The (First) Register of Copyrights and the Drafting of the 1909 Copyright Act

This is something I’d like to do as a law-review style article or book chapter at some point.  But that could take years and cost millions of lives.  In the interim, here are the highlights.

When Thorvald Solberg was named the first Register of Copyrights in 1897, he faced daunting problems, and fixing them would consume his first years in that position.  The Library of Congress – including the copyright material- was moving to its new building, now the Jefferson Building, immortalized in a semi-famous photograph.

Copyright deposits in the first Library of Congress building in 1897, waiting to be sorted, counted, and classified. (caption and photo from Library of Congress)

Following that came the task of modernizing the business of copyright registration – although Ainsworth Spofford (Librarian of Congress 1865-1897) had effected the centralization of copyright registration, in contrast to the earlier practice of registering copyright in the local federal court, the actual record-keeping done by Spofford was no better than what was done by the District Courts, with a general ledger of copyright registrations being kept, containing a few fields of basic information and then individually signed by the Librarian.1  At the beginning of the 20th Century Solberg introduced the “XXC” classification system and system of application forms, which would be used in modified fashion until the effective date of the 1976 Act.  In 1903 the Copyright Office improved the Catalog of Copyright Entries as it evolved from an obscure circular into a proper catalog, including statistical information for the first time.

Solberg’s Observations on copyright record-keeping, original in Thorvald Solberg Papers at the Library of Congress

Also at the beginning of his tenure, Solberg effectively engineered the appointment of Herbert Putnam to be librarian, and would serve alongside him from 1899-1930 (when Solberg retired).  With the Copyright Office reaching a certain operational stability, attention then turned to the question of reforming the copyright laws.  It’s fairly well-known that the original 1790 Copyright Act was largely an Americanized version of the 1710 Statute of Anne.  The 1831 Act was a major advance, expanding the scope of copyright (music was not technically protected by the 1790 Act, for instance, although in practice music was registered as a “book” or print”), and making many other reforms.  For most of the nineteenth century the main question of American copyright law was whether to extend copyright to foreigners, a measure that did not become law until 1891.  In the interim there had been an omnibus revision to all intellectual property laws in 1870 – including a revised patent code and the first instance of federal trademark law – but aside from the change of venue to the Library of Congress, the 1870 Act was not a major shift from the 1831 Act.  By the early 20th century motion pictures and sound recordings were already being widely consumed, and a heavily modified copyright law from an entirely different era was clearly inadequate.  Given that international copyright had withstood a number of challenges in its first decade and now felt secure, it was time for a 20th century copyright law.

Beginning in his 1901 Annual Report, Solberg would annually advocate for a new copyright law.  The ball began rolling in the Senate Committee on Patents, which requested that a commission be formed to study the copyright laws in January of 1905, after which the Librarian delegated to Solberg to plan a series of conferences to meet with copyright industry representatives in the Spring of 1905 to the Spring of 1906.  Transcripts of these conferences were created and were much later compiled as part of the printed Legislative History of the 1909 Copyright Act, currently available on Heinonline.  By this time, Solberg was also deep into a period of study of the copyright laws that would leave him the undisputed master of them.  His first major work was a study of every copyright enactment in the United States up to 1900, published that same year.  In February of 1905 he followed that with his study Copyright in Congress: 1789-1904, which chronicles every action regarding copyright in Congress, including failed bills and long-forgotten petitions and memorials.  By the time the revision process began, Solberg had quite literally read every proposed copyright law in this Country’s history.

Following the Spring 1905 conference, Solberg and his small staff at the Copyright Office began the project of drafting a copyright bill out of the suggestions and comments made.  By the Spring of 1906 a bill was ready, and was published along with comparisons to the current statute.  The bill was introduced in May of 1906, and underwent extensive revision – with Solberg in consultation every step of the way.2  The Librarian was also involved in the discussion as the bill moved forward, but the Copyright Office had become the experts on copyright law.

Thorvald Solberg’s letter to the Librarian of Congress requesting leave so he could draft what would become the 1909 Copyright Act

As mentioned, Solberg would stay in office until 1930, serving alongside the Librarian he had helped appoint all along.  Even after his retirement the Copyright Office maintained its position as the governmental experts on copyright, and further existed as a largely independent agency ingrown into the Library of Congress, left alone by Librarians who had other priorities – and who also were not prepared to bring the requisite subject-matter expertise in copyright to bear.

