telae tabulae

occasional essays on copyright, patent, and anything else that might catch my fancy
 by Timothy R. Phillips



The 2002 archive is here.
The 2003 archive is here.
The 2004 archive is here.


November 23, 2005
(Gregorian Lunar Almanac 2005.12th Moon.21st Day)(longish-term link)

Weary me not-2

Every year, someone, somewhere, repeats the facts I am about to repeat. And every year, it seems as though no one is listening. Nevertheless I've decided to take my turn writing a brief historical background to the American Thanksgiving festival.

Religious controversies in 16th- and 17th- century Europe included controversies about the calendar. Some of those who rejected the Roman Pope's jurisdiction continued to include many traditional elements in their worship, including the traditional Christian year. But others rejected the Christian year. The only ordinary holy-day they admitted was Sunday. These latter included some English Christians who had been influenced by Calvinist teachings. Richard Hooker, in his defense of the Book of Common Prayer, describes their school of thought:

[Holy-days other than Sunday] they say we ought to abolish, because the continuence of them doth nourish wicked supersition in the minds of men, besides they are all abused...[Furthermore] it is not they say in the power of the Church to command rest, because God hath left it to all men at liberty that if they think good to bestow six whole days in labor they may, neither is it more lawful for the Church to abridge any man of that liberty which God hath granted, than to take away the yoke which God hath laid upon tham and to countermand what he doth expressly enjoin. They deny not but in times of public calamity, that men may the better assemble themselves to fast and pray, the Church "because it hath received commandment" from God to proclaim a prohibition from ordinary works, standeth bound to do it, as the Jews afflicted did in Babylon. But without some express commandment from God there is no power they say under heaven which may presume by any decree to restrain the liberty that God hath given.
--Richar Hooker, Laws of Ecclesiastical Polity 5.70, 5.71
If Hooker's description is accurate and complete, then his opponents taught that the only days of religious observance that church authorities could require of the congregation, other than Sunday, were extraordinary fasts "in times of public calamity". Their proof-text appears to have been Joel 1.14: "Sanctify a fast, call a solemn assembly. Gather the elders and all the inhabitants of the land to the house of the Lord your God; and cry to the Lord."

The English Puritans who migrated, chiefly from East Anglia, to New England beginning in 1629 tended to hold a doctrine similar to this. The developed form of the theory is described by the the Massachusetts divine Cotton Mather (1663-1728):

No time is to be made holy to the Lord, but what is made holy by the Lord; and if there be no institution of God, the great Lord of time, for a stated time, to be made holy to himself, 'tis a superstition in any man to make it so. Very sensible is the difference between taking a time to do a sacred work, and doing a work to keep a stated time. The light of nature tells us there must be a time for every work; but it is only the fourth commandment of God, that separates one time from the rest, for the constant performance of religious work upon it...Solemn humiliations and thanksgivings are moral duties to be observed pro causis et temporibus. And the direction of Divine Providence in laying before us fresh occasions of them, is to be regarded; which cannot be done if they be made perpetual.
--Cotton Mather, Magnalia Christi Americana
Thomas Hutchinson (1711-1780), writing sometime after Mather, shows the developed application of this theory:
[The settlers of New England] laid aside the fasts and feasts of the Church of England, and appointed frequently, as occasion required, days of fasting and thanksgiving; but, besides these occasional fasts and thanksgivings, they constantly, every spring, appointed a day for fasting and prayer, to implore the divine blessings upon their affairs in the ensuing year; and in the fall, a day of thanksgiving and public acknowledgment of the favors conferred upon them in the year past. If they more readily fell into this practice from the example of the people of God of old, yet they might well have been justified without any example. It has continued without interruption, I suppose, in any one instance, down to this day.
--Thomas Hutchinson, The History of Massachusetts
So in addition to the fasts and thanksgivings proclaimed "as occasion required", the people could rely on having one fast in the spring and one thanksgiving in the fall in any case. Since people always have something to pray for and to give thanks for, they could always state "occasions" even for these two expected festival-days. In this way they got around the prohibition against anniversary holidays while still having two observances "constantly" that they could expect to return every year in season. Both Mather and Hutchinson agree that there was never a perpetual anniversary memorial, year after year, of paraticular providences, blessings, or events long past. The fasting days were set aside as days on which to pray for present mercies. The thanksgiving days were set aside specifically to give thanks for recent providences, though it would not necessarily have been thought inappropriate to call to mind long-past providences also.

