Ochoa on the Legacy of the Statute of Anne

By Guest Blogger Tyler Ochoa

Today marks the 300th Anniversary of the effective date of the Statute of Anne, the first modern copyright law. Although copyright law has changed a great deal in the past 300 years, the legacy of the Statute of Anne is still with us today. Indeed, many features of U.S. copyright law today can be traced to antecedents that can be found in the Statute of Anne.

Before the Statute of Anne, publishing in England was tightly regulated by the monarchy. No one could lawfully publish a book unless it was first approved by government censors and registered with the Stationers Company, a guild of London printers and booksellers that recognized a private — and perpetual — quasi-copyright among themselves. In 1695, however, as Enlightenment ideas of freedom of speech were beginning to take hold, the last in a series of Licensing Acts expired. For the first time, members of the Stationers Company faced the prospect of lawful competition, especially from Scottish publishers selling cheap reprints of classic books.

Although the Stationers were chiefly concerned with restoring and perpetuating their monopoly, they framed their petition to Parliament in terms of justice for authors. The Stationers argued that authors deserved to be compensated for their work, and that unless publishers were shielded from competition, they could not afford to pay authors for their manuscripts. The eventual result of their petition was the Statute of Anne; and their author-centered argument is evident in the title of the statute, “An act for the encouragement of learning,” and in its stated purpose, which was “for the encouragement of learned men to compose and write useful books.”

The first U.S. copyright act in 1790 was modeled after the Statute of Anne. Its title was “An act for the encouragement of learning,” and it granted to “the author and authors of any map, chart, book or books . . . the sole right of and liberty of printing, reprinting, publishing and vending” the same. The 1790 Act also followed the Statute of Anne in granting copyright for a term of 14 years, which could be renewed once for another 14 years if the author was alive at the end of the first term. By imposing limits on the duration of copyright, the Statute of Anne created the public domain — a body of works no longer covered by copyright that could be freely republished or adapted by anyone.

Over time, copyright law has expanded from maps, charts, and books to include music, paintings, sculpture, photographs, choreography, motion pictures, sound recordings, architecture, and computer programs. But the basic structure of copyright law remains the same: the law grants to authors and artists a bundle of exclusive rights — reproduction, adaptation, public distribution, public performance and public display — in order to encourage the creation of new works, and to encourage the distribution of those works by publisher and distributors.

Two other features of the Statute of Anne that have survived to the present day are registration and deposit. The Statute of Anne continued to require that each new book be registered before publication with the Stationers Company, and a copy of each book had to be deposited with nine different libraries, including the libraries of the Universities of Oxford and Cambridge. Today, although registration and deposit are no longer conditions of copyright protection, the law still encourages registration, and two copies of each published work must be deposited with the U.S. Copyright Office upon registration, one of which is placed in the collection of the Library of Congress.

Two things that have changed are the duration and two-term structure of copyright. In the interests of international harmonization, the U.S. in 1976 adopted a single term of life of the author plus 50 years — a term which has since been extended to life-plus-70 years. (Works created before 1978 have had their terms extended to 95 years from first publication.) This is arguably inconsistent with the U.S. Constitution, which specifies that copyrights may only be granted “for limited Times.” In 2003, however, the U.S. Supreme Court ruled that, despite this language, the duration of copyright is entirely within the discretion of Congress.

As we celebrate the 300th Anniversary of the Statute of Anne, copyright law faces new challenges, including those posed by the Internet, which provides an opportunity for both copyright owners and potential infringers to distribute works cheaply and efficiently. As we face these challenges, it is worth looking back to see how existing copyright law has evolved from its beginnings in the Statute of Anne. The model that Parliament provided in 1710 has served us well for three centuries; and although further revisions may be needed to accommodate new technologies, that model continues to prove useful in today’s world.