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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

4. Early American Printing Privileges. The Ambivalent Origins of Authors’Copyright in America

Oren Bracha

Texte intégral

  • 1 This paper is based upon material developed for the AHRC-funded project Primary Sources.

1Note portant sur l’auteur1

2Latent in existing accounts of early American copyright is a particular version of American exceptionalism. These accounts tend to ignore the colonial period or minimise its significance to the vanishing point. It is well established that in England and the Continent copyright had a rich and complex history that extends back to the early sixteenth century. By contrast, the reader of standard American copyright history is likely to be left under the impression that, with the exception of an early isolated incident in Massachusetts, nothing interesting happened in that region until the late eighteenth century. The flipside of the coin is an overemphasis on the meteoric ascendancy of author-based copyright in the United States in the period immediately following independence. While complaints about the ’incomplete’ nature of late eighteenth century American copyright abound, the current narrative depicts the appearance of modern authors’ copyright in the United States almost as Athena springing out of the head of Zeus fully matured and arrayed for battle.

3In this essay I wish to deny neither the differences between the European and American contexts for the development of the precursors of modern copyright nor the importance of the late eighteenth century developments in America. Instead, by providing a somewhat thicker description of American copyright’s antecedents, my aim is to change the emphasis of the standard narrative in two ways. First, the sharp dichotomy between the early European and American experiences is weakened. In America as in Europe printing privileges developed as an organic part of the framework for governmental regulation of the printing press. While important differences in social conditions and in the patterns of governmental activity were reflected in the frequency and nature of the American printing privilege, there were still significant lines of resemblance. The American colonial privilege was a provincial and somewhat crude version of its European cousin.

  • 2 O. Bracha, ’The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early Am (...)

4Second, the emphasis of the account shifts to continuity and gradual change rather than ruptures. The late eighteenth century transition from a publisher’s commercial privilege to an author’s right was a gradual process. During the transitory stage the concept of authorship often played an ambivalent and problematic role in justifying and understanding copyright. I have argued elsewhere that an ideology of individual authorship played a complex, often paradoxical role, in nineteenth century copyright.2 Authorship never had a real golden age in American copyright. The development was from hesitant use of authorship concepts together with notions and institutions still coloured by the printer’s privilege to a copyright system that full-heartedly adopted authorship as its official justification while its actual institutions were shaped by the quite different demands of industrial, mass communication, market society. This essay tells the first half of this story.

The Regulation of the Printing Press in the North American British Colonies

  • 3 In general see: L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt Univers (...)

5The antecedents of what would become copyright emerged in Continental Europe and England as a governmental response to the appearance of the printing press.3 The press was seen both as an important public resource and as posing a significant danger to established political and religious powers. Governmental reaction to it was shaped by three related purposes: suppression and censorship of content; maintaining an ordered and well regulated book trade; and public encouragement of publication projects deemed worthy or important. In the American colonies too, copyright emerged as part of a governmental response to the threat and promise of the printing press. Thus colonial printing privileges should be understood in the context of the colonial framework for regulating the press.

  • 4 G.P. Winship, The Cambridge Press, 1638-1692 (Portland: Southworth-Anthoensen Press, 1945), p. 9.
  • 5 L.G. Starkey, ’The Benefactors of the Cambridge Press: A Reconsideration’, Studies in Bibliography (...)
  • 6 This would never happen. Whether due to its remoteness from the metropolis or the decline of the p (...)

6The first printing press in the North American British colonies arrived in Cambridge, Massachusetts at the end of 1638. The moving force behind the arrival of the press was the Reverend Jose Glover, a Puritan minister and the son of a wealthy shipping merchant family. Intensification of religious oppression in the late 1630s persuaded Glover to move. In connection to his new world business plans Glover took with him several passengers, equipment and materials, including a printing press whose type was probably made in Amsterdam, paper, and other supplies required for printing.4 Glover’s exact motivation in bringing the press to Massachusetts is unknown. However, his connections with the colony’s ruling elite, his possible involvement in the founding of Harvard College and the financial help in setting up the press by ’Some Gentleman of Amsterdam’5 – most likely Puritan or Puritan sympathisers – suggest that any commercial impulse was supplanted by other reasons. The Puritan leaders of Massachusetts Bay with their intellectual background must have perceived the potential of the press to their scholarly endeavours, to the civil authority of their government and to their religious mission. It is also possible that, in light of increasing suppression of Puritan literature during the 1630s in England and even in the Netherlands, there existed an intention to create a new Puritan publication centre in the colonies.6

  • 7 Ibid., p. 7; Winship, pp. 11-15; G.E. Littlefield, The Early Massachusetts Press, 1638-1711 (New Y (...)
  • 8 Tebbel, p. 10.

7Glover did not survive the trip and some ambiguity shrouds the question of who exactly took over the operation of the press upon its arrival.7 Harvard had a stake in the press and played an active role in its management, although the exact nature of its interest remains unclear. The fact that Reverend Henry Dunster the president of Harvard and the person who came to manage the press in its early years married Glover’s widow in 1641 makes it even harder to discern the exact division of ownership and control.8 Whatever the exact formal pattern of ownership, it is clear that both Harvard and the colony’s authorities took an active role in the management and control of the press and treated it as a semi-public resource in the service of the colony.

  • 9 Ibid., p. 4.
  • 10 Winship, pp. 18-20; R.F. Roden, The Cambridge Press, 1638-1692 (New York: Dodd, Mead, and Company, (...)
  • 11 Tebbel, p. 17.

8The treatment of the press in Massachusetts Bay was influenced by the peculiar intellectual, cultural and political circumstances of the colony. However, the two main aspects of this treatment would be in play in all the other British American colonies where the printing press arrived throughout the following century. The first aspect was public patronage. The Massachusetts authorities perceived the importance of the press to both the authority of civil government and the religious and intellectual mission of the colony’s elite. In a community with an unusually high percentage of university graduates,9 as well as one that was preoccupied with maintaining religious and civil cohesion, an awareness of the importance of the press was only natural. The first known publication of the Cambridge press expressed both the religious and civic aspects of its public importance. In the Freeman’s Oath every freeman of the colony pledged his allegiance to both religious and civil authority.10 The Massachusetts authorities took a particular interest in sustaining the press and its operation. The General Court often made orders and provided support in regard to the operation of the press. Thus, for example, when equipment for keeping the press working or another printer was needed the Court was petitioned and it took the required measures in order to provide both.11

  • 12 On the English licensing system see Patterson, pp. 114-42.
  • 13 Records of the Governor and Company of the Massachusetts Bay in New England, 1661-1674, ed. by N.B (...)
  • 14 Ibid., p. 73.
  • 15 Ibid., p. 141.

9The second aspect of the treatment of the press was supervision and suppression. Alongside its public utility, the press could also be a dangerous catalyst of civil and religious dissent and unrest. To a ruling elite steeped in the English tradition of censorship and licensing this meant a need for tight regulation of the product of the press. The Massachusetts licensing legislation was the most comprehensive in the colonies as well as the closest to being an actual licensing ’system’ – a miniature, crude version of the English licensing scheme.12 In 1662 the General Court, in reaction to ’irregularities & abuse to the authority of this country by the printing presse’, ordered that no copy should be printed unless licensed by two appointed licensers.13 The order was repealed in 1663 when it was declared that the ’presse be at liberty’.14 In 1664, however a comprehensive permanent licensing system was established. The new law forbade the setting up of any press except the one in Cambridge and subjected all publications to licensing by a special board appointed by the Court, all under threat of forfeiture of equipment and of the liberty to exercise the trade of printing.15

10These two aspects – patronage and regulation – were complementary. They expressed the perception of the press as an important public resource whose operation had to be publicly managed and regulated in order to assure its service to the commonwealth.

  • 16 Virginia had a short episode with the press in 1683 which ended with a complete ban and the forced (...)