Richard Hooker, in the 16th century, knew of self-styled reformers who believed that ecclesiastical authorities could rightly proclaim public fasts. By sometime in the 17th century, some of those who rejected the traditional Christian Year were teaching that church authorities could proclaim days of thanksgiving as well as days of fasting. The lack of thanksgivings in Hooker's description is of interest, but can be put to one side. The East Anglian Puritans who dominated the cultural life of Massachusetts and Connecticut clearly had the custom of proclaiming both public fasts and public thanksgivings.

These fasts and thanksgivings were matters of public record, and so we can find in the public records how the New Englanders implemented the theory that holy-days other than Sunday should be proclaimed only for stated occasions. In June 1632, the Boston Court of Assistants,

Taking into consideration the greate mercy of God, vouchsafed to the churches of God in Germany and the Pallattinate, etc. hath appoyncted the 13th day of this present moneth to be kept as a day of publique thanksgiving throughout the severall plantacions.
--Nathanieel B. Shurtleff, Ed., Records of the Governor and Company of the Massachusetts Bay in New England, Volume 1, Boston, 1853, page 96.
Similarly on August 5th, 1634
It was ordered, that Wednesday, the 20th of this moneth, shallbe kept as a day of publique thanksgiveing throughout the severall plantacions, for the safe arrivall of shipps and passengers this summer, etc.
--Shurtleff, Records of..the Massachusetts Bay, Vol 1. page 123.
The previous Fall, the Court held at Boston on October 1st, 1633
In regard of the many & extraordinary mercyes which the Lord hath beene pleased to vouchsafe of late to this plantacion, viz, a plentifull harvest, ships savely arrived with persons of spetiall use & quallity, etc., it is ordered, that Wednesday, the 16th day of this present moneth, shalbe kept as a day of publique thansgiveing through the severall plantacions.
--Shurtleff, Records of..the Massachusetts Bay, Vol 1. page 109.
The later distinction between thanksgiving for particular blessing, and thanksgiving for all the blessings of the preceeding year doesn't appear clearly in the words these statements themselves. All three orders state particular blessings for which thanks will be given. But the order for the October thanksgiving lists more occasions than the orders for the summer thanksgivings, suggesting that the Fall may already have begun to acquire preeminence as a season for thanksgiving.

These Massachusetts thanksgivings can be compared and contrasted with thanksgivings observed in 17th-century Connecticut. The October 1665 meeting of Connecticut's General Court appointed

a solemne day of Thanksgiving to be kept throwout this Colony on the last Wednesday of November, to returne praise to God for his great mercy to us in the continuation of our liberties and priviledges both Civill and Ecclesiastick; and for our peace and preventing those troubles that we feard by forreigne enemies; and for the blessings in the fruits of the earth and the generall health in the plantations.
--J. Hammond Trumbull, Ed., The Public Records of the Colony of Connecticut from 1665 to 1678, P.A. Brown, Hartford, 1852, page 26.
The October 1666 session used almost same words when it appointed the last day of October 1666 to be kept as day of thanksgiving, as did assemblies of October 1667 and October 1668 when they set thanksgiving on the third Wednesday in November. The assembly of October 1669 used somewhat different words, which make it explict that the Fall thanksgiving was to be a thanksgiving for the benefits of the entire outgoing year:
This Court doth appoynt the 2d Tewsday in November next to be kept solemly throughout this Colony, a publique day of Thanksgiveing, to render our due ackowledgments of thankes and prayse to God for his many mercyes to us the yeare past, in spareing so much of our comforts both of the fruites of the feilds and of the trees as we enjoy; and allso for that health that hath been continued in severall plantations, and that healing of the deaseases that have been affoarded to many amongst us; and for that measure of peace that is yet continued in our societies.
--Trumbull, Public Records of Connecticut from 1665 to 1678, page 122.
The words of the Court of October 11th, 1677, present a striking contrast
Forasmuch as none can be ignorant of the late awfull disspensation of God towards his poore wilderness people, evidently declaring his displeasure in generall against the whole land, although with lengthened out and undeserved patience towards us in this Colony; and yet considering (though his hand is stretched out still in some places, and a black dismall cloud hangs over all,) the unawakenedness and insensibleness of all sortes amonge us, so much appearing in many God-provoaking sins, rather abounding more then ever, than repented of and reformed, to the great greif of authority, ministry and many others of God's people; and farther being in some measure sencible of the hower of temptation allready began in other parts of the world, to God's people, and the gread hazard our dear native country and his Majesties other dominions, especially the churches of people and God in them, are exposed to by the formidable and prevayleing power of the enemie,--this court thought good to appoynt the 21st of November next to be kept a day of fasting and prayer, on the grownds afoarsaid; and do allso recommend it to all the curches and ministers throughout this Colony, as often as they can, to engage themselves and stir up their people to the sorke of solem humiliation and prayer, with turning to the Lord in this our day of Jacob's trouble.

