major question, "What was the extent of the rights retained by the author?" The common law · courts have attempted answers, but most efforts have failed. The 6 reason for this is that the author's common law copyright is a creature of common law after the fact. The Stationer's copyright was law made ~ businessmen for businessmen. It was not fashioned by the courts, but merely recognized by them. It is not surprising, then, to find that the author's rights were seldom considered. For this reason, courts of a later time were left to guess what might have been the author's rights before publication. III. THE STATUTE OF ANNE Codification of copyright came with the passage of the Statute of Anne in 1709. 17 The full title of the Act is "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned." Immediately one learns that this law vests copyright in the author, not in the publisher, and that it covers pnly published works.
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