Copyright: Its History and Its Law (part 3 of 5)
"(Sec. 58.) That the record books of the copyright office, together with the indexes to such record books, and all works deposited and retained in the copyright office, shall be open to public inspection; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress.
{Sidenote: Preservation of deposits}
"(Sec. 59.) That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collections of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Columbia for use therein.
{Sidenote: Disposal of deposits}
"(Sec. 60.) That of any articles undisposed of as above provided, together with all titles and correspondence relating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remaining articles and other things to be destroyed: Provided, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: And provided further, That no manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it.
{Sidenote: Fees}
{Sidenote: Only one registration required}
"(Sec. 61.) That the register of copyrights shall receive, and the persons to whom the services designated are rendered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certifying any instrument of writing for the assignment of copyright, or any such license specified in section one, subsection (e), or for any copy of such assignment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each additional one hundred words. For comparing any copy of an assignment with the record of such document in the copyright office and certifying the same under seal, one dollar. For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assignment. For any requested search of copyright office records, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: Provided, That only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time."
{Sidenote: Present organization}
The organization of the Copyright Office under the present administration of the Librarian of Congress, Herbert Putnam, appointed by President McKinley in 1898, and the Register of Copyrights, Thorvald Solberg, the first and only occupant of that post, appointed by the Librarian of Congress in 1897, presents a standard of efficiency, celerity and economy which is a model for governmental departments, or indeed for any administrative business. The enormous amount of detail is systematized and controlled by a remarkable method of record, and blank forms provide in the utmost variety of detail for every feature of the work of correspondence, especially in calling the attention of applicants to defects in their applications, which are many and various.
{Sidenote: Efficiency of methods}
As the result of this organization, the complex law of March 4, 1909, was put in operation July 1, 1909, without a hitch; and inquiries made to the Copyright Office are answered, usually on the same day, with remarkable dispatch and accuracy. For instance, the many letters directed mistakenly to the Register of Copyrights, instead of to the Commissioner of Patents, the frequent applications for the protection of prints designed for articles of manufacture, and the multitudinous applications on articles not subject to copyright, or for projected works or for book manuscripts previous to publication, are each covered by a form letter with an index card of a distinctive color for each, so that a full record is kept in the Copyright Office of such errors without unduly complicating the copyright records proper. The Copyright Office now handles approximately half a million items of entries, deposits and correspondence during the year, and covers into the Treasury more than $100,000, returning to the government a substantial sum above the direct cost of administration.
{Sidenote: Registration 1909-1910}
The Copyright Office prints annually a summary of its work, from which it appears that in the year ending June 30, 1910, the first year of operation of the new copyright code, it had issued copyright certificates to the number of 96,634, representing an equal number of registrations at $1 each. In addition thereto 11,433 registrations were made for photographs at fifty cents each, for which no certificates were issued. This annual summary for the fiscal year ending June 30 is printed as a part of the annual report, for presentation to Congress each December; and a summary for the calendar year is printed in separate form at the beginning of the new year.
{Sidenote: Certificates for court use}
In addition to the regular certificates in card form, the Copyright Office also issues certificates in quarto shape when desired, which are especially utilized in court proceedings as parts of the record.
{Sidenote: Searches}
The Copyright Office makes searches for information, under the provisions of the new law, at the rate of fifty cents for each full hour of the person employed in such search.
The new Rules provide for such searches as follows:
"(49.) Upon application to the Register of Copyrights, search of the records, indexes, or deposits will be made for such information as they may contain relative to copyright claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user."
{Sidenote: Patent Office registry for labels}
Question having been raised by the Commissioner of Patents whether the act of 1909 did not charge the Copyright Office with the registration as "prints" of labels, etc., the Attorney-General, in an opinion of December 22, 1909, held that the copyright act of 1909 did not relieve the Patent Office of this duty, and it is still required to register all prints which have heretofore been registered therein under the act of June 18, 1874, and in the same manner as they have heretofore been registered.