The court appoints the last of October present, to be kept a day of public Thankesgiveing throughout the Colony.
--Trumbull, Public Records of Connecticut from 1665 to 1678, page 328-329.

Times were troubled, so the Court appointed a fast. But the habit of holding a day of thanksgiving in Connecticut in the Fall, after the Court's general meeting, was strong enough that the Court appointed a thanksgiving day also.

Later documents show how the custom continued to evolve. Manasseh Minor, of Stonington, Connecticut, kept a diary beginning in 1696, in which he sometimes lists fasts and thanksgivings

March 1697
17 a fast day thro the colony

November 1697
3 Thenksgiving day in publik &

February 1698
2 a great snowing candlmus day
13 No meetin becase of the snow

March 1698
2 thanksgivin here in Stonington
27 Elihu publisht warning for the sacrament & of a fast day

November 1698
9 Thanks givin day in publik &
--Frank Denison Miner and Hannah Miner, The Diary of Manasseh Minor Stonington, Conn. 1696-1720 (1916), page 21ff.

The entry for March 2nd 1698 (the number refers to the almanac-year beginning in January) reminds us that town officials as well as provincial officials could appoint days of observance. The entry for February 1698 shows that this farmer was not afraid to use some of the old names for particular dates, such as "Candlemas" for February 2nd.

An article titled "A Young Man's Journal of a Hundred Years Ago", by Simeon E. Baldwin, published in the Papers of the New Haven Colony Historical Society, claims to transcribe selections from the journal of "a young man, not a New Havener, though a recent graduate of Yale College, who was earning his support by teaching, and who writes sometimes here [i.e. in New Haven], sometimes at Albany, and sometimes by the tavern-fire on a vacation trip" in the years 1782-1785. Baldwin, however, gives no cataloguing information and never names the author of the journal, nor describes the manuscript beyond stating that its pages are "yellow and faded". If one is nevertheless willing to accept Baldwin's word that the journal exists, is genuine, and that Baldwin's transcriptions are accurate, one can find in it the following:

November 28th [1782]. This is...the day appointed by [the Continental] Congress to be observed as a day of Thanksgiving...It gives me but little pain that my health would not permit me to enjoy the usual externals of a Thanksgiving Day, since the customs are so very different [in Albany, New York] from those to which I have been accustomed in New England. 'Tis true it in some measure puts a stop to their business, & on that account seems a damp to their spirits. To be sure none of that lively joy which is there so conspicuous & seems to animate the countenance of all we meet, is visible here. They have no extraordinary dinner, nor in their cookery do they at all deviate from the usual custom of each day, & I could wish that I had reason to think that what is wanting in external show, was replaced in the superior devotion and sincerity of their service, for they have two meetings in the day; in the afternoon a charity sermon.
-- Simeon E. Baldwin, "A Young Man's Journal of a Hundred Years Ago", in Papers of the New Haven Colony Historical Society, Volume 4 (1888), pages 196-197.