11When in the following decades printing gradually arrived in other colonies,16 authorities there exhibited various combinations of patronage and suppression in their treatment of the press. Colonial governmental approach to the press oscillated between viewing it as a dangerous instrument of religious heresy and political unrest, sometimes resulting in a complete ban, and the acknowledgment of such dangers accompanied by an appreciation of the value of the press in promoting governmental purposes or the public good. The exact mix varied. On one extreme one finds William Berkeley, the Governor of Virginia, who in 1671 declared:

  • 17 Quoted in Tebbel, p. 1.

But I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both.17

  • 18 L.C. Wroth, A History of Printing in Colonial Maryland, 1686-1776 (Baltimore: Typothetae of Baltim (...)
  • 19 Calendar of State Papers, Colonial Series, American and West Indies, 1681-1685, ed. by J.W. Fortes (...)

12Virginia followed this line. When in 1683 William Nuthead set up a press in Jamestown and printed various laws passed by the assembly, he was brought before the governor and the council that ordered him and his patron John Buckner to post bond and refrain from any other printing until instruction arrived from England.18 Several months later such instruction arrived along with a new governor. It ordered the governor ’[t]o forbid the use of any printing press upon any occasion whatever’.19 Although the order was modified in 1690 to allow printing under special permission from the governor, the ban meant the end of printing in Virginia until 1730 when William Parks set up another press in Williamsburg.

13Even where printing was not completely banned it was heavily restricted. The setting up and the operation of a press required governmental permission, which usually was not easily given. There was also prior licensing of the content of publication. In 1685 Thomas Dongan the governor of New York received instructions from England in terms that were repeated in instructions to other colonies:

  • 20 Documents Relative to the Colonial History of the State of New York, ed. by John R. Brodhead et al (...)

14And for as much a great inconvenience may arise by the liberty of printing within our province of New York, you are to provide by all necessary orders that noe person keep any press for printing, nor that any book, pamphlet or other matters whatsoever bee printed without your special leave & license first obtained.20

  • 21 See Lehmann-Haupt, pp. 43-5; Thomas, pp. 16, 235-6.
  • 22 See Lehmann-Haupt, p. 45.
  • 23 See Minutes of the Provincial Council of Pennsylvania, ed. by Samuel Hazard, 10 vols. (Philadelphi (...)
  • 24 L.W. Levy, Emergence of A Free Press (New York: Oxford University Press, 1985), p. 32.

15The impulse for restriction of the press was as much internal to colonial government as it was attributable to demands from England. The licensing and prior restraint limitations survived in the colonies well into the eighteenth century,21 long after they declined in England with the lapse of the 1662 Licensing Act in 1695. The absoluteness of the licensing regimes in the colonies, however, was more a matter of theory than practice. Governmental intervention tended to be sporadic and inconsistent.22 On the other hand, when the authorities decided to act their actions could be quite harsh. Persons who published unlicensed materials could find themselves fined, jailed or even deprived of their equipment, as William Bradford learned in 1692. Bradford ran into trouble with the Pennsylvania assembly for printing an unlicensed pamphlet by one of the factions in the religious-political skirmishes in the colony. He was arrested and his equipment was seized. It was restored to him only when the newly appointed governor of New York and Pennsylvania Benjamin Fletcher had intervened on his behalf.23 Prior restraint of the press existed in some colonies even in the second half of the eighteenth century, although the general trend by that time was a shift toward post-publication sanctions.24

  • 25 See O. Bracha, Owning Ideas: A History of Anglo American Intellectual Property (2005) (unpublished (...)
  • 26 In 1641 the General Court of Massachusetts granted Stephen Day, the first printer of the colony, t (...)

16Alongside suppression, the colonies that did not ban the press supplied encouragement and support. There were often titles and offices such as ’public printer to the colony’ which carried with them government patronage in the form of some compensation, commitment to purchase printed works, or at least the exclusive right to print some governmental documents, usually the laws of the colony. In general, government-related publications supplied the bulk of the work of many of the printers and constituted an important form of patronage.25 Sometimes there were even land grants or convenient leases offered to printers.26 In short, throughout the colonial period, following the Massachusetts example, the press was seen as an important but dangerous public resource to be encouraged and used by the government, but also to be restricted and regulated.

Colonial Printing Privileges

17The first grant of exclusive printing privileges in America took place within this general framework of colonial government’s support and regulation of the press. In 1672 the bookseller John Usher made an interesting proposition to the Massachusetts colony. He offered to publish at his own expense the laws of the colony, an undertaking hitherto executed by the public authorities. John Usher’s grant, which is sometimes referred to as the first American copyright, was, roughly, the equivalent of the English printing patent or continental privilege grant. It appears that the origin of the grant was a specific concern by Usher in regard to his printer, Samuel Green. Green was one of the two printers operating at the time in Massachusetts. Usher’s distrust of his printer is evident in the phrasing of the General Court’s order in response to his first petition in the matter:

  • 27 Shurtleff, IV, p. 527.

In ansr to the petition of John Vsher, the Court judgeth it meete to order, & be it by this Court ordered & enacted, that no printer shall print any more copies then are agreed & pajd for by the ouuner of the sajd coppie or coppies, nor shall he nor any other reprint or make sale of any of the same, wthout the sajd ouners consent, vpon the forfeiture an poenalty of treble the whole charges of printing, & paper, &c, of the whole quantity payd for by the ouner of the coppie, to the sajd ouner or his assignees.27

18Apparently, Usher was concerned that Green would secretly make and sell extra copies of the publication, thereby undermining his market. The solution was a legislative prohibition of such an action and an exclusive vending and printing grant. A year later, in response to another petition, the General Court issued a slightly different order:

  • 28 Ibid., p. 559.

Mr John Vsher hauing binn at the sole chardge of the impression of the the booke of lawes [...] the Court judgeth it meete to order, that for at least seven yeares, vunless he shall haue sold them all before that tjme, there shallbe no other or further impression made by any person thereof in this jurisdiction.28

19This time the privilege of exclusivity was explicitly limited to a term of seven years. It was also restricted to the specific stock that Usher had in hand and did not cover any future reprints.

  • 29 In general see: J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in B (...)
  • 30 Shurtleff, IV, p. 331.
  • 31 Ibid., II, p. 244.

20Usher’s grant was similar to English printing patents that were granted by the Crown since the early sixteenth century.29 It had nothing to do with authorship. The grant conferred a limited-duration economic privilege of exclusivity on a publisher in order to reduce his risk and encourage a specific publication. Like the printing patent it was an ad hoc discretionary grant and not part of a general legal regime. It is unclear whether Usher or the General Court modelled the privilege after the printing patent or if they were even aware of such grants in England and the continent. Be that as it may, the grant was part of a local pattern of governmental activity. Usher’s grant followed the form of other privileges dispensed by colonial authorities in a variety of economic and social fields. It was no different from other Massachusetts privilege grants in the fields of manufactures or public works, such as Samuel Winslow’s 1641 exclusive grant for making salt,30 or the 1642 exclusive grant to John Glover for operating a ferry.31 Usher’s printing privilege was just another governmental encouragement to an enterprise deemed beneficial to the public good that took the common form of a legislative grant of limited-time exclusivity.

  • 32 See: Bugbee, p. 106; Lehmann-Haupt, p. 99; Tebbel, p. 46.

21Some historians argue that the 1673 Massachusetts grant to John Usher was the only one known during the colonial period.32 This is inaccurate. While printing privilege grants were sporadic, different variants of them were sometimes used. These grants remained isolated and case-specific occurrences. No general copyright regime, either statutory or under the common law, appeared during the colonial period. The 1710 Statute of Anne that created a general statutory copyright regime in Britain did not apply to the colonies.

