Noah Webster, America’s First Copyright Lobbyist

,

In The Federalist #43, James Madison observed, regarding the patent and copyright clause in the U.S. Constitution, that in it “the public good fully coincides … with the claims of individuals.” Noah Webster, creator of “An American Dictionary of the English Language” and the ‘Blue-Backed speller’, was an early and important advocate of copyright in the young Republic. He was also a lobbyist in his own interest, i.e. for-profit commercial publishing. In his efforts to bring about copyright reform, he exemplified Madison’s dictum, of the coincidence of public and private interest, and so provides us with an early example of how intellectual property laws come to be crafted, and revised, a process which continues to the present day.

Aside from compiling and publishing his eponymous Dictionary, the source of his enduring fame, Noah Webster was also involved in many literary and publishing projects during the days of the Revolutionary period and the early Republic. He ended his career, at the venerable age of 84, widely known and respected for his Dictionary and other works supporting a broader public education (e.g., the Blue-backed Speller) and scholarship for Americans of the young Republic. But, as with any of those men and women who are termed the ‘Founders’ of the American Republic, careful students will bear in mind that he was also a person with distinct, personal motivations, including economic ones.

Born in 1758, Webster was a recently-graduated student from Yale and budding schoolmaster when he began work on his first spelling book. By the time he turned 25, the Revolutionary War was ending and new possibilities seemed to be opening up in early post-colonial America, still comprised of individual semi-sovereign States (Virginia, Massachusetts, New York, and so on) in loose association under the Articles of Confederation. Even at this early point in his career as an author, he began to seek a per-state form of copyright protection for his works, and in effect obtained it, by going to each state and petitioning the legislatures to take up his issue.

“Every attempt of this nature undoubtedly merits the encouragement of the public; because it is by such attempts that systems of education are gradually perfected in every country, and the elements of knowledge rendered more easy[sic] to be acquired. Men of industry or of talents in any way, have a right to the property of their production; and it encourages invention and improvement to secure it to them by certain laws, as has been practiced in European countries with advantage and success. And it is my opinion that it does no damage to the state, and may be of benefit to it, to vest, by a law, the sole right of publishing and vending such works in the authors of them.”

Webster invested the time that was necessary and prudent to create the best chance he could for the fruit of his intellectual labor – for his book as well as for his broader goal of improving primary education through its use. In short, he perceived that in order to get his petitions in front of the state legislatures, he had to present himself, and his concerns, in person. Which is to say, he took on the role of a lobbyist. While some may believe the primary connotation of “lobbyist” is negative, or at least a fraught term, the origin of the role is of Constitutional origin. It appears, by implication, in the First Amendment which alludes to “…the right of the people…to petition the Government for a redress of grievances”. A petitioner, or lobbyist, is one who asks the Government or its members to consider a preferred policy. Perhaps the most interesting aspect in this (pre-Constitutional) phase of Webster’s efforts turned out to be that the laws he sought were not the laws he got. What he sought were individual “letters of patent,” a personal right for him to assert printing and publication rights over his book, the “Grammatical Institute” (1783), a workbook intended for use in primary education. The result instead was basic general copyright legislation, based on the Statute of Anne5, covering those works published within each State. While these efforts did appear to help motivate the state legislators into passing copyright statutes, the texts the 12 former colonies passed (Delaware opted not to pass) did not closely follow the petitions Webster made to them.

In contrast to the state-by-state approach, James Madison made a succinct case for a national approach to copyright protection, within one of his arguments for the proposed new Constitution (The Federalist #43, Jan. 1788):
“The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in [patents and copyrights] with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”