Whatever the case for Baldwin's "journal", Harriet Beecher Stowe's fictionalized memoir of her childhood, Oldtown Folks, can probably be accepted as giving an accurate picture of an early 19th-century New England Thanksgiving. The picture she presents matches that given by Baldwin's "young man". Stowe writes

The king and high priest of all festivals was the autumn Thanksgiving....

There were signs of richness all around us,--stoning of raisins, cutting of citron, slicing of candied orange-peel. Yet all these were only dawnings and intimations of what was coming during the week of real preparation, after the Governor's proclamation had been read.

The glories of that proclamation! We knew beforehand the Sunday it was to be read, and walked to church with alacrity, filled with gorgeous and vague expectations....

We children poked one another, and fairly giggled with unreproved delight as we listened to the crackle of the slowly unfolding document. That great sheet of paper impressed us as something supernatural, by reason of its mighty size, and by the broad seal of the State affixed thereto; and when the minister read therefrom, "By his Excellency, the Governor of the Commonwealth of Massachusetts, a Proclamation", our mirth was with difficulty repressed by admonitory glances from our sympathetic elders. Then, after a solemn enumeration of the benefits which the Commonwealth had that year received at the hands of Divine Providence, came at last the naming of the eventful day, and, at the end of all, the imposing heraldic words, "God save the Commonwealth of Massachusetts."

And now came on the week in earnest...Thanksgiving time was the time for errands of mercy and beneficence throught the country; and Uncle Fliakim's immortal old rubber horse and rattling wagon were on the full jump, in tours of investigation into everybody's affairs in the region around...Moreover, my grandmother's kitchen at this time began to be haunted by those occasional hangers-on and retainers, of uncertain fortunes, whom a full experience of her bountiful habits led to expect something at her hand at this time of year. All the poor, loafing tribes, Indian and half-Indian, who at other times wandered, selling baskets and other light wares, were sure to come back to Oldtown a little before Thanksgiving time, and report themselves in my grandmother's kitchen....

Great as the preparations were for the dinner, everything was so contrived that not a soul in the house should be kept from the morning service of Thanksgiving in the church, and from listening to the Thanksgiving sermon, in which the minister was expected to express his views freely concerning the politics of the country, and the state of things in society generally, in a somewhat more secular vein of thought than was deemed exactly appropriate to the Lord's day....

Although all servile labor and vain recreation on this day were by law forbidden, according to the terms of the proclamation, it was not held to be a violation of the precept, that all the nice old aunties should bring their knitting-work and sit gently trotting their needles around the fire; nor that Uncle Bill should start a full-fledged romp among the girls and children, while the dinner was being set on the long table...[Dinner was] turkey, and chickens, and chicken pies, with all that endless variety of vegetables which the American soil and climate have contributed to the table, and which, without regard to the French doctrine of courses, were all piled together in jovial abundance...After the meat came the plum-puddings, and then the endless array of pies....

When all was over, my grandfather rose at the head of the table, and...called their attention to the mercies of God in his dealings with their family. It was a sort of famly history, going over and touching upon the various events which had happened. He spoke of my father's death, and gave a tribute to his memory; and closed all with the application of a time-honored text, expressing the hope that as years passed by we mght "so number our days as to apply our hearts to wisdom" and then he gave out that psalm [Psalm 78] which in those days might be called the national hymn of the Puritans....

And now, the dinner being cleared away, we youngsters, already excited to a tumult of laughter, tumbled into the best room, under the supervision of Uncle Bill, to relieve ourselves with a game of "blind-man's-buff", while the elderly women washed up the dishes and god the house in order, and the men-folks went out to the barn to look at the cattle, and walked over the farm and talked of the crops.

In the evening the house was all open and lighted with the best of tallow candles, which Aunt Lois herself had made with especial care for this illumination. It was undnerstood that we were to have a dance, and black Caesar, full of turkey and pumpkin pie, and giggling in the very jollity of his heart, had that afternoon rosined his bow, and tuned his fiddle, and practised jigs and Virginia reels, in a way that made us children think him a perfect Orpheus....Of course the dances in those days were of a strictly moral nature.
--Harriet Beecher Stowe, Oldtown Folks, Chapter 27.