  • 33 In 1775, a period that already saw considerable growth of the trade, there were fifty printing hou (...)
  • 34 Tebbel, p. 42; Lehmann-Haupt, p. 99.
  • 35 Tebbel, p. 46. Lehmann-Haupt described it as ’a sense of mutual obligation’ and as ’common decency (...)
  • 36 Ibid., p. 101.

22The reasons for this difference between metropolis and periphery were rooted in the economic, social and cultural circumstances of the colonies. In Europe general copyright regimes developed out of cooperation between governments and the publishers’ guilds rooted in an alignment of interests. The colonies had no equivalent of the English Stationers’ Company. A small and unorganised book trade could not create trade-wide regulations, enforce them, and lobby government for sustained backup and support. From the point of view of colonial government a major incentive that led European governments to bestow powers on the book trade guilds was lacking in the colonies. Colonial authorities had little need for an intermediary in enforcing their censorship and licensing policies. In a colony where there were just a handful of printers and presses (often just one),33 even if the number of potential writers and sometimes booksellers was larger, there were easily traceable targets that government could regulate effectively without any need to resort to intermediaries. Similar differences applied from the point of view of printers and booksellers. In the context of a small book trade consisting of a limited number of printers and booksellers there were probably effective alternatives to exclusive legal publishing rights for reducing the publisher’s risk. Although knowledge of the exact trade practices during this period is incomplete, book historians mention two such alternative risk-reducing devices. The first was private contractual agreements among booksellers not to print each other’s copies.34 The other was an informal social norm within the trade against such behaviour, supported by what one historian has called ’an enlightened self interest’.35 Both contractual agreements and social norms were likely to be particularly effective in the context of a small close-knit professional community with a limited number of actors. Moreover, in many cases the risk of competition was limited to the local market. In addition to the physical and economic barriers to an effective intercolony market there were cultural barriers between the colonies. Much of what was printed in one colony – governmental documents, religious materials, and local histories – was of little relevance to the audience in other colonies. Even in cases of materials that were of general interest there were relatively effective risk-reduction mechanisms such as the offer on consignment by one bookseller or printer of materials published by another.36

23This background explains why no parallel of the English and European guild or statutory copyright developed in the North American colonies. In the absence of guild-government cooperation no standardised entitlements akin to the Stationers’ copyright could appear. In the absence of such preexisting institutional background, sustained private demand for protection, and lobbying by a powerful organised profession no statutory scheme developed.

  • 37 See G.W. Paschal, A History of Printing in North Carolina (Raleigh: Edwards & Broughton, 1946), pp (...)
  • 38 An Act for appointing Commissioners to Revise and Print the Laws of this Province, and for grantin (...)
  • 39 Ibid., §IV.
  • 40 Ibid., §§IV-V.

24The same reasons account for the sporadic nature of resort to formal legislative privileges. Nevertheless, the use of legislative privileges was not limited to one singular incident in Massachusetts. Such privileges were granted occasionally as part of the general pattern of colonial regulation and encouragement of the press. For instance, in 1747 the North Carolina legislature, under the active encouragement of Governor Gabriel Johnston, decided to rectify a ’shameful condition’ and publish a revised compilation of the colony’s laws. In order to accomplish that goal James Davis from Virginia was persuaded to come to North Carolina and was appointed printer for the colony.37 The legislature also enacted a statute that appointed four ’Commissioners, to Revise and Print the several Acts of Assembly in Force in this Province’.38 In addition to a payment to the ’Commissioners’ for complying and printing the laws it was ordered that they shall have ’the Benefit and Advantage of the sole Printing and Vending the Books of the said Laws, for and during the Space or Term of Five Years’.39 The Act also provided for punishment to any person vending or importing the Law Books without a license from the Commissioners, ’their Heirs or Assigns’ during the term of protection, and set a maximum price of fifteen Shillings for their sale.40 In short, the North Carolina act followed the same scheme as John Usher’s Massachusetts privilege decades earlier. It made the ’Commissioners’ the publishers of the Law Book and granted them exclusive publishing and sale rights for five years.

  • 41 Wroth, p. 18.
  • 42 Ibid., p. 21.
  • 43 Ibid.

25Other colonies, instead of explicitly bestowing exclusive publishing rights, used other arrangements that accomplished the same end. In 1696 William Bladen petitioned the Maryland authorities and asked for leave to bring at his own expense a press that ’would be of great advantage to this province for printing the Laws made every session &c’.41 The request was approved. In 1700 he further petitioned the council for ’encouragement’ which resulted in a recommendation affirmed by the house that all writs, ’Bayle bonds, Letters Testamentry, Letters of Adminstration, Citacons summonses & ca’42 regularly used should be printed. Prices were set as ’one penny or one li Tobo per peece’ for some of the documents and ’Two pence or two pounds of tobbo’ for others.43 In the same year Bladen proposed to publish a compilation of Maryland laws. This was accepted by the legislature which provided that:

  • 44 Ibid., p. 23.

Mr. Bladen according to his proposall have liberty to printe the body of the Law of this province if so his Excy shall seem meet And it is likewise unanimously resolved by this house that upon Mr. Bladen’s of one Printed body of the said Laws to each respective County Court within this province for his encouragement Shall have allowed him Two Thousand pounds of tobo in each respective county as aforesaid.44

  • 45 See ibid., pp. 28-9, 33-4, 49-50.
  • 46 An Act to revise, digest & Print the Laws of this Colony [1750], 3 N.Y. Laws 832-5; An Act to revi (...)

26The net result of this arrangement was implied exclusivity and explicit subsidy to Bladen’s project. Against a background rule that prohibited printing without license, the liberty to print the laws of the colony promised de facto exclusivity. Moreover, Bladen received a commitment for the purchase of a substantial number of copies for a predetermined price. Similar arrangements were used in later occurrences in Maryland45 and in New York.46

27Future research in the field is likely to uncover other instances of printing and publishing privileges of various kinds awarded by colonial legislatures. Even the current incomplete knowledge of this period, however, yields a rather clear picture of the colonial precursors of copyright in America. Various colonies occasionally granted on a case-specific basis different printing privileges. These privileges were granted as discretionary economic encouragements to printers or publishers and took various forms, including exclusive printing and sale rights. Like English printing patents and most European privilege grants, colonial printing grants were publishers’ economic privileges and had nothing to do with authorship. They were conferred on booksellers or printers, rather than authors. The typical texts involved – most commonly compilations of the colony’s laws – had no easily indefinable authors in the modern sense. Nor was authorship a significant normative basis of the privilege grants that were justified in terms of the social and economic benefits to the public of a particular publishing enterprise.

A New Era: The William Billings’ Privilege

28Against this background of a preexisting, if somewhat sporadic, colonial practice it is not surprising that the post-independence period did not involve a total break with the past in the form of a sudden rise of fully developed authors’ rights. The important changes that occurred in this time were gradual and, at first, incorporated much of the previous framework of copyright as the publisher’s privilege. A look at the landmark case of the William Billings failed privilege at the very end of the colonial period is demonstrative.

  • 47 Honorable House of Representatives (Boston: 1770), p. 143.
  • 48 Reproduced in R.G. Silver, ’Prologue to Copyright in America: 1772’, Papers of the Bibliographical (...)
  • 49 Journal of the Honorable House of Representatives (1772), p. 35.
  • 50 Journal of the Honorable House of Representatives (1772), pp. 121, 124, 134; reproduced in Silver, (...)
  • 51 Journal of the Honorable House of Representatives (1772), p. 124.
  • 52 William Billings’ Printing Privilege.