Many of the features of the Copyright Office, such as the forms for applications, certificates, etc., have been treated in detail in the chapter on formalities, which should be read in connection with this chapter.
{Sidenote: Foreign practice}
In Great Britain there is no official copyright office, but registration has been made at Stationers' Hall in charge of the Stationers' Company, a quasi public institution, while deposit is made primarily in the national library at the British Museum. The records at Stationers' Hall and the printed or other catalogues of the British Museum are public. But there is no printed copyright list except of prohibitions of importations issued by the Commissioners of Customs. Under the new British measure there is no registration at Stationers' Hall or elsewhere.
In France there is no copyright office proper and the deposit copies required from the printer are deposited with the Ministry of the Interior at Paris or at the Prefecture or town clerk's office in the provinces. In other European countries, the registration, when required, is made for the most part in one of the government departments, as Ministry of Interior, Department of Agriculture, etc. In Italy, as in several Spanish-American countries, the registry is provincial instead of central, though in some of these countries provision is made for report from time to time to a central government office. In few countries is there a copyright office proper, distinctively organized and named, except in certain English colonies, as Australia and Canada, which have now a copyright office and a Registrar of Copyrights.
XVIII
INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS
{Sidenote: International protection of property}
With the growth of civilization, the practice of protecting in all countries the property of the citizen of any other country has also grown, until it is now a generally recognized principle. This principle, applied to literary property, has resulted in international copyright among most civilized nations.
{Sidenote: Early copyright protection}
The first provision for international copyright, aside from the ancient practice in France of giving protection to authors of other countries who published their works therein, was made by Prussia in 1837, in a law which provided that any country might secure copyright for its authors in Prussia to the extent of reciprocal privileges granted by that country.
{Sidenote: Early English protection}
England followed, in 1838, with an "act for securing to authors, in certain cases, the benefit of international copyright," which empowered the Queen, by an Order in Council, to direct that the author of a book first published in a foreign country should have copyright in the United Kingdom, on certain conditions, providing that country conferred similar privileges on English authors. The act of 1844 extended this privilege to prints, sculpture and other works of art, and provided for international playright. It expressly denied the privilege, however, to translations of foreign works, and it was not until 1852 that provision was fully made for translations of books and of dramatic compositions, the latter with the proviso that "fair imitations or adaptations" of foreign plays or music might be made. In this early period Great Britain negotiated treaties with the German states (1846-55), France (1851), Belgium (1854), Spain (1857), and Sardinia (1860), afterward extended throughout Italy. The treaties generally included a proviso that duties on books, etc., imported into the treaty country, should not be above a stated sum, and in the case of France there was to be no duty either way. The domestic copyright acts had also provided, on the condition of first publication in the United Kingdom, a practical measure of international copyright. The international copyright act of 1875 repealed the exception as to plays, and authorized the protection of foreign plays against imitation and adaptation. Under these international copyright acts, registration at Stationers' Hall, at a fee of one shilling only, was made a condition of the copyright of foreign works, and the deposit of a copy of the first edition and of every subsequent edition containing additions or alterations at Stationers' Hall, for transmission to the British Museum, was required, besides other local formalities, particularly in connection with the limited protection of translations, which was for five years only.