This long extract from Stowe's even wordier chapter reveals a number of details in the "Oldtown" thanksgiving that have since become familiar throughout the country: The air of expectation, the family gathering, the church-service, and the turkey and pumpkin pie. It also shows that the practice of the early 19th century retained similarities to the practice of the 17th and 18th centuries. It was expected that there would be a thanksgiving in the Fall, but the precise date was not known until shortly beforehand. The thanksgiving was officially proclaimed as an occasion on which to give thanks for the blessings of the outgoing year, some of which were enumerated in the Governor's proclamation.

Stowe's words suggest that the grandfather's speech, "a sort of family history", might have included a recitation of benefits even of years long gone. And the 78th psalm, which was sung in a metrical paraphrase to the tune Saint Martin's, explicitly begins with a mention of providences of old:

Let children hear the mighty deeds
which God performed of old,
which in our younger ears we saw,
and which our fathers told.
So the blessings of the outgoing year were set in a context of God's ongoing providences to the family from long ago to the present day.

There is no mention in all of these sources of the Plymouth colony in Massachusetts, or the supposed "Pilgrims' first Thanksgiving" of 1621. This is because it is simply wrong to associate the Thanksgiving holiday uniquely, or even specially, with the Plymouth colony or with the religious separatists who formed a significant proportion of its population. Though New-Plimouth (as it was called) was the first English settlement in present-day Massachussetts that yet survives, still it was only one of over a dozen settlements that had been attempted in New England by 1625.

The Plymouth separatists had ideas about the Christian calendar similar to those of the Puritans. They shared with the Puritans the practice of proclaming fasts and thanksgivings for particular occasions. Nathanial Morton's New England's Memorial (1669) notes that while the separatists were living in the Low Countries and debating whether to emigrate to North America, public fasts were part of the process of discernment

The reasons of their removal...being debated first in private, and thought weighty, were afterwards propounded in public; and after solemn days of humiliation observed both in public and private, it was agreed, that part of the church should go before their brethren into America, to prepare for the rest...
--Nathaniel Morton, New England's Memorial. Congregational Board of Publication. Boston, 1855, page 13.
The 1622 narrative known as Mourt's Relation states that after the harvest of 1621, some of the Plymouth settlers enjoyed several days of feasting and sports. It nowhere states that this was a religious thanksgiving-day of the kind recognized by the separatists. But even if it was, it cannot be viewed as having "instituted" anything, or set a precedent for any later practices. The practice of observing fasts and thanksgivings instead of the traditional Christian holidays had already been instituted. In the form of fasts, at least, it had already been practiced east of the Atlantic and, indeed, it was considered to have the warrant of scripture. Furthermore, their rejection of anniversary holy-days as perpetual memorials of specific providences would have prevented the separatists from establishing an anniversary commemoration of their first successful harvest. The Plymouth harvest-festival of 1621 might have set the precedent of having harvest-festivals in Plymoth itself, but there is no evidence that it did so. It seems to have been a one-time event.

But all this is beside the point. In the years 1629-1643, thousands of immigrants, a significant proportion of them Puritans from East Anglia, began arriving in Massachusetts and Connecticut. These Puritans, and not the separatists of the little Plymouth colony, were the ones who dominated the religious and political life of these Colonies throughout the 17th century. (David Hackett Fisher, Albion's Seed, Oxford, 1989.) It is these Puritans, not the separatists, whose calendar-customs came to dominate Massachusetts and Connecticut. That the separatists had similar customs is purely accidental. Had Plymouth been settled by Prayer-Book Anglicans, the much more numerous Puritans would have been able to exercise cultural dominance just the same, and our Thanksgiving would probably be the same. Had the great migration of 1629-1643 consisted chiefly of Prayer-Book Anglicans, American Thanksgiving in its present form would probably not exist, however many fasts and thanksgivings the Plymouth separatists themselves may have observed.