29In 1770 William Billings – a tanner by profession as well as a composer, a singing teacher and a choir master – was at the height of his success. He had just published his popular book of tunes, the New England Psalm Singer. Billings, who was working on a second edition, became aware that his popular work was about to be widely reprinted and sold, or so he said. He decided to do something about it. In November 1770 he petitioned the Massachusetts House of Representatives ’praying that he may have the exclusive Privilege of selling a Book of Church-Musick compos’d by him self, for a certain Term of Years’.47 On 16 November a Bill to that effect was brought before the House. Further consideration of the Bill was deferred to the next session. There the matter remained until in 1772 Billings submitted another petition to the Governor, Council and House of Representatives repeating the plea that ’he might have a Patent granted him for the sole Liberty of printing a Book, by him compos’d, consisting of Psalm Tunes, Anthems & Canons’.48 On 9 June the petition was read and Billings was permitted to bring in a Bill.49 The Bill entitled An Act for granting to William Billings of Boston the Sole Privilege of printing and vending a Book by him compos’d, consisting of a great variety of Psalm Tunes, Anthems and Cannons, in two Volumes50 was read in the House of Representatives on 14 June.51 It provided that Billings ’be and hereby is impower’d soley to print and vend his said Composition consisting of Psalm-tunes Anthems and Canons and have and receive the whole and only benefit and emolument arising there-from for and during the full term of seven years’.52

  • 53 William Billings’ Second Petition.

30This was an important landmark in American copyright history. For the first time an author rather than a printer or a bookseller applied to receive exclusive privileges in his own work and an American legislature was willing to bestow rights on an author as such. Billings’ petition and Bill constituted the first appearance of the author as a legitimate claimer of rights. At the same time however the petition, the Bill and the proceedings reflected the transitional character of Billings’ plea for authorial rights. Billings was neither making a general case for authors’ rights nor pleading for a universal copyright regime. He was, rather, petitioning for the familiar ad hoc economic privilege that traditionally was granted to booksellers and printers. Moreover, parts of the petition justified the grant in the common terms of an enterprise useful to the public that should be encouraged. His book of tunes, Billings explained ’ha[d] been found upon Experience, to be to general Acceptance; & which composition is made much Use of in many of our Churches, & is more & more used every Day’.53

  • 54 Ibid.
  • 55 William Billings’ Printing Privilege.
  • 56 Silver, p. 260.
  • 57 William Billings’ Second Petition.

31The petition and Bill included, however, new forms of justification and claims couched in the vocabulary of authorship and intellectual labour. Billings informed ’this Hon:ble Court that he [wa]s apprehensive that an unfair advantage was about to be taken against him, & that others [we]re endeavoring to reap the Fruits of his great Labor & Cost’.54 The Bill referred to the fact that the book ’cost him much pains and application and ha[d] also been very expensive to him’.55 More importantly, the proceedings were fraught with concerns about authorship and originality. The reason for the delay between the first petition in 1770 and the 1772 Bill was probably a suspicion that Billings was not the author of some of the tunes in the book.56 Billings made a point of repeating the fact that the book was composed by him and pointed out that ’he [wa]s the sole Author, & should have been asham’d, to have expos’d himself by publishing any Tunes, Anthems or Canons; compos’d by Another’.57

32Billings’ petition followed the traditional form of publishers’ privileges. It justified the petition in terms of specific public benefits and asked for exclusive printing rights. The novelty was that the petitioner was an author and that, for the first time in the American colonies, he based part of his case on claims of just dessert for the intellectual labour of authors.

  • 58 Journal of the Honorable House of Representatives (1772), p. 134.
  • 59 R. Crawford and D.P. McKay, William Billings of Boston: Eighteenth Century Composer (Princeton, N. (...)

33The fate of Billings’ printing privilege was tragic, at least from the point of view of the petitioner. After it was passed by the House and the Council the Bill together with a few others was vetoed by Governor Thomas Hutchinson and never came into force.58 Hutchinson gave no reasons but it is likely that Billings was caught in the power struggle between the loyalist governor and his growingly antagonistic Assembly. Billings’ friendship with the House Speaker Samuel Adams may have worsened his position in this regard.59 Authors’ rights in America would have to wait for independence.

Andrew Law’s Privilege: The First Author’s Privilege in America?

34After the Revolution the practical and ideological centre of gravity of copyright entitlements shifted towards authors. During the first two decades of independence publishers’grants disappeared and were supplanted by grants to authors. These legislative grants were similar to colonial printing and patent grants. However, the grantees were now authors and pervading the grant practices there gradually appeared a discourse about authors’ rights.

35The 1781 Connecticut grant to Andrew Law is usually credited as the first author’s copyright in America. However, the search for the first author’s grant tends to obscure the complexity of the episode, the gradual character of the transition from publisher’s copyright to authorial rights, and the ironies woven into Law’s relationship with the emerging concepts of copyright and authorship. Andrew Law, born in Milford, Connecticut, was the grandson of the colony’s governor Jonathan Law. He studied divinity at Rhode Island College (later Brown University). He was ordained in 1787 but his main occupation on which he embarked years earlier was his musical career. Law taught music and singing and wrote mostly simple hymn tunes. His success and fame, however, came chiefly from compiling, arranging and publishing tunes by other composers. His printer and publisher was his brother, William Law of Cheshire, Connecticut.

  • 60 R. Sanjek, American Popular Music and its Business: The First Four Hundred Years, 2 vols (New York (...)
  • 61 See I. Lowens, ’Andrew Law and the Pirates’, Journal of American Musicological Society, 13 (1960), (...)

36Law’s pioneering attempt to obtain exclusive exploitation rights may have originated in his strong awareness of the commercial aspects of his occupation. Law was a shrewd businessman who relentlessly sought ways of expanding and capitalising on his music enterprises. In the 1780s he travelled extensively throughout the country, established singing schools and promoted the use of his texts. Ever ambitious in his plans, Law contracted with young college graduate music teachers who promised to exclusively use his books or to exclusively sell them on a commission basis. Law sent several of these teacher-salesmen to the South and other rural areas in the hope of establishing a singing school movement based on his books and creating a steady stream of income.60 These plans went sour due to, among other things, competition from cheaper and more accessible music books including those of Law’s former Philadelphia associate Andrew Adgate. Law was also jealous for what he saw as his publication rights and vigilant in attempting to enforce them. In a period of three decades he was involved in numerous skirmishes and disputes over such matters.61

  • 62 ’Andrew Law’s Petition (1781)’, Primary Sources (hereafter: Andrew Law’s Petition).
  • 63 Ibid.
  • 64 Ibid.

37Law’s Connecticut privilege was probably the result of his commercial awareness and his protective approach toward his publications. In October 1781 he petitioned the Connecticut legislature62 explaining that ’after much application to gain a competent Degree of Knowledge in the Art of singing to qualify himself for teaching of Psalmody; he in the year 1777 made a large Collection of the best & most approved Tunes’.63 Law further explained that publishing the collection cost him ’nearly £500,--Lawful Money’ and that ’by the rapid Depreciation of the Continental Currency the three last Years he has received very little Compensation’.64 Next came the claim of the impending violation of rights:

  • 65 Ibid.

To his great Surprize he now finds that some person or persons unknown to your Memorialist who are acquainted with the Art of Engraving are making attempts to make a plate in Resemblance of that procured by your Memorialist & to strike books under the Name of your Memorialist thereby to defeat the interest of your Memorialist in his plate & in the Sale of his books.65

  • 66 Ibid.

38Observing that ’works of Art ought to be protected in this Country & all proper encouragement given thereto as in other Countries’, Law asked for ’an exclusive patent for imprinting and vending the Tunes following for the Term of five Years’.66

  • 67 The Public Records of the State of Connecticut, 9 vols., ed. by C.J. Hoadly (Hartford: various pub (...)
  • 68 Ibid.
  • 69 Ibid.
  • 70 Ibid.

