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The Roman Law Roots of Copyright Russ Ver Steeg Maryland Law Review Volume 59 | Issue 2 Article 7 The Roman Law Roots of Copyright Russ Ver Steeg Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Intellectual Property Commons Recommended Citation Russ Ver Steeg, The Roman Law Roots of Copyright, 59 Md. L. Rev. 522 (2000) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol59/iss2/7 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. THE ROMAN LAW ROOTS OF COPYRIGHT Russ VERSTEEG* INTRODUCTION Modern technology-specifically the computer and its uses via the Internet-increasingly demands that we reconsider and rethink copyright law.' This phenomenon is not new. Before computers made us reassess copyright law, other once-new forms of copying, communication, and information transmission did the same for the following: the satellite,2 the photocopier,' the VCR,4 radio,5 sound recording,6 photography,7 the printing press,8 and various forms of television,9 including cable television. 10 Attempting to keep up with technology is one of the things that makes law, and particularly copy- right law, so challenging. The law is constantly scurrying to keep pace with changing technology and societal expectations that evolve in the * Professor, New England School of Law, Boston, MA. J.D., University of Connecti- cut School of Law; A.B. (Latin) University of North Carolina at Chapel Hill. I would like to thank John F. O'Brien, Dean, New England School of Law, and the Board of Trustees for supporting my research with an Honorable James R. Lawton Summer Research Stipend. 1. See, e.g., Monroe E. Price, Reexamining Intellectual Property Concepts: A Glimpse into the Future Through the Prism of Chakrabarty, 6 CARDozo ARTS & ENr. LJ. 443, 443 (1987) ("There is reason for a reexamination of the doctrinal bases of intellectual property law... since intellectual property doctrines are playing an increasingly important role in control- ling information distribution in the formation of new technology."). 2. See MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW § 8.20, at 264-65 (2d ed. 1995) ("Satellite carriers, by retransmitting from satellite to earth, are essentially engaging in secondary transmissions of copyrighted works."). 3. See id. § 10.11 [A],[C], at 328, 330 (describing how the photocopier allows dissemi- nation of copyrighted works "in ways which were not thought possible until recently"). 4. See id. § 10.11 [A], at 328 (explaining that the videocassette recorder empowers any- one to "reproduce and transmit a copyrighted work cheaply and inexpensively"). 5. See, e.g., Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 162-64 (1975) (holding that a restaurant owner's radio reception of music was not a performance and did not violate the copyright of the owners). 6. See LEAFFER, supra note 2, § 3.19, at 99-101 (discussing the uniqueness of sound recordings and its copyright issues). 7. See id. § 1.3, at 6 n.22 (noting that the 1865 revisions to the Copyright Act made photographs a copyrightable subject matter). 8. See id. § 1.2, at 3-5 (reviewing the origin of copyright statutes in response to print- ing press use in England). 9. See, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968) (dealing with the copyright ramifications of community antenna television [CATV] as op- posed to traditional television broadcasts). 10. See, e.g., 17 U.S.C. § 111(c) (1994) (setting forth the licensing requirements for secondary transmission by cable television systems). 2000] THE RoMAN ]LAW ROOTS OF COPYRIGHT wake of changing technology. For example, for the average person, the concepts of "copying" and "fair use" have changed as technology has provided us with the capability of copying greater volumes of ma- terial at greater speeds. When judges and lawmakers confront novel issues, the "law" is rarely clear. In the absence of precedent, they must resolve novel is- sues by considering how matters such as policy, fairness, economic ef- ficiency, and fundamental legal principles can help them in their decisionmaking. It is commonplace to trace the fundamental princi- ples and the policies of American copyright back to the Constitu- tion.'1 In doing so, it is not unusual to provide nodding reference to the Statute of Anne and a handful of English cases that helped shape the historical and the political basis for that progenitor of English copyright law.12 While acknowledging these foundations of modern copyright, this Article takes a different approach through the examination of the Roman law roots of modern copyright. Although it is virtually certain that the ancient Romans did not have a general law of copyright,13 they did develop the legal principles of property, contract, and liabil- ity that have shaped many of the essential building blocks of American 11. See, e.g.,LEAFFER, supra note 2, § 1.3, at 5-6 ("Although the colonies already had their own forms of copyright laws, the Framers of the Constitution recognized the need for a uniform law of copyright and patents." (footnote omitted)). 