May 11, 2005
(Gregorian Lunar Almanac 2005.6th Moon.2nd Day)(longish-term link)

The Shoemaker and the Men of '98

Sometime before 1765, shoemaker and Methodist preacher Thomas Olivers (1725-1799) wrote a tune for inclusion in the new edition of John Wesley's Select Hymns with Tunes Annext. A tale of uncertain origin tells that Olivers based the melody on a tune he heard whistled in the street.
 
 





Olivers's tune was then modified, mainly in its ornamentation, by Martin Madan (1726-1790) and published in his Collection of Psalm and Hymn Tunes of 1769 for use with Madan's modified version of the words.
 
 





Madan's adaptation of Olivers's tune seems to have become popular, for around 1780 there is recorded a dance-tune based on it. This was Miss Cattley's Hornpipe, named after the famous singer Anne Catley (1745-1789).
 
 





So on this evidence both Martin Madan and the anonymous composer of Miss Cattley's Hornpipe wrote a new tune based on an older one. If the story about Olivers being based on a musical air overheard in the street is true, then Thomas Olivers did so as well. They were able to do this because, at that time, the public still kept its ancient freedom over musical airs. Anyone could sing, play, and modify any musical air. The copyright law then in existence in Scotland and England was the "Act for the Encouragement of Learning" which had been enacted in the 8th year of Queen Anne. It applied to published books for a maximum term of 28 years, after which the book became publici juris. The London Stationers' Company was disputing this interpretation, claiming that their exclusive printing monopolies were perpetual. This legal dispute would culminate in the cases known as Hinton v. Donaldson, decided by the Scots Court of Session in 1773, and Donaldson v. Becket, decided by the English House of Lords in 1774. Both these tribunals decided that the act of 8 Anne created only a temporary monopoly over a published work, and that after the expiration of the monopoly, the work became publici juris in accordance with the principles of intellectual freedom and free trade. The Stationers' claim that their rights were perpetual under the common law was rejected.

But both the Stationers' 17th-century monopolies, and the monopolies granted by the act of 8 Anne, applied to books as published. The act was not yet understood to create monopolies in short musical airs. A case decided in the Court of King's Bench in 1777, Bach v. Longman, (98 Eng. Rep. 1274) found that a musical composition could be a "writing" for the purposes of the act of 8 Anne. This involved the infringement of two sonatas by John (or Johann) Christian Bach (1735-1782), son of the famous German composer Johann Sebastian Bach (1685-1750). In 1788 a plaintiff recovered for infringement of "a musical air and writing" (Storace v. Longman, referred to in a footnote to Clementi v. Golding, 11 East 243, King's Bench 1809). But before this, short musical airs appear to have been considered publici juris, for neither Olivers's tune, nor Madan's adaptation of it, nor Miss Cattley's Hornpipe was ever accused of infringing any statutory monopoly.

The freedom that these writers of the later 18th century enjoyed has long since been lost to us. The copyright law now applies to even short written works from the moment that they are "fixed", that is, written down. Even a grocery-list is now the subject-matter of copyright. It is now impossible to do as legend says Olivers did, and simply write down a tune that is overheard in the street and publish a variant of it, because any such tune might be under copyright. Before anyone can publish a melody that he has learned, or use it as the basis of a new musical air, he must first try to identify its date and author, in order to determine whether it still is subject to copyright. This creates a chasm that which the creative spark must first leap before it can burn freely.

In theory, of course, the public voluntarily agreed to this abridgment of its rights. In theory the public, through its elected representatives, has enacted the law of copyright in order "to promote the progress of science" (U.S. Constitution 1.8.8). In theory, the public has agreed temporarily to refrain from exercising its ancient rights over new melodies, in exchange for having later even more original melodies in which to exercise these rights than it otherwise would have had.

That is the theory. In practice, the public's representatives have not represented the public so much as private interests. Powerful music-recording, film, and publishing interests prefer to have their exclusive privileges to be as broad and as long-lasting as possible. The duration of copyright has been extended by the 1998 Copyright Term Extension Act (CTEA) to absurd dimensions: 95 years from publication in the case pre-1978 copyrights, which were originally understood to last for no more than 56 years. Copyright monopolies have effectively become ends in themselves rather than means to "promote the progress of science."