39The Connecticut legislature was duly impressed. It passed an Act67 describing how Law ’hath with great Trouble & Expense prepared for the Press & produced to be engraved & imprinted a Collection of the best & most approved Tunes & Anthems for the Promotion of Psalmody’.68 It awarded Law ’free & full Liberty & License [...] for the sole printing, publishing & vending the several Tunes & Anthems above-mentioned [...] for the Term of five Years’.69 The grant enumerated by name the protected tunes and imposed a five hundred pound penalty per violation as well as ’just Damages’. Despite a somewhat obscure phrasing the grant was probably stipulated upon Law’s ’printing & furnishing a sufficient number of Copies of the sd. Tunes for the use of the Inhabitants of this State at reasonable prices’.70

  • 71 Lowens, ’Andrew Law’, no. 6, p. 210. I. Lowens, ’Copyright and Andrew Law’, Papers of the Bibliogr (...)
  • 72 The seminal bibliographical work on early American publications Charles Evans’ American Bibliograp (...)
  • 73 Andrew Law’s Petition.

40At first blush, Law’s privilege seems to be a classic author’s copyright. The published original creations of a composer were copied by others, which resulted in the grant of a limited-time exclusive right to publish and sell his tunes. The reality however was more complicated. To begin with, there is much confusion about the exact work that Law composed and what was copied by others. Commentators rely on Law’s petition to conclude that the work was Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody. Unfortunately, it is very probable that such a work never existed.71 There is neither direct nor indirect evidence that it was ever created or published. The assumption that there was such a work was the result of a bibliographical mistake by modern scholars originating from the references in Law’s petition and the Connecticut Act.72 The Connecticut legislature may have believed that Law published or intended to publish a collection encompassing all the enumerated tunes. In fact, Law published the tunes in several separate works. Moreover, significantly, Law was not the composer of the overwhelming majority of the tunes protected under his grant. As he admitted in his petition: ’Copies of some of which he purchased of the original Compilers, others he took from Books of Psalmody printed in England which were never printed in America’.73 In other words Law copied most of his protected tunes from English publications, from manuscripts he obtained from American composers or publishers (who had no exclusive publication rights they could assign), and possibly from American published works.

41In light of these facts, the question arises: in what exactly did the protection awarded by the grant consist? A modern copyright lawyer’s instinctive reaction would be that Law received protection not in the individual tunes, but rather in the particular selection and arrangement of tunes embodied in his collection. This, however, was not the case. As explained, there was no actual work that constituted a collection of the works mentioned in the grant. Moreover, Law asked for protection in the ’Tunes following’, and the Connecticut legislature specifically declared that the Act prohibited ’all the Subjects of this State, to reprint the same, & each & every of the sd. Tunes or Anthems, in the like, or in any other Volume, or Form whatsoever’. Thus Law received exclusive rights in the individual tunes of which he was not the author. In this respect the grant, though bestowed on an authorial figure was close to the traditional publisher’s privilege. Law was simply the first one to publish those tunes in America, or so he claimed.

  • 74 Lowens estimates that the Select Number may have appeared in 1775, but probably did not come out b (...)
  • 75 Ibid., p. 212.
  • 76 Andrew Law’s Petition.
  • 77 See Lowens, ’Andrew Law’, p. 208. Lowens reproduced the title pages of Law’s Select Harmony and of (...)

42The extent to which Law’s grant and his proprietary attitude were the exception rather than the rule is demonstrated by examining some of the instances of piracy of ’his’ works. The piracy of which Law complained in his petition was probably of his 1775 A Select Number of Plain Tunes Adapted to Congregational Worship.74 Although not named in the petition, the most probable culprit was John Norman, one of the few expert music engravers on the scene at that time. The book printed by Norman was his New Collection of Psalm Tunes Adapted to Congregational Worship, a work with a similar title, structure and engraving style to Law’s Select Number. Twenty-three out of the fifty-one tunes in the New Collection were identical to those in the Select Number.75 It is likely that Norman imitated Law’s work, but Law’s accusations may have been exaggerated. A closer look at the two works reveals that out of the twenty-three shared tunes twenty-one were old popular tunes that were published in England and America well before Law’s Select Number and were readily accessible from other sources. Surviving copies of the New Collection do not support Law’s petition claim that the unauthorised reprint was under his name, but the resemblance of the engraving style supports the claim of ’a plate in Resemblance of that procured by your Memorialist’.76 This last complaint was somewhat disingenuous. The practice was not uncommon in the music publishing of the period. Indeed, the engraved title page by Joel Allen of a 1779 edition of another work by Law himself – the Select Harmony – was an exact copy of Henry Dawkins’design for the title page of the 1761 Urania by James Lyon.77

  • 78 For a comprehensive survey of Law’s disputes see ibid.
  • 79 Andrew Law, Rudiments of Music (Cheshire, Conn.: William Law, 1783).
  • 80 Complicating the matter is the fact that the only known copy of Bayley’s collection is later than (...)

43Law was involved in numerous other disputes over printing rights of his works, including with the famous American printer Isaiah Thomas.78 Out of these many disputes, Law’s tussle with Daniel Bayley of Newburyport, Massachusetts sheds the most light on the gradual development of proprietary attitudes toward publications. In the preface of his 1783 Rudiments of Music Law, referring to his earlier work, Select Harmony, expressed his hope ’that it w[ould] not be pirated as the other was, by those who look, not at the public good, but at their own emolument’.79 Law most probably was aiming here at Bayley who published a collection of tunes80 with the following text on its title page:

  • 81 Daniel Bayley, Select Harmony (Newburyport, Mass: Daniel Bayley, 1784).

Select Harmony, containing in a plain and concise manner, the rules of singing chiefly by Andrew Law, A.B. To which are added a number of psalm tunes, hymns and anthems, from the best authors. With some never before published. Printed and Sold by Daniel Bayley, at his house in Newbury-port [...]81

44Forty-two out of the one hundred and forty-four tunes in Bayley’s collection had appeared in Law’s Select Harmony. Half of those were tunes for which Law received protection in his Connecticut grant.

45Legally, there was little Law could do. Bayley was printing in Massachusetts and Law’s state grant was limited to Connecticut. Law’s only remaining option was public denunciation. On November 17, 1784 he published the following in the Essex Journal:

  • 82 Quoted in Lowens, ’Andrew Law’, p. 212.

Andrew Law informs the public, that a book entitled ’Select Harmony, chiefly by Andrew Law,’ which is printed by Daniel Bayley of Newburyport is not chiefly, nor any part of it by him. The title is absolutely false. There are in that book ten or fifteen capital errors in a single page, and whoever purchases that book for Law’s collection, will find it a very great imposition.82

46Two weeks later Bayley published the following response in the Essex Journal:

  • 83 Quoted in ibid.

I would inform the publick, in answer to Mr. A. Law’s charge, that the rules for singing, laid down in my book, as to the scales, characters, and examples are very nearly the same with Mr. Law, excepting some few emendations – as to the music, out of 65 pieces in Mr. Law’s book, I have 45 of them in mine, with the addition of 100 psalms and hymn tunes and anthems. As to the errors, let him who is without cast the first stone.83

  • 84 See ibid., pp. 212-3.

47A few features of this exchange are noteworthy. The first is that the focus of the public exchange was the allegedly misleading use of Law’s name, leaving untouched the issue of copying. As mentioned, the claim that Bayley reproduced Law’s tunes raised no formal legal problem. The marginalisation of the question in the public exchange implies that it also did not raise serious issues of propriety. Reprinting tunes published by others was a very common practice in the music publishing business of the time. It does not appear that anyone saw Bayley’s behaviour in this respect as particularly reprehensible. In fact, a close look at the content of Bayley’s book reveals how unusual and novel Law’s later outraged reaction was to the alleged piracy. Many of the tunes that appeared in both publications were published years earlier in other sources. Moreover, out of the forty-two shared tunes, sixteen, including three protected by Law’s Connecticut grant, were published by Bayley himself in a 1774 book: John Stickney’s, Gentleman and Lady’s Musical Companion. This was years before Law published his Select Harmony and before he applied for copyright protection. Bayley used the same plates from the 1774 book to print the reprinted tunes in his new collection. In fact, it is very likely that it was Law who used tunes previously published in Bayley’s very popular books in his later collections of tunes.84

48The other issue raised in the debate was the allegedly misleading use of Law’s name. Again, trying to capitalise on familiar names of authors and publishers and use them to attract customers was not an uncommon practice in the music publishing business of the time. Thus, the main thrust of Bayley’s public defence of the propriety of his actions was claiming that there was nothing misleading in his book. His book, he explained, was ’chiefly by Andrew Law’ because of the similarities and overlap in content between the two works. The very element that under modern copyright thought may cause Bayley’s actions to look questionable was the foundation of the public justifications he offered. The entire episode, demonstrates the novel and exceptional character at the time of Law’s protective attitudes as a matter of both law and propriety. It also indicates, however, that Law embodied a newly appearing possessive approach and a strong, if not always consistent or entirely good-faith, sense of entitlement toward ’his’ publications.