{Sidenote: Adhesion to Berne convention}
Great Britain became a signatory power of the Berne convention of 1886, and the international copyright act of 1886, amending and in part repealing the previous international copyright acts, was passed to enable Her Majesty through Orders in Council to become a party to this convention, which was ratified in 1887. This was made effective with respect to the eight other countries which were parties to the original Berne convention by the Order in Council of November 28, 1887, taking effect December 6, 1887. The provisions of 1886 made registration and deposit unnecessary for foreign works which had complied with the formalities requisite in the country of origin, but it was nevertheless held in Fishburn v. Hollingshead, in 1891, by Justice Stirling, that a foreign work must comply with the provisions of the copyright acts applicable, as to registration and delivery, to works first produced in the United Kingdom, since a foreign work was entitled only to the protection afforded to natives. In Hanfstaengl v. Holloway, in 1893, Justice Charles took the opposite view, and he was supported by the Court of Appeal in Hanfstaengl v. American Tobacco Company, in 1894, which decided finally that the acts of 1842 and 1844 were repealed as to foreign works and that registration and deposit of a foreign work were unnecessary. The decision of the Court of Appeal in 1908, in Sarpy v. Holland, that notice of reservation may be in foreign languages, confirmed the provisions that no formalities beyond those in the country of origin were requisite.
{Sidenote: Effect of Berne convention}
With the development of the International Copyright Union, through the Berne convention of 1886, copyright relations between the leading countries became more largely and truly international, and most of the existing treaties of the unionist countries were superseded by the international convention proper. In accordance, however, with the terms of the convention, treaties broader than the provisions of the convention might still remain in force or be later negotiated between one country and another, and such conventions, on the "most favored nation" basis or otherwise, have in fact been negotiated, especially by Germany, within the present century. The arrangement for protection of foreign works in unionist and other countries, under special treaties, will be found in succeeding chapters on copyright in foreign countries, where treaties broader than the international convention or made since 1900 are also scheduled. The main features of international copyright arrangements are tabulated in condensed form in the conspectus of copyright by countries given in the preliminary pages.
{Sidenote: International literary congresses}
At the time of the Universal Exposition in Paris in 1878, the French Societe des Gens de Lettres issued invitations for an International Literary Congress, which was held in Paris, under the presidency of Victor Hugo, commencing June 4, 1878. From this came the Association Litteraire et Artistique Internationale, which held subsequent congresses at London in 1879, at Lisbon in 1880, at Vienna in 1881, at Rome in 1882, at Amsterdam in 1883, at Brussels in 1884, and at Antwerp in 1885, at which the extension of international copyright was discussed and advocated.
{Sidenote: Fundamental proposition}
The Congress at Antwerp, in 1885, ratified the following proposition: "The author's right in his work constitutes an inherent right of property. The law does not create, but merely regulates it."
{Sidenote: Preliminary official conference, 1883}
Partly at the initiative of this association and at the invitation of the Swiss government, a preliminary conference of official representatives of the several nations was held at Berne in September, 1883, at which the following draft, submitted by the International Literary and Artistic Association, was substantially adopted as the basis for a general convention on the part of civilized nations:
"1. The authors of literary or artistic works published, represented, or executed in one of the contracting States, shall enjoy, upon the sole condition of accomplishing the formalities required by the laws of that State, the same rights for the protection of their works in the other States of the Union, whatever the nationality of the authors may be, as are enjoyed by natives of the States.
{Sidenote: Propositions of 1883}
"2. The term literary or artistic works comprises books, pamphlets, and all other writings; dramatic and dramatico-musical works; musical compositions, with or without words, and arrangements of music; drawings, paintings, sculptures, engravings, lithographs, maps, plans, scientific sketches, and generally all other literary, artistic, and scientific works whatsoever, which may be published by any system of impression or reproduction whatsoever.
"3. The rights of authors extend to manuscript or unpublished works.
"4. The legal representatives and assignees of authors shall enjoy in all respects the same rights as are awarded by this convention to authors themselves.
"5. The subjects of one of the contracting States shall enjoy in all the other States of the Union during the subsistence of their rights in their original works the exclusive right of translation. This right comprises the right of publication, representation, or execution.
"6. Authorized translations are protected in the same manner as original works. When the translation is of a work which has become public property, the translator cannot prevent the work from being translated by others.
"7. In the case of the infringement of the above provisions, the courts having jurisdiction will apply the laws enacted by their respective legislatures, just as if the infringement had been committed to the prejudice of a native. Adaptation shall be considered piracy, and treated in the same manner.