 

 

  1. In addition, Spofford had also been alarmingly lax in his handling of funds deposited by repeat copyright registrants
  2. Many bills were introduced during this period, but they were mostly revisions of proposed revisions of the Solberg bill

How We Got a Register of Copyrights

One question that seems to pop up repeatedly in comment threads on the recent de facto removal of the Register of Copyrights is to ask how why the position is called the Register of Copyrights, and why the Copyright Office remained in the Library.  In this post I’ll offer some thoughts on the question, and give some history of how the US Copyright Office remained part of the Library of Congress in the waning days of the nineteenth century.

As I’ve written, Librarian of Congress Ainsworth Spofford succesfully pushed in make national copyright registration part of the portfolio of the Library of Congress in 1870.  His main interest in securing copyright registration for the library was to get the deposits of all works registered for copyright, and the centralization of copyright in the library furthered that goal.  Within two years after copyright was centralized in the Library of Congress, the Librarian felt he was being buried under an avalanche of deposits of nonliterary/nonartistic materials – mostly product labels and advertising prints – and succesfully convinced Congress to place copyright registration for such works in the Patent Office, where it remained until 1940.1

In December of 1895, a bill was introduced in the Senate providing for a Register of Copyrights, appointed by the President and Confirmed by the Senate.2  The record does not completely show why the term Register of Copyrights was used – the bills were presumably developed in consultation with Ainsworth Spofford, by then in his 31st year as Librarian of Congress.  In hearings held in November and December of 1896, Spofford indicated that he was both the Librarian of Congress and Register of Copyrights, and that the books used to record copyrights were referred to a registers.  However, Spofford recommended the “copyright business” be seperated from the Library, and be put under the control of a “Registrar of Copyrights,” but should be housed in the new Library building as a seperate agency.3

In the same Congress, a freshman (and ultimately one-term) Congressman from rural Missouri, William Treloar, introduced his own  comprehensive bill to reform copyright (PDF, 4 MB – bill text and hearing).4  Treloar was a composer and music publisher, whose advertisements trumpeted his compositions selling a million copies.5  I’ve written about the Treloar Bill in the past, in the context of the creation of performance rights for music, but what’s of interest here are the provisions for the administration of copyright in the United States.  In particular, the Treloar Bill provided for a “Commissioner of Copyrights,” appointed by the President with the advice and consent of the Senate, with the powers one would expect of an executive appointment.  At a hearing on the bill these provisions were popular with copyright stakeholders, but the Treloar Bill foundered on its provisions that would have extended the manufacturing clause.

In the end, despite the popularity of the idea of separating the copyright function from the Library of Congress, Congress was uneasy with the Constitutional implications of allowing the President to appoint, with Senate consent, a legislative officer under the supervision of the Joint Committee on the Library, as the copyright statutes stipulated.   The confusion as to whether a Register of Copyrights even could be an executive appointment lead Congress to remove any mentions of a Register of Copyrights in the omnibus funding bill that would include funds for the relocation of the Library to its new building.  However, at the last minute and with minimal debate, the Senate provided for a Register of Copyrights to be appointed by the Librarian.  Without any real further comment from Congress, that has been the state of affairs ever since.

As for the name of the position “Register of Copyrights,” a keen reader may notice I don’t have a firm answer.  However, looking at the debates and hearings at the time, the title “Register” seems to have been the functional term for the position which Ainsworth Spofford used to identify the function of being in charge of copyrights, in contrast to the title of “Registrar,” which Spofford felt he held de facto, but not officially.

  1. The 1874 Print and Labels Act and its relationship to the major cases of copyright law, including Higgins v. Keuffel and Bleistein v. Donaldson Lithographic, is the focus of my article Reimagining Bleistein.
  2. The detailed legislative history this bill, with all citations, is included at Footnote 166 of Chapter 1 of the online version of William Patry’s Copyright Law and Practice.
  3. Hearing appended to 54 S. Rep. 1573 at Pg. 133.  The full text of Spofford’s remarks was:
    Representative QUIGG. You made a report to one or the other branch of Congress advising that the copyright business be separated from the business of the library?
    Mr. SPOFFORD. Yes; connected with the Library of Congress, but in charge ot a separate responsible and competent officer, who might be called the registrar of copyrights.
    Representative QUIGG. Did you recommend that there be any connection between the copyright business and the Library as such?
    Mr. SPOFFORD. I entered into no detailed statement in that direction, but I would like to say that it would be eminently proper that the Registrar of Copyrights, when appointed. should hand over to the Librarian all publications received by him that have gone through the necessary process, so as to form part of the Library collections.
  4. The version of the bill in the hearing print is a bit different from the original published version of the bill.
  5. It’s difficult to know if this is accurate, although some skepticism may be warranted.  As an example of Treloar’s art, this is his composition Cuba Must be Free (PDF, 4MB).