49Law’s Connecticut privilege was not exactly the unambiguous author’s copyright that some later accounts made it. The grant and the events surrounding it embodied the gradual nature of the change from printers’ privileges to authors’ rights. It marked the beginning of the shift toward authors in American copyright thinking, the emergence of a new proprietary approach to the circulation of texts, and some early legal recognition of such an approach. It also reflected the extent to which this process was gradual and replete with ambiguities, in terms of both the legal means used and the general public attitudes surrounding it.

State Privileges in the Age of Authors’ Rights: John Ledyard’s Privilege

  • 85 An Act for the Encouragement of Literature and Genius, 1783 Conn. Acts 133, available in Acts and (...)
  • 86 See in general F. Crawford, ’Pre-Constitutional Copyright Statutes’, Bulletin of the Copyright Soc (...)
  • 87 The Constitution of the United States of America, Art. 1, §8, cl. 8.
  • 88 Copyright Act 1790, 1 Stat. 124 (1790).
  • 89 See in general O. Bracha, ’Commentary on the Connecticut Copyright Statute 1783’, Primary Sources.

50In a period of less than a decade beginning in 1783 the United States had completed its formal transition from ad hoc publishers’ privileges to a general statutory regime of authors’rights. During the 1780s, following the 1783 legislation of the first general copyright Act in America by the Connecticut legislature,85 all states but one passed similar statutes, modelled to various degrees after the English Statute of Anne.86 The final recognition and entrenchment of general authors’ rights regimes came with the 1789 constitutional clause that empowered Congress to ’promote the Progress of Science and useful Arts, by securing for limited Times to Authors [...] the exclusive Right to their [...] Writings’87 and the 1790 federal Copyright Act.88 Printing privileges, however, did not instantaneously disappear. State grants persisted after the states legislated general copyright statutes and even after the creation of the federal regime. During this period several authors petitioned various state legislatures for individual privileges in their works. Noah Webster is most well-known for his journeys in search of legislative privileges for his book,89 but other authors too petitioned for and sometimes received such grants. Authors probably kept applying for individual privileges either because they did not qualify under the general regimes, or because they hoped for better terms than the standard entitlements bestowed on them.

51Like Andrew Law’s privileges, other state legislative grants constituted a transitory stage between the traditional publishers’privileges and the new general regimes of authors’ rights. Unlike colonial privileges, the grants were awarded to authors in their works. Equally important was the fact that for the first time arguments based on the notion of authors’ rights in the fruit of their intellectual labour started to appear in the public discourse surrounding these grants. At the same time the grantees, the justifications they offered, and the grants themselves often relied on tropes taken from the more traditional vocabulary. The grant was frequently described and justified not so much in terms of authorship as in terms of ’encouraging’ an entrepreneur who offered a specific useful service to the public.

  • 90 J. Zug, American Traveler: The Life and Adventures of John Ledyard, the Man Who Dreamed of Walking (...)
  • 91 Ibid., p. 124.

52John Ledyard’s 1783 Connecticut petition for protection is demonstrative of this ambivalent character of state grants. Ledyard was a romantic figure. In 1773 at the end of his first year at Dartmouth College he was forced to leave the institution due to financial problems. He made a dugout canoe and paddled home to Hartford, Connecticut down the Connecticut River, an event that left a lasting impression on Dartmouth.90 Ledyard followed the common trail of young men in his position – he went to sea. In 1776 after some journeys and adventures, he joined as a mariner in the British Navy the crew of Captain James Cook’s expedition. After the voyage, Ledyard was sent to America as a member of the British Navy. He deserted and returned to Hartford where he wrote his Journal of Captain Cook’s Last Voyage. The printer and bookseller Nathaniel Patten agreed to pay him twenty guineas for the manuscript, a sum almost equal to Ledyard’s entire pay for his four year journey with Cook. The fact that Ledyard wrote the account of the journey in four months and Patten’s rush to publish it were reflected in the quality of the work. Nevertheless, the book was probably very popular and sold well.91

  • 92 ’Petition of John Ledyard (1783)’, Primary Sources.

53In January 1783 Ledyard petitioned the Connecticut legislature and asked for ’the exclusive right of publishing the said Journal or history in this State for such a term as shall be thot fit’.92 Ledyard’s petition is striking in its lack of emphasis on authorship and on authors’ rights as the foundation of his claim. Following a lengthy description of his journeys, Ledyard’s first plea was for patronage in the form of employment, or in the words of the petition:

  • 93 Ibid.

[Y]our Memorialist having lost his pecuniary assistance by his abrupt departure from the British is thereby incapacitated to move in a circle he could wish without the Assistance of his friends & the patronage & recommendations of the Government under which he was born & whose favour and esteem he hopes he has never forfeited: he therefore proposes as a matter of consideration to your Excellency and Council that he may be introduced into some immediate employment wherein he may as well be usefull to his country as himself during the War.93

  • 94 Ibid.

54This was the plea of a subject asking for state patronage in exchange for what he saw as a useful public service. The same spirit pervaded the plea for printing rights that followed. His book, he wrote, ’[he thinks] will not only be meritorious in himself but may be essentially usefull to America in general but particularly to the northern States by opening a most valuable trade across the north pacific Ocean to China & the east Indies’.94 In return for this public benefit Ledyard asked for exclusive printing rights as yet another form of patronage.

  • 95 ’Ledyard Petition Committee Report (1783)’, Primary Sources.
  • 96 Ibid.
  • 97 In general see Bracha, ’Commentary on the Connecticut Copyright Statute 1783’.
  • 98 E.G. Gray, The Making of John Ledyard: Empire and Ambition in the Life of a an Early American Trav (...)

55A committee appointed by the legislature to consider the petition reported that: ’in their Opinion a publication of the Memorialist Journal in his voyage round the Globe may be beneficial to this United States & to the world, & it appears reasonable & Just that the Memorialist should have an exclusive right to publish the same for a Reasonable Term’.95 At this point, in a surprising turn of events, the committee instead of recommending an individual Bill for Ledyard suggested a general copyright statute. It observed that: ’it appears that several Gentlemen of Genius & reputation are also about to make similar Applications for the exclusive right [to] publish Works of their Respective Compositions’, and recommended to ’pass a general bill, for that purpose’.96 This recommendation resulted in the first general copyright regime in America, the Connecticut copyright statute enacted in January 1783.97 Thus, Ledyard, together with the anonymous ’Gentlemen of Genius’ supplied the trigger for the first general American copyright regime. As the legislature probably assumed that the general Act made an individual privilege redundant, Ledyard never received the grant for which he petitioned. Some accounts seem to assume that he or his publisher registered the book for protection under the state regime,98 but there is no direct evidence of that.

  • 99 Zug, pp. 127-8.
  • 100 Ibid.
  • 101 Ibid., pp. 128-9.

