of Science and the Useful Arts” and modeled on the Statute of Anne, the Copyright Act granted authors or their transferees protection though remedies of forfeiture and monetary penalties against infringing “print[ing], reprint[ing], publish[ing], and vend[ing]” of books, maps, and charts for 14 years and allowed renewal for a second 14-year term.
Like other legislation of this era, Congress left many of the details to be fleshed out by the courts. As a result, many essential elements of copyright protection, such as infringement standards and defenses, developed through judicial decisions. Some of these doctrines were later codified, but many continue to exist solely in case law. Private copyright-related institutions and transactional practices and technology for creating, copying, and distributing works are also important contributions to the evolution of the copyright policy environment as we describe below.
Advances in the technologies for creating and distributing works of authorship have played a critical role in shaping copyright law starting in the nineteenth century and continuing to today. As technology for making and reproducing works of authorship has expanded and the arts have flourished, Congress has repeatedly amended the Copyright Act to extend to new media and means of exploitation.
The domain of copyrighted works expanded over the course of the nineteenth century due to technological advances, changes in the creative market, and resulting changes in the scope of protectable subject matter. The publishing industry experienced explosive growth, with innovations in technologies for embodying artistic expression, such as the invention of photography. Whole new categories of works were created with Congress and the courts expanded protection to cover them. As the Supreme Court would later observe, “[a]s our technology has expanded the means available for creative activity and has provided economical means for reproducing manifestations of such activity, new areas of federal protection have been initiated” Goldstein v. California, 412 U.S. 546, 562 n.17 (1973).
Over the course of the nineteenth century, the nature of the exclusive rights granted by U.S. copyright law changed from the initial relatively narrow rights to print, reprint, publish, and vend. Some of this change occurred in the courts whose decisions were later codified in subsequent statutory amendments. In 1856, copyright holders’ exclusive rights were expanded by statute to cover the right to publicly perform dramatic works. In 1870, translation and dramatic adaptation were added to the Copyright Act. In 1897, a public performance right was added for dramatic musical compositions. The process of judicial development and legislative codification also included limitations to the scope of copyright.