Of course, even if the duration of copyright were only 28 years, as it was in the U.S. from 1790 until 1830, the public's freedom over a musical air heard in the street would still be abridged compared to the freedom that legend says Thomas Olivers was able to exercise over the air that he overheard. This is because it is not only the duration of copyright that has been increased over the years. The scope of copyright also has considerably broadened since Thomas Olivers's day. In the U.S., copyright at first only applied to "maps, charts and books" as they were published. The copyright monopoly chiefly forbade competitors for a time from entering the primary market for a copyrighted book. The making and marketing of translations and abridgments remained the public's right. Some of the ancient freedom over individual musical airs continued to be taken for granted, too. William Walker (1809-1875), in the preface to the 1835 edition of The Southern Harmony was able to write "I have composed the parts to a great many good airs, (which I could not find in any publication, nor in manuscript,) and assigned my name as the author."

Over time the scope of copyright was broadened to alienate these freedoms from the public and transfer them to private hands in the form of copyright monopolies. Indeed, the scope of copyright has been so enlarged over the years that it now applies even to architectural works themselves, as well as to their blueprints. In the Second Judicial Circuit, the scope of copyright has been enlarged still more in practice by the "device" and "circumvention" provisions of the 1998 Digital Millennium Copyright Act (DMCA).

It is highly unlikely that this broadening of the copyright privileges will ever be completely reversed. One might raise serious objections against copyright in architectural works, and against the "device" and "circumvention" provisions of the DMCA. But it is more reasonably arguable that, in order "to promote the progress of science", a monopoly of fairly broad scope, including some rights of public performance, the right of translation, the right of abridgment, and some other rights of derivation, must be reserved to the monopolist, so that the copyright will have a fighting chance of generating a reasonable return to the author. Under any copyright law that is likely to exist, then, the creative spark will still be required to leap a chasm before it can light a creative fire in a melody that has been overheard in the street. Under any copyright law that is likely to exist now or in the near future, a modern-day Thomas Olivers would need to check the identity of a musical air that he overheard, and, if the air were found to be still under copyright, he would need to wait a little while before making his own variant widely known.

But "a little while" should not be four or five generations. A term of ninety-five years is hardly a "limited time" that can "promote the progress of science" better than a seventy-five year term can, by enough of a margin to justify making our hypothetical modern-day Thomas Olivers wait twenty more years.

It was noted earlier that Congress extended the term of copyright because it was influenced by powerful special interests. This is so, but it is not the whole story. An indifferent public, unaware of the extent of its own rights of free trade and free expression, also contributed by its indifference to the enactment of the new law. If we are to have any chance of reversing the copyright disasters of '98, we will need to learn to cherish and defend what remains to us of our common creative and commercial rights. We must demand that all remember that the freedom that Martin Madan, the anonymous composer of Miss Cattley's Hornpipe, and, according to legend, Thomas Olivers enjoyed--the freedom to take a musical air and publish a newer one made from it--is the public's right. We must demand that, even if for reasons of public policy we must delay our own enjoyment of that same freedom in new melodies, still the monopolists to whom we cede this margin of our freedom must never forget that their copyright privileges have been carved from our rights. We must demand that the rightsholders remember that their works must in the end become publici juris so that anyone can market them and work them into new shapes. As a matter of civic virtue, as well as self-preservation, the public should demand of itself that it remember these things too. We should remember our ancient rights of free expression and free trade. We should remember that the monopoly privileges enjoyed by copyright holders were built from our own rights. We should remember that all works of the human mind belong in the end to all mankind. We should remember these things, and make sure our representatives in government remember them also.


These essays copyright (c) 2005 by Timothy R. Phillips.   They may be reprinted freely as long as the text is unchanged and this notice is included.



 
This picture, from an English medieval illuminated manuscript, was reproduced in Alexander Speltz's Styles of Ornament, Tranlated from the Second German Edition by David O'Conor, E. Weyhe, New York, 1910, Plate 55, #19, whence it is reproduced here.  This image is in the public domain in the U.S.A. and should be copied and reproduced with gleeful abandon.