56The role played by Ledyard’s petition in the rise of authorship-based copyright and in triggering an act specifying its purpose as the ’Encouragement of Literature and Genius’ is somewhat ironic. Ledyard borrowed extensive parts of his account and straightforwardly plagiarised others. He worked with John Hawkesworth’s An Account of the Voyages Undertaken by the order of his Present Majesty for Making Discoveries in the Southern Hemisphere that was based on the logs of several of Cook’s first voyage officers, an anonymous 1781 book about the third voyage, and probably several other publications.99 Apart from the use of anecdotes, factual information and occasional sentences from those sources, Ledyard copied verbatim the last thirty-eight pages of his book from the 1781 anonymous publication.100 The significant fact is that nobody seemed to care. Ledyard’s biographer appears to be shocked by the ’the appalling theft’. He finds that Ledyard’s behaviour was ’blatantly in violation of the copyright ethos’, and even attempts to absolve him by suggesting that his publisher Patten who was left with an incomplete manuscript may have been the culprit.101 Contemporaries were less shocked. Since the 1781 anonymous book was circulating in the United States, readers would have known of the copying, but there is no evidence that anybody, including the Connecticut legislature, was concerned. The point is exactly that the original-authorship ’copyright ethos’ did not yet exist or was only in its early infancy. Ledyard was not presenting himself to the assembly as a genius creator of original ideas, but rather as an entrepreneur offering a useful service to the state. Thus, his literary borrowing was of little relevance.

Conclusion

  • 102 Another striking example of this character of the early state privileges is Joseph Purcell’s 1792 (...)

57The era of individual state printing grants that lasted until the end of the century was marked by the ambiguity and duality that characterises Law’s and Ledyard’s petitions. Like these two, many of the other state grants were still rooted in the colonial patterns of state patronage extended to a person who offered a useful public service.102 On the other hand, the state grants were an important site in which the reorientation of copyright towards authorship began to appear. The grantees were now authors rather than publishers, or at least, as in the case of Ledyard and Law, held an ambiguous status in between these two categories. The public discourse surrounding the grants and the general states’Acts sometimes triggered by individual petitions were often laced with the rhetoric of a new authorship-based ideology. The notions that state encouragement was given to authors for their original creation and that authors deserved a just reward for the expense and labour that was invested in their intellectual creation gradually appeared and took root in this discourse.

58By the end of the century the practice of individual printing privileges had disappeared. The concept of copyright as an author’s right in his original creation that first appeared ambivalently within this practice became the official ideology of American copyright. Episodes like Law’s and Ledyard’s grants would be reconceptualised as paradigmatic instances of authors’ grants, and the irony and ambiguities that pervaded them would be forgotten. In the nineteenth century copyright’s new official representation as authors’ rights would be subverted not by the old colonial grant tradition but rather by the forces and demands of a new industrialised market society.

Notes

1 This paper is based upon material developed for the AHRC-funded project Primary Sources.

2 O. Bracha, ’The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright’, Yale Law Journal, 118 (2008), 186-271.

3 In general see: L.R. Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968); M. Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993); B.W. Bugbee, The Genesis of American Patent and Copyright Law (Washington: Public Affairs Press, 1967), pp. 43-8; L.V. Gerulaitis, Printing and Publishing in Fifteenth-Century Venice (Chicago: American Library Association, 1976); J. Loewensein, The Author’s Due: Printing and the Prehistory of Copyright (Chicago: University of Chicago Press, 2002); E. Armstrong, Before Copyright: The French Book-Privilege System, 1498-1526 (Cambridge: Cambridge University Press, 1990).

4 G.P. Winship, The Cambridge Press, 1638-1692 (Portland: Southworth-Anthoensen Press, 1945), p. 9.

5 L.G. Starkey, ’The Benefactors of the Cambridge Press: A Reconsideration’, Studies in Bibliography: Papers of the Bibliographical Society of the University of Virginia, 3 (1950), 267-70.

6 This would never happen. Whether due to its remoteness from the metropolis or the decline of the persecution of Puritans in the 1640s the Cambridge press served mainly the local needs of the colony. J.W. Tebbel, A History of Book Publishing in the United States, 2 vols. (New York: R.R. Bowker Co., 1972), I, p. 5.

7 Ibid., p. 7; Winship, pp. 11-15; G.E. Littlefield, The Early Massachusetts Press, 1638-1711 (New York: B. Franklin, 1969), p. 101.

8 Tebbel, p. 10.

9 Ibid., p. 4.

10 Winship, pp. 18-20; R.F. Roden, The Cambridge Press, 1638-1692 (New York: Dodd, Mead, and Company, 1903), pp. 14-17.

11 Tebbel, p. 17.

12 On the English licensing system see Patterson, pp. 114-42.

13 Records of the Governor and Company of the Massachusetts Bay in New England, 1661-1674, ed. by N.B. Shurtleff, 5 vols. (Boston: W. White, 1853-4), IV, pt. 2, p. 62. The two licensers were Captain Daniel Goodkin and the Reverend Jonathan Mitchel.

14 Ibid., p. 73.

15 Ibid., p. 141.

16 Virginia had a short episode with the press in 1683 which ended with a complete ban and the forced departure of the printer William Nuthead. It was reintroduced to Virginia only in 1730. Nuthead and his press moved to Maryland in 1685. The press was brought to Pennsylvania in 1685 by William Bradford who moved to New York in 1693. Connecticut received its first press in 1709 and Rhode Island in 1727. The press was first set up in South Carolina in 1731 and in North Carolina in 1749. James Parker brought the press to New Jersey in 1754. After being persecuted in Boston Daniel Fowle moved to New Hampshire and established its first press in 1756. In Delaware it was introduced in 1761. Georgia got its first press in 1763. Tebbel, pp. 11-16.

17 Quoted in Tebbel, p. 1.

18 L.C. Wroth, A History of Printing in Colonial Maryland, 1686-1776 (Baltimore: Typothetae of Baltimore, 1922), pp. 1-2; H. Lehmann-Haupt, The Book in America: A History of the Making, and Selling of Books in the United States (New York: Bowker, 1951), p. 14; I. Thomas, The History of Printing in America with a Biography of Printers and Account of Newspapers, 2 vols. (Albany: J. Munsell, 1874), I, p. 551.

19 Calendar of State Papers, Colonial Series, American and West Indies, 1681-1685, ed. by J.W. Fortescue, 45 vols. (London: Public Records Office, 1964), XI, p. 558, instruction num. 1428 of 3 December 1683.

20 Documents Relative to the Colonial History of the State of New York, ed. by John R. Brodhead et al, 15 vols. (Albany: Weed, Parsons and Company, Printers, 1853-87), III, p.375. This was probably a standard phrasing of the orders that were sent to many colonies. In 1691 and 1694 the governors of Maryland received royal orders almost identical in phrasing (the 1694 instructions to Francis Nicholson read: ’And forasmuch as great inconveniences may arise by the Liberty of Printing within our Province of Maryland, you are to provide by all necessary Orders that no person use any Press for printing upon any occasion whatsoever without your special License first obtained’; quoted in Wroth, p. 18). Very similar terms were used in the 1690 instructions to Lord Francis Howard of Effingham Governor of Virginia; ibid., p. 2.

21 See Lehmann-Haupt, pp. 43-5; Thomas, pp. 16, 235-6.

22 See Lehmann-Haupt, p. 45.

23 See Minutes of the Provincial Council of Pennsylvania, ed. by Samuel Hazard, 10 vols. (Philadelphia: J. Severns, 1851-2), I, pp. 366-7. See also Tebbel, pp. 39-40. Fletcher brought Bradford to New York and recruited him for publicizing in print his recent achievements in the defense of the colony.

24 L.W. Levy, Emergence of A Free Press (New York: Oxford University Press, 1985), p. 32.

25 See O. Bracha, Owning Ideas: A History of Anglo American Intellectual Property (2005) (unpublished S.J.D. Dissertation, Harvard Law School), p. 254.