The Librarian of Congress and the Register of Copyrights

I was surprised this past Friday to learn that Maria Pallante, who had served as Register of Copyrights (the head of the US Copyright Office) since 2011, had been removed from this position by Carla Hayden, who recently became the Librarian of Congress.  In theory the Register of Copyrights is subordinate to the Librarian of Congress, but no Register has been removed by a Librarian in the past 120 years, and in fact the relationship between the two offices is much more complicated than this hierarchy would suggest.  Understanding why this is the case requires a bit of history regarding the interactions of the Library and the Copyright Office.1

After eighty years of copyright registration being handled by the Federal District Court for the region of the state the author or publisher lived in, copyright was centralized in the Library of Congress in July of 1870.2  For 27 years, Librarian of Congress Ainsworth Spofford was in charge of copyright registration in the United States.  However, perhaps inevitably, Spofford’s administration of copyright was somewhat disorganized, as his main interest in copyright was ensuring that the Library of Congress received deposits of all books and other library materials registered for copyright.3  It was obvious that a head of copyright for the United States was needed, and in 1897 the position of Register of Copyrights was created by Congressional Act.  Spofford had just stepped down from the position of Librarian of Congress after 32 years, and the Library moved into its first dedicated building, now the Jefferson Building, that same year.  With the library entering the modern era Thorvald Solberg was appointed the first Register of Copyrights.

However, in 1898 Spofford’s succesor died in his second year in office, and the hunt for a new librarian began.  Solberg feared that the next Librarian would be a political appointee, and took it upon himself to engineer the appointment of a Librarian who would be nonpartisan.  This story has been rarely told, but Solberg left a handwritten account entitled “The Librarian of Congress and the Register of Copyrights” (PDF, 15 MB) in his personal papers, now held in the Manuscript Division of the Library of Congress.4  The full account is worth reading, but briefly Solberg convinced the President to delay making an appointment and convened a conference of librarians from around the country.5  This conference put forward the name of Herbert Putnam as the best choice for the next Librarian of Congress, and Putnam duly became the Librarian of Congress in 1899.

Solberg and Putnam would continue in their respective positions for decades, until Solberg retired at the age of 78 in 1930.6  Putnam would serve another decade beyond that as Librarian of Congress.  It is impossible to ask them anymore, but it is difficult to imagine that Solberg could have been Putnam’s subordinate in any meaningful sense once Solberg had engineered Putnam’s appointment.  Over time, the Copyright Office developed into an independent agency inside the Library of Congress – oral histories done by the Library of Congress confirm that by the 1970s employees of the Copyright Office generally considered the Office’s connection to the Library tenuous at most.

The Register of Copyrights engineered the appointment of a new Librarian of Congress 117 years ago as of this post, after which time the Copyright Office has been largely left to its own devices.  It will be interesting to see what the future holds.

  1. A bit of context to this post is that I only recently completed a (enjoyable and productive) term as the 2015-2016 Abraham L. Kaminstein Scholar in Residence at the US Copyright Office, reporting to then-Register Pallante.  I’m no longer at the Copyright Office, and to the extent any opinions are offered, they’re offered in my personal capacity anyway.
  2. This is a simplified version of the story, William Patry’s Copyright Law and Practice gives more detail for those interested
  3. And nothing but books, music, and other materials of interest to libraries.  In fact, Spofford pushed for and received legislation moving copyright registration for product labels and advertising prints into the Patent Office, a move only repealed in 1940.
  4. Thank you to Will Slauter for pointing this document out to me
  5. Solberg remembers it as being President (Theodore) Roosevelt, but in fact the President was still McKinley.
  6. He would live until 1947, remaining active in copyright issues in his retirement