University of Virginia Library

Prologue to Copyright in America: 1772
by
Rollo G. Silver

Five years after the colonies declared their independence, the Connecticut Assembly passed the first copyright legislation—an act granting Andrew Law protection in the publication of his Collection of the Best Tunes for the Promotion of Psalmody. Two years later, as a result of John Ledyard's petition for the protection of his account of Captain James Cook's last voyage, the Connecticut Assembly passed the first general copyright act, the text of which was based upon the English "Act for the Encouragement of Learning." Soon after Connecticut, other states passed similar laws and by 1786 twelve states had given protection to their authors.

It would seem, therefore, that the American author awaited freedom from English rule before pressing for protective legislation. Although this may be considered true for the great majority of American writers, there is at least one instance of an attempt to secure copyright before the Revolution.

In 1770, William Billings, of Boston, published his New-England Psalm-Singer, a book of tunes which he composed during his years as singing teacher and choir master. It was evidently a popular work, for Billings immediately started to prepare a second volume. While engaged in this enterprise, he probably feared the prospect of a pirated edition. At any rate, he decided to address a petition for protection to the House of Representatives, then in session at Harvard College. The petition has been lost, but it was duly recorded on November 7, 1770:

On November 13, 1770:

Encouraged by this, Billings lost no time in preparing a bill. It was brought before the House on November 16, 1770:

Although the House postponed the decision, it did not do so because of any doubt concerning the principle of granting copyright. The reason for the delay is stated in Billings' next petition, now printed from the manuscript:

To his Excellency Thomas Hutchinson Esq: Capt. Gen: &c the Honorable his Majesty's Council & ye hon:ble House of Representatives of said Province in Gen: Court assembled.

May ye 27:th 1772

The Memorial of Will:m Billings, &c.

Whereas your Memorialist in the Year 1770 prefer'd his Petition to this Hon:ble Court, therein praying for the Reasons therein mention'd, 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, which has 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.

That your Memorialist has compos'd a 2:d Vol: in Addition, to make his Performance more compleat, tho' he is not insensible, that further Additions may be made.—He would also inform this Hon:bl Court that he is apprehensive that an unfair Advantage is about to be taken against him, & that others are endeavoring to reap the Fruits of his great Labor & Cost.—That this hon:bl Court so far countenanc'd & sustain'd his Petition, as to commit the same, & that your Committee reported in favor of your Petitioner; but it being suggested by a worthy Member of this hon:ble Court, that they should be certain that your Petitioner was the real Author of the Book, whereupon the Consideration thereof was refer'd to the next Session. In answer to which your Memorialist avers that he is the sole Author, & should have been asham'd, to have expos'd himself, by publishing any

Tunes, Anthems, or Canons, compos'd by Another; however fully to satisfy this hon:ble Court, your Memorialist stands very ready to be examin'd by any Committee, or the whole General Assembly, if they think proper; tho' he doubts not, that at this Time of Day there are sundry Members of this hon:ble Court upon that Head fully satisfy'd; but so it is may it please your Excellency & Honors, that your Memorialist's former Petition is (as he is inform'd) either lost or misplac'd; he therefore prays that the same may be reviv'd, & that he may, by the Indulgence of this Hon:bl Court, be favor'd with the alone Privilege, of printing his own Composition for a number of Years, as to this Hon:ble Court shall seem meet, & your Memorialist, as in Duty Bound, shall ever pray.

Wm Billings.[4]
Thus it appears that, in 1770, the House would have been willing to pass the copyright bill if they had been certain that the work was original. When Billings' second petition was received on June 9, 1772, it was "Read and Ordered, That the Prayer be granted, and that the Petitioner have Leave to bring in a Bill."[5] Fortunately, the manuscript of the bill remains in the Massachusetts Archives:

Be it enacted by the Governour Council & House of Representatives— That the said William 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 recieve (sic) the whole and only benefit and emolument arising therefrom for and during the full term of seven [fourteen (deleted)] years from the first Day of August next during which term all persons are hereby strictly prohibited either by himself or any by for or under him, from printing or vending his P. Composition either in whole or in part, and that if any person or persons during sd. term shall presume to print vend or barter the same either in whole or in part as aforesd. he she or they so printing vending or bartering shall forfiet (sic) and pay the sum of Ten pounds 0:0 for each and every offence and so

toties quoties; to be recover'd by the said Wm. Billings to and for his use in any Court of Record proper to try the same unless the Person or Persons so printing vending or bartering his said Composition shall be first impower'd by the said William Billings in writing under his hand & seal.

In the House of Representatives July. 14. 1772
Read a first second & third time & pass'd to be Engrossed
Sent up for Concurrence
T. Cushing Spkr
In Council, July 14, 1772,
Read a first & second time & passed a Concurrence, to be Engrossed
Jn. Cotton D.Secry.[6]

In reading the text of this bill, one cannot help wondering what motives prompted the change in the term of copyright. The English law, the Statute of Queen Anne, permitted a copyright of fourteen years for new books. And when, on May 2, 1783, the Colonial Congress recommended the passage of copyright laws by the several States, it suggested a term of not less than fourteen years. Perhaps the House of Representatives thought a term of seven years would appear to be a fair compromise.

As the Speaker's endorsement shows, the bill was passed by the House on June 14, 1772.[7] The Council passed it, too, but Hutchinson refused to sign it. It was returned to the House along with other bills and the statement that "his Excellency had not given his Assent to the following Bills which had been laid before him."[8]

Billings must have been discouraged, for his second book was not published until 1778. He had not obtained the copyright for his proposed two-volume work; but this episode is significant because a colonial legislative body had passed a bill for copyright, even though it was vetoed by the representative of the Crown.

Notes