Ars Historica

“History, real solemn history, I cannot be interested in… I read it a little as a duty; but it tells me nothing that does not either vex or weary me. The quarrels of popes and kings, with wars and pestilences in every page; the men all so good for nothing, and hardly any women at all.”

Little in the history of the United States is without root in a prior culture. Copyright law, a controversial topic in all times, is no exception. In fact, the United States owes almost the entirety of its copyright system to the British system that came before it.

The Stationers’ Company

In 15th century England, book copying, binding, illuminating, and selling was dominated by a guild of stationers. After the invention of type, it gradually became a printer’s guild and was given monopoly status by the Crown. Partially a response to the growing popularity of the writings of William Tyndale, as well as the rest of the Protestant Reformation, the Stationers’ Company had the authority to seize books unlawfully printed.

The Stationers’ charter ensured that once a book was entered in the official record, it could not be produced by another printer. Rights were given, not to the original author, but to the printer who had paid the author for the book. Under the Stationers’ monopoly, copyright was perpetual, although rights could be sold and transferred by the printers.

The Statute of Anne

The English Civil War, which partially came about because of abusive monopoly power, gave birth to the first modern copyright law. The Statue of Anne, or “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”, granted authors rather than printers the right to reproduce works. Individuals gaining the power of copyright was a big change from the monopolies the guild once possessed.

A second change the Statute brought about was limiting the time of copyright. Works already in print were given twenty-one years exclusive rights, while new works received fourteen years, with the opportunity for an additional fourteen if the author was still living. Once copyright expired, the work would enter the public domain, giving anyone the right to print.

While the changes brought about by the Statute of Anne revolutionized copyright, it was not without problems. The law only extended to England, Scotland, and Wales; printers in Ireland and the American colonies routinely printed works which were under copyright.

Donaldson v. Beckett

The printers, who had enjoyed a monopoly under the older system, did not go away quietly. While they enjoyed a continuance of their monopoly for twenty-one years, they wanted something of a common law copyright that would continue in perpetuity. This did not accord with the Statute of Anne, but the printers held that copyright holders had a natural right to a perpetual monopoly. In 1774, the House of Lords declared there was no common law copyright, thus upholding the Statute.

Conclusion

The American founders, only a few years later, would include a similar copyright law into the new federal system. As with the struggles in England, American copyright would prove to be controversial for years to come.

References:

Patterson, Lyman Ray. Copyright in Historical Perspective. Nashville, TN: Vanderbilt University Press, 1968.

Lessig, Lawrence. Free Culture. New York: Penguin Press, 2004.

The 2010 Census is shaping up to be one of the more controversial events of the year (and we haven’t even begun election season). With allegations of presidential micromanaging, fears of “reverse racism” (now that a black guy is in charge, us white folks better watch out), and Congressional representatives telling people to only fill out one question, this Spring looks to be an exciting time for fear mongering and tin foil hat crazies.

The Argument

The one argument that keeps popping up is that you are not legally required to fill out anything other than the number of people currently living in your home. All other questions are unconstitutional and therefore null and void. With a disclaimer that I am neither a lawyer nor qualified to offer legal advice, it is quite clear from both the Constitution and history that this argument is wrong and could potentially get you into a lot of trouble.

The Clause in Question

Article 1, section 2 of the U.S. Constitution states that “[an] Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” This is the only mention of the Census in the Constitution (except for a bit on proportional representation, which is certainly important).

It is immediately clear why there is controversy, because the clause only says that a census must be taken, but the details are left to the Congress. What the dissenters argue, however, is that the Constitution only requires an enumeration of the people living in a household, but is that a valid legal and historical argument?

The Historical Context

The first problem with Bachmann’s argument is that it imposes a new definition of the word census (or “enumeration”), one which ignores the context surrounding the writing of the Constitution. Historically, a census has had nothing to do with representation or government funding, but everything to do with taxation. Most of us know the Nativity story of the Christian Gospels, how that Joseph was required by the Romans to return to the land of his birth in order to be registered. This was not simply so that the Emperor could feel powerful knowing a lot people were under his control, but so that he could feel powerful while raking in sacks and sacks of money.

In North America, the first proper census was one of New France in 1666. The express purpose of it was to gain the king’s attention and make New France the center of the French colonial empire. The enumeration included age, gender, martial status, and occupation. There was no race question, although those of the First Nations were excluded, so there was some racial test.

There were multiple modern-style censuses in the English and Spanish colonies of the 17th and 18th centuries, but all provided more information than merely the number of inhabitants in a household. The point is this: the historical context from which the American census arose was more than a simple numbering of how many people lived in an area, it was always (and continues to be) a detailed look at the inhabitants of a region.

The First Census Law

Statute 2, on 1 March 1790, provided for census marshals and assistants to be appointed so that they could:

cause the number of the inhabitants within their respective districts to be taken; omitting in such enumeration Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colours of free persons, and the free males of sixteen years and upwards from those under that age.

This was, of course, brought into law by many of those who had not only had a hand in writing the Constitution, but also in ratifying it. (In Constitutional matters, it is always a good idea to consult those who ratified it as well as those who wrote it.) Assistant marshals were fined $200 for failing to make a return, or for lying on a return, while marshals were fined $800 for the same offense. An individual who failed to cooperate with a marshal could be fined $20, roughly $250 in 2010. It’s quite clear the framers of the Constitution had more in mind than just a mere number of citizens.

The Census Questions

The 1790 census had only 6 questions: head of family, number of free white males 16 and up, number of free white males under 16, number of free white females, number of all other free persons (excluding American Indians not taxed), and number of slaves. By 1860, those questions had increased to 13:

• name
• address
• age
• sex
• color (white, black or mulatto) for each person
• whether deaf and dumb, blind, insane or idiotic
• value of real estate and of personal estate owned (required of all free persons)
• profession, occupation or trade of each male and female over 15 years of age
• place (state, territory or country) of birth
• whether married within the year
• whether attended school within the year
• whether unable to read and write (for persons over 20)
• whether a pauper or convict

In 1940, even more questions were added, including (but not limited to) number of weeks worked the previous year, whether employed with public or emergency works, and educational level. In 2000, a newer “long form” was sent out that included over 100 questions. Again, it is clear the census was always intended as more than a list of the number of people living in the United States (as well as being less intrusive than prior censuses).

Necessary and Proper

In addition to the historical context and evidence, it is also Constitutional for the Census Bureau to ask questions concerning race, gender, and household relationships. The Constitution gives the Congress the right to enumerate the population (which, as I have argued, has never meant a mere numbering) and the “necessary and proper clause” (1.8) gives it the ability to make all laws “which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (emphasis added).

Those who claim one does not have to fill out the entire census form, or give false answers, are simply misguided as to the history and legality of the census. And, to end on a selfish note, future historians will rely on this information in writing of our times.