26 In 1641 the General Court of Massachusetts granted Stephen Day, the first printer of the colony, three hundred acres of land. The Court mentioned the fact that Day was the first to set up a press in the colony, but that may have been a thin cover to the fact that the grant was actually made in lieu of a business debt owed to Day by John Winthrop Jr. See: Littlefield, p. 106; Winship, p. 11. In 1658, in response to a petition of Samuel Green, the successor of Day in the position, the General Court granted him three hundred acres of land ’for his Encouragement’. Thomas, pp. 43, 52.

27 Shurtleff, IV, p. 527.

28 Ibid., p. 559.

29 In general see: J. Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (London: Mansell, 1994), pp. 10-36; Patterson, pp. 78-113.

30 Shurtleff, IV, p. 331.

31 Ibid., II, p. 244.

32 See: Bugbee, p. 106; Lehmann-Haupt, p. 99; Tebbel, p. 46.

33 In 1775, a period that already saw considerable growth of the trade, there were fifty printing houses in the colonies which were about to become the United States; Thomas, p. 17.

34 Tebbel, p. 42; Lehmann-Haupt, p. 99.

35 Tebbel, p. 46. Lehmann-Haupt described it as ’a sense of mutual obligation’ and as ’common decency and enlightened self-interest’; Lehmann-Haupt, p. 100.

36 Ibid., p. 101.

37 See G.W. Paschal, A History of Printing in North Carolina (Raleigh: Edwards & Broughton, 1946), pp. 4-5.

38 An Act for appointing Commissioners to Revise and Print the Laws of this Province, and for granting to his Majesty, for defraying the Charge thereof, a Duty of Wine, Rum and distilled Liquors, and Rice imported into this Province, §II, in A Collection of all the Public Acts of Assembly, of the province of North-Carolina, now in force and use (Newbern: James Davis, 1751), pp. 242-5.

39 Ibid., §IV.

40 Ibid., §§IV-V.

41 Wroth, p. 18.

42 Ibid., p. 21.

43 Ibid.

44 Ibid., p. 23.

45 See ibid., pp. 28-9, 33-4, 49-50.

46 An Act to revise, digest & Print the Laws of this Colony [1750], 3 N.Y. Laws 832-5; An Act to revise, digest & Print the Laws of this Colony [1772], 5 N.Y. Laws, 355-7.

47 Honorable House of Representatives (Boston: 1770), p. 143.

48 Reproduced in R.G. Silver, ’Prologue to Copyright in America: 1772’, Papers of the Bibliographical Society of the University of Virginia, 11 (1958), 259-62; ’William Billings’ Second Petition (1772)’, Primary Sources (hereafter: William Billings’ Second Petition).

49 Journal of the Honorable House of Representatives (1772), p. 35.

50 Journal of the Honorable House of Representatives (1772), pp. 121, 124, 134; reproduced in Silver, p. 259; ’William Billings’ Printing Privilege (1772)’, Primary Sources (hereafter: William Billings’ Printing Privilege).

51 Journal of the Honorable House of Representatives (1772), p. 124.

52 William Billings’ Printing Privilege.

53 William Billings’ Second Petition.

54 Ibid.

55 William Billings’ Printing Privilege.

56 Silver, p. 260.

57 William Billings’ Second Petition.

58 Journal of the Honorable House of Representatives (1772), p. 134.

59 R. Crawford and D.P. McKay, William Billings of Boston: Eighteenth Century Composer (Princeton, N.J.: Princeton University Press, 1975), pp. 226-7.

60 R. Sanjek, American Popular Music and its Business: The First Four Hundred Years, 2 vols (New York: Oxford University Press, 1988), II, pp. 5-6.

61 See I. Lowens, ’Andrew Law and the Pirates’, Journal of American Musicological Society, 13 (1960), 206-23.

62 ’Andrew Law’s Petition (1781)’, Primary Sources (hereafter: Andrew Law’s Petition).

63 Ibid.

64 Ibid.

65 Ibid.

66 Ibid.

67 The Public Records of the State of Connecticut, 9 vols., ed. by C.J. Hoadly (Hartford: various publishers, 1894-1953), III, pp. 537-8; ’Andrew Law’s Privilege (1781)’, Primary Sources.

68 Ibid.

69 Ibid.

70 Ibid.

71 Lowens, ’Andrew Law’, no. 6, p. 210. I. Lowens, ’Copyright and Andrew Law’, Papers of the Bibliographical Society of America, 53 (1959), 150-9.

72 The seminal bibliographical work on early American publications Charles Evans’ American Bibliography has several references to a work entitled Collection of the Best and Most Approved Tunes and Anthems for the Promotion of Psalmody by Andrew Law. Lowens explains that these ’would appear to be ghosts manufactured by Evans’. See Lowens, ’Andrew Law’, no. 6, p. 210. In another work Lowens explains in detail the circumstances that led to the mistake by Evans and others and to the entrenchment of the mistaken assumption that such a work existed. See Lowens, ’Copyright’, pp. 158-9.

73 Andrew Law’s Petition.

74 Lowens estimates that the Select Number may have appeared in 1775, but probably did not come out before 1777. See Lowens, ’Andrew Law’, p. 208.

75 Ibid., p. 212.

76 Andrew Law’s Petition.

77 See Lowens, ’Andrew Law’, p. 208. Lowens reproduced the title pages of Law’s Select Harmony and of Urania. Ibid., plate 1.

78 For a comprehensive survey of Law’s disputes see ibid.

79 Andrew Law, Rudiments of Music (Cheshire, Conn.: William Law, 1783).

80 Complicating the matter is the fact that the only known copy of Bayley’s collection is later than Law’s Rudiments of Music where he deplored the piracy. Lowens explains that indirect evidence indicate the existence of a prior edition by Bayley and makes it possible to deduce its content. Lowens, ’Andrew Law’, pp. 211-2.

81 Daniel Bayley, Select Harmony (Newburyport, Mass: Daniel Bayley, 1784).

82 Quoted in Lowens, ’Andrew Law’, p. 212.

83 Quoted in ibid.

84 See ibid., pp. 212-3.

85 An Act for the Encouragement of Literature and Genius, 1783 Conn. Acts 133, available in Acts and laws of the State of Connecticut in America (New London, Connecticut: T. Green, printer to the Governor and Company of the State of Connecticut, 1784), p. 133.

86 See in general F. Crawford, ’Pre-Constitutional Copyright Statutes’, Bulletin of the Copyright Society of the U.S.A, 23 (1975), 11-37.

87 The Constitution of the United States of America, Art. 1, §8, cl. 8.

88 Copyright Act 1790, 1 Stat. 124 (1790).

89 See in general O. Bracha, ’Commentary on the Connecticut Copyright Statute 1783’, Primary Sources.

90 J. Zug, American Traveler: The Life and Adventures of John Ledyard, the Man Who Dreamed of Walking the World (New York: Basic Books, 2005), pp. 19-20.

91 Ibid., p. 124.

92 ’Petition of John Ledyard (1783)’, Primary Sources.

93 Ibid.

94 Ibid.

95 ’Ledyard Petition Committee Report (1783)’, Primary Sources.

96 Ibid.

97 In general see Bracha, ’Commentary on the Connecticut Copyright Statute 1783’.

98 E.G. Gray, The Making of John Ledyard: Empire and Ambition in the Life of a an Early American Traveler (New Haven: Yale University Press, 2007), pp. 95-6.

99 Zug, pp. 127-8.

100 Ibid.

101 Ibid., pp. 128-9.

102 Another striking example of this character of the early state privileges is Joseph Purcell’s 1792 South Carolina grant for a map of the state. Purcell was in charge of producing the map, but was not necessarily the person who actually created it. The grant of exclusivity was part of his appointment to the position of state Geographer. See: Statutes at Large of South Carolina, 11 vols., ed. by T. Cooper (Columbia, S.C.: A.S. Johnston, 1836-73), V, pp. 219-20; ’Purcell’s Printing Privilege (1792)’, Primary Sources.

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