INTRODUCTION :: For intellectual property lawyers, the first decade of the twenty-first century is a period of history-in-the-making. This perception is reinforced on a daily basis by rapidly changing digital and biomedical technologies, an increasingly globalized economy, and growing public debate about the appropriate subject matter, scope, and duration of intellectual property rights. In copyright law, the issues generating the most heated debate continue to be those pertaining to the law’s division of rights between producers, distributors, and consumers of music. Indeed, music copyright owners, together with members of the motion picture industry, are the vanguard pushing for unprecedented expansion in the scope of copyright, and these owners are on the offensive on the Internet, in the courts, and in Congress. Notably, the dispute at the heart of Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. was instigated by the tens of millions of Internet users exchanging primarily music files over peer-to-peer networks.
These copyright-owner initiatives have drawn passionate opposition from a broad coalition of technology companies, consumer activists, and artists’ groups. The coalition argues that, to promote the progress of science, copyright law should be forward-looking and should not be designed to preserve the legacy business models of publishers and other distributors. Moreover, the argument goes, even if incumbent distributors deserve special consideration, they cannot be trusted to know what legal regime would best serve their long-term interests. Exhibit A for both of these arguments is the 1980s dispute over the VCR, culminating in the Supreme Court’s decision in Sony Corp. of America v. Universal City Studios, Inc. As is well known, film and television publishers considered the VCR to pose a dire threat to their revenues. Jack Valenti, then-Chairman of the Motion Picture Association of America, famously pronounced, “[t]he VCR is to the motion picture industry and the American public . . . what the Boston strangler is to the woman alone.” As is equally well known, the studios’ predictions about the economic effects of the VCR were drastically wrong.
This Article focuses on a similar episode in the evolution of copyright law in which incumbent distributors resisted a legal change that ultimately inured to their benefit. For, ironically, although music copyright owners are among the most aggressive groups seeking to expand the concept of copyright today, their forbears in England resisted the very idea that copyright should apply to music. As this Article relates, music became copyrightable in England primarily through litigation brought by professional composers against music publishers during the eighteenth century. The capstone case was brought by the most famous composer in London at the time, Johann Christian Bach, youngest son of Johann Sebastian Bach and one of the important musical influences for young Wolfgang Amadeus Mozart. Nearly seventy years after copyright had been invented in England, the Court of King’s Bench ruled that musical compositions also were subject to copyright protection.
Within legal scholarship, the struggle for composer’s copyright has been underreported and understudied. Attention to the genesis of music copyright reminds us that copyright was invented to solve a particular problem for book publishers in eighteenth-century England and that the subsequent expansion of copyright’s domain has been neither natural nor inevitable. The concept of author’s rights embodied in copyright law need not extend to all forms of expression. Rather, periodic expansion of the subject matter, scope, or duration of rights under copyright represents outcomes of specific legal and political contests in which the interests of those seeking to broaden copyright generally have prevailed. Current contests, as well as past outcomes, should be evaluated in light of current circumstances, with due attention given to those who gain and lose from the law’s expansion.
There are two other reasons why developing a better understanding of music copyright’s evolution matters. A central question for how the law should respond to music copyright owners’ initiatives is whether to focus on the future of copyright law generally or on the future of music copyright more specifically. History is relevant to how this question should be answered. Those engaged in contemporary debates about music copyright often assume that because digital technologies affect the distribution and creation of many kinds of copyrighted works, music is merely the canary in the coal mine for copyright law. On this view, any changes in the law brought about by music disputes should apply uniformly to all forms of expression. Rights in music implicate a wide variety of interests, and copyright law has been tailored time and again to allocate rights in response to particular conditions prevailing in the music business. For that reason, under current U.S. law, the most complex and ornate portions of the Copyright Act are those that apply to music. An understanding of this history supports arguments that current disputes concerning music copyright may be better resolved with tailored solutions rather than through broad changes in copyright law as a whole.
History also supplies authority for arguments about how copyright has evolved and should evolve. The importance of an accurate understanding of copyright history was brought into stark relief in the Supreme Court’s recent decision in Eldred v. Ashcroft, in which the Court relied almost entirely on its telling of copyright history to interpret the constitutional provision empowering Congress to create federal copyright law. Rather than address the petitioners’ structural arguments, the Court invoked a Holmesian quip-”a page of history is worth a volume of logic” to hold that Congress’ “unbroken” practice of retrospectively extending the term of copyright rendered that practice constitutional.
Importantly, the Eldred Court signaled that copyright history would continue to supply relevant authority in future cases, particularly with respect to any limits the First Amendment might place on rights under copyright. Since disputes about music copyright rank among the most pressing issues of the day in contemporary intellectual property law, it is time that the nuances of music copyright’s evolution be better understood. If the question presented in future cases entails copyright’s governance of music, copyright law’s traditional contours should be ascertained with acknowledgment and understanding of the distinct evolution of music copyright.
This Article begins to close the gap in the legal literature concerning the origins and evolution of music copyright by investigating three deceptively simple questions: (1) when did copyright law first apply to music; (2) how did this change in the law occur; and (3) why did it occur. The inquiry proceeds as follows. Section II supplies a brief, theoretical framework for this history and explains the methodology used in gathering the historical data. Economic theory plays an important role in contemporary copyright discussions, and economic theories of how property rights evolve often are explicitly or implicitly relied upon in these conversations. These theories are functionalist and materialist in orientation, and this Article focuses on the relation between changing material circumstances and music copyright’s evolution. While economic theories may partially explain relevant developments, I argue that the methodologies and focus of intellectual history also are deeply relevant to understanding how music became copyrightable subject matter. Section III revisits the invention of copyright in England in 1710 and the struggle for music copyright between professional composers and music publishers during the course of the eighteenth century. A series of unheralded equity cases led to Bach v. Longman, in which the Court of King’s Bench held that printed music was within the first copyright law, the Statute of Anne. Finally, Section IV briefly analyzes certain aspects of the struggle for composer’s copyright and relates these to contemporary debates about music copyright.