Two years before he died, Webster published an essay “On the Origins of the Copy-Right Law of the United States” (1841) discussing his role in the early copyright legislation.8 He was quite generous as to the size and extent of that role; but his assessment of his role seems to have been exaggerated over time. The language that became Article I, Section 8, Clause 8 of the US Constitution, the copyright and patents clause, was inserted in early September, 1790 and passed unanimously later in the month. It reads that Congress shall have the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is a generalized version of copyright protection, and while it points explicitly to Authors, it also includes the social aspect, of promoting the progress of Science (referring to copyright, of books and other publications) as well as to the useful arts (referring to Discoveries, i.e., inventions), which are to be protected by patents.) In May, 1790, Congress passed and President Washington signed the first U.S. copyright law, without substantial controversy.10 In addition to books, copyright protection was extended to maps and charts. The term was 14 years, with an additional renewal available for another 14. Webster duly registered his copyrights and went on with his work. This law followed the form and scope of English copyright law, as well of the US states which had passed their local versions.

Had he left off where the laws stood by 1790, Webster’s effect on the US copyright statutes might have been considered important due to how early they occurred, but otherwise minimal. Skipping ahead now four decades: Andrew Jackson is President and Noah Webster is 72 years old. He has become famous and relatively wealthy through the enduring popularity and profitability of his publications. His thrice-removed younger cousin, Daniel Webster, is a Senator representing Massachusetts. And some of the (Federal) copyrights in the earliest works of Noah Webster are nearing their expiration date.11 In 1829 and 1830, he returned to a lobbying role again, in defense of extending the term of copyright protection.

England had, during 1814, extended the British term of copyright by an additional 14 years. Parliament had also provided that widows and young children could inherit a copyright interest if present in the works of their male parent. These revisions did not go unnoticed by authors and publishers in North America

In 1828, William Ellsworth, Webster’s son-in-law, was elected to Congress, representing Connecticut, and began to serve in 1829. This development opened up some interesting possibilities for Webster. In December of 1830, Noah traveled to DC, and met with President Jackson. He delivered a ‘lecture’ to members of Congress and staff on the House floor again arguing for and in effect petitioning for: an extension of copyright, and the recognition of inheritance rights. In every way he could, “promoting the object of obtaining a law for securing copy-rights.”

Webster was accorded the dignity and veneration due to someone of his age and literary achievements. This sort of lobbying, based on personal notoriety, may be compared to a similar performance, decades later, by ‘Mark Twain’ (Samuel L. Clemens). Twain testified, accompanied by other literary lights, in the run up to another copyright revision in December 1906. Ellsworth wrote the House report, and Daniel Webster sponsored the bill in the Senate. By the end of January 1831, the bill had passed both houses of Congress, and the President soon signed it. It included several substantial changes, including the extension of copyright protection to musical works, the extension of term for another 14 years, and the inheritance right for widows and orphans, among other technical clauses. Webster’s lobbying efforts were, in that way, crowned with success.19 He died a few years later, but his intellectual property rights lived on. They were assigned (sold) in the 1840’s to the Merriam company, resulting in the Dictionary and its successors thereafter becoming known as Merriam-Webster. James Madison opined, in Federalist #43, that the proper aim of a national copyright law was to set up and maintain a balance between the public good and private ones. This was exemplified in the process leading up to the 1830 revisions to US copyright.

More recently (1998-2003) there has been a substantial controversy, and (eventually) a case argued before the Supreme Court, about the wisdom of a 20-year extension to the term of US copyright. Congress, acting similarly as it had in the 1830 Act, listened to various advocates and sought to provide a balance to the public and private interest. Whether they, in either case, achieved this is a matter of opinion. But that copyright evolves, in part, through the legislative process, as well as through hearing the petitions of private interests is something we can learn through examples such as Noah Webster and his copyright campaign.

In the end, Webster should be seen not only as an agent of his policy avocations and causes, but also as an advocate of his own economic interests. The right to petition the legislature is as enshrined in our laws as much as are any of the other enumerated rights, including copyright. The copyright career of Noah Webster is a case study on that very point.

Dave Davis

Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as research analyst. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. Dave is fascinated by copyright issues, content licensing and data. Also, rock and roll music.

Don't Miss a Post

Subscribe by Email

For inquiries related to this blog, email blog@copyright.com or join the conversation on social media with @copyrightclear.