[dvd-discuss] 1790 Copyright Act

[John Schulien <jms(at)uic.edu>]

>> Anything granted beyond an author's lifetime
>> is being granted to someone else.
>   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Roy Murphy wrote on 5/29/02:
> It's a doomed argument.  SCOTUS gives special
> consideration to the acts of the First Congress.
> Since the members of that Congress were largely
> the same people who wrote the Constitution, the
> Court presumes that their actions were constitutional.
> Since the First Congress passed the 1790 Copyright
> act with a 14 year term (and a 14 year extension upon
> renewal if the author is still alive and renews), terms
> exceeding the lifespan of the author are presumptively
> constitutional.

I think that the significance of the original copyright
terms is not whether a copyright term can constitutionally
endure past the death of the author -- it's whether
a copyright extension, or even a copyright /renewal/,
can be constitutionally granted "to Authors" when
the author is dead.  The First Congress seemed to imply
otherwise in the first copyright act.

The First Congress explicitly denied even the prospect
of a copyright /renewal/ on works whose authors had
died, much less a retroactive /extension/ of copyrights
on works that are so old that hardly /any/ living authors
remain.

The availability of a renewal term was part of the original
"package" offered to the author in the quid pro quo.
Apparently, the framers considered even /the granting of
a renewal/ as a new "grant", and restricted such grants
to living authors, as opposed to the estates of dead authors.
This appears to be evidence that the framers placed
particular significance on the words "to authors", and
considered them a restriction on their legislative authority.