The Origin of Two American Copyright Theories
-- A Case of the Reception of English Law --

Hideaki Shirata

This report explains historical background of two American copyright theories; one is "regulative theory" and the other is "property theory." Those theories are based on opposing views about the fundamental principle of copyright. In this report, we trace back to the original concept of copyright in England, and find the concept came from a trade monopoly. The monopoly was surmounted by the first copyright statute in 1710; the statute enacted as an anti-monopoly law. Summing up, the original concept of copyright developed focusing on monopolies in England. On the other hand, booksellers and scholars had a different view. They argued that copyright was based on Lockean natural law concept. America in the colonial age received the natural law theory. Because copyright theory in England of those days was so complicated and had aristocratic nature, they preferred a simple and clear principle. On the contrary, legislators in America enacted copyright statutes as trade regulation laws. They adopted the structure of English style copyright statute that was founded on anti-monopoly concept. Hence, we can stand on two different bases when explaining basic theory or the nature of copyright in America. In the light of the developtment of information industries and increasing digital works, copyright attracts much public attention. Legislators seem to adopt property theory; they are extending and strengthening copyright aggressively. From the historical viewpoint, however, we should pay more attention to regulative theory to avoid monopolistic side effects of copyright.