12. See id. § 1.2, at 5 (noting that the Statute of Anne "became the model for copyright law in the United States"). 13. SeeJ.A. CROOK, LAW AND LWE OF ROME 207 (1967) (stating that one of the general- izations concerning Roman commercial law is that "[t] here was no law of patent or copy- right, [and] no protection for property in ideas"); see also HANSJULIUS WOLFF, RoMAN LAw: AN HISTORICAL INTRODUCTION 58 (1951) (stating that "[a]ncient times did not know such a thing as a copyright"). Matthews explained: In Rome, where there were booksellers having scores of trained slaves to tran- scribe manuscripts for sale, perhaps the successful author was paid for a poem, but we find no trace of copyright or of anything like it. Horace speaks of a certain book as likely to make money for a certain firm of booksellers. In the other Latin poets, and even in the prose writers of Rome, we read more than one cry of suffering over the blunders of the copyists, and more than one protest in anger against the mangled manuscripts of the hurried servile transcribers. But nowhere do we find any complaint that the author's rights have been infringed; and this, no doubt, was because the author did not yet know that he had any wrongs. Brander Matthews, The Evolution of Copyright, 5 POL. Sci. Q. 583, 586 (1890) (internal cita- tion omitted). Additionally, Watson observed that Roman private law rarely manifested an interest in what he calls "a public dimension." ALAN WATSON, THE SPIRIT OF ROMAN LAw 49 (1995). According to Watson, "[t]his absence of a public dimension is marked throughout Roman private law and is one of its most characteristic features." Id. Since copyright, by its very nature recognizes an important "public dimension," this absence may partially explain why the ancient Romans failed to develop copyright law. MARYLAND LAW REVIEW [VOL. 59:522 copyright law today.' 4 Roman law precepts can clearly be seen in nu- merous aspects of copyright doctrine: the essence of copyright as in- tangible property;15 the nature of the public domain; 6 different types 17 of copyrightable works (works of authorship) and the sale of them; ownership of copyrights (including joint authorship and work for hire);' and liability for copyright infringement.' 9 There is little doubt that the greatest gift that the ancient Romans have left to pos- 2 terity has been their law and legal principles. ' This fact may be no less true when it comes to copyright. Thus, it may occasionally prove beneficial to look back to the Roman law origins of copyright when seeking answers to the newest copyright questions. Part I of this Article reviews some of the commonly acknowledged sources of American copyright. Parts I-VII explore specific copyright doctrines whose origins can be traced to preexisting tenets of ancient Roman law: II. Roman Origins of Intangible Property; III. Copyright as a Public Good: The Public Domain; IV. Copyrightable Subject Mat- ter; V. Sale and Other Transfer of Intangibles; VI. Joint Authorship and Work for Hire; and VII. Copyright Infringement. I. COMMONLY ACKNOWLEDGED SOURCES OF AMERICAN COPYRIGHT LAW Virtually all writers who pause to mention the basis of modern American copyright point directly to the precise and explicit language in the Constitution. 2' This language empowers Congress to legislate copyright laws, for the purpose of promoting the progress of science, that give authors, for limited times, the exclusive rights to their writ- 14. See infra Parts II-VII. 15. See infra Part II. 16. See infra Part III. 17. See infra Parts IV-V. 18. See infra Part VI. 19. See infta Part VII. 20. SeeJ.A.C. THOMAS, TEXTBOOK OF ROMAN LAw 3 (1976) (maintaining that "it may be safely said that... Roman Law was the great cultural legacy of the ancient western world to its descendants"); ALAN WATSON, ROMAN LAW & COMPARATIVE LAw 3 (1991) ("Rome's greatest legacy to the modern world is undoubtedly its private law. Roman law forms the basis of all legal systems of Western Europe with the exception of England (but not Scot- land) and Scandinavia."). Watson also noted that the influence of Roman law on the law of England has also been significant, "much greater than is often admitted." Id. 21. See, e.g., LEAFFER, supra note 2, § 1.3, at 5 (noting that since little is known about the Framer's mindset while drafting the Patent and Copyright Clause of the Constitution, "one is left with the language of the Clause itself").
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