"8. This convention applies to all works that have not yet become public property in the country in which they were first published at the time of coming into force of the convention.
"9. The States of the Union reserve to themselves the right of entering into separate agreements among themselves for the protection of literary or artistic works, provided that such agreements are not contrary to any of the provisions of the present convention.
"10. A Central International Office shall be established, at which shall be deposited by the Governments of the States of the Union the laws, decrees, and regulations affecting the rights of authors which have already been or shall hereafter be promulgated in any of the said Governments. This office shall collect the laws, etc., and publish a periodical print in the French language, in which shall be contained all the documents and information necessary to be made known to the parties interested."
{Sidenote: First official conference, 1884}
This draft, as adopted, was submitted by the Swiss government to the first formal international conference for the protection of the rights of authors, held at Berne from September 8 to 19, 1884. At this conference representatives from thirteen countries were present--Austria, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Holland, Italy, Salvador, Sweden and Norway, and Switzerland; and the result of their deliberations was a new "draft convention for the creation of a general union for the protection of the rights of authors," similar to the Universal Postal Union, in the following form:
"1. Authors placing themselves within the jurisdiction of the contracting countries will be afforded protection for their works, whether in print or manuscript, and will have all the advantages of the laws of the different nations embraced in the Union.
"2. These privileges will be dependent upon the carrying out of the conditions and formalities prescribed by the legislation of the author's native country, or of the country in which he chooses to first publish his work, such country being, of course, one of those included in the convention.
"3. These stipulations apply alike to editors and authors of literary works, as well as to works of art published or created in any country of the Union.
"4. Authors within the jurisdiction of the Union will enjoy in all the countries the exclusive rights of translation of their works during a period of ten years after publication in any one country of the Union of an authorized translation.
"5. It is proposed that it shall be made legal to publish extracts from works which have appeared in any country of the Union, provided that such publications are adapted for teaching or have a scientific character. The reciprocal publication of books composed of fragments of various authors will also be permitted. It will be an indispensable condition, however, that the source of such extracts shall at all times be acknowledged.
"6. On the other hand, it will be unlawful to publish, without special permission of the holder of the copyright, any piece of music, in any collection of music used in musical academies.
"7. The rights of protection accorded to musical works will prohibit arrangements of music containing fragments from other composers, unless the consent of such composer be first obtained."
{Sidenote: Second official conference, 1885}
A second international conference was held at Berne from September 7 to 18, 1885, for the further consideration of the project. This was participated in by representatives from sixteen countries,--Argentina, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Honduras, Holland, Italy, Paraguay, Sweden and Norway, Spain, Switzerland, and Tunis. The United States was also represented at that conference by a "listening delegate," Boyd Winchester, then the United States minister at Berne.
{Sidenote: Third official conference, 1886}
The negotiations at Berne culminated at the third formal conference, of September 6 to 9, 1886, by agreement on a convention constituting an international copyright union, the Union Internationale pour la Protection des OEuvres Litteraires et Artistiques, which was signed on September 9, by the plenipotentiaries of ten countries, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia. At this conference the United States was represented only as in 1885.
{Sidenote: Berne convention, 1886:}
The convention included twenty-one articles besides an additional article and final protocol, article I being as follows: "The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works."
{Sidenote: Authors and terms}
It was provided (art. II) that authors of any one of the countries shall enjoy in the other countries the same rights as natives, on complying with the formalities prescribed in the country of origin, i. e., of first publication, or in case of simultaneous publication, in the country having the shortest term of protection, for a period not exceeding the term of protection granted in the country of origin. This protection was extended (art. III) to the publishers within the Union of works whose authors belong to a country outside the Union.
{Sidenote: "Literary and artistic works" defined}
The expression "literary and artistic works" was defined (art. IV) by specification, including dramatic and musical works, but not mentioning photographs or actual works of architecture. Translations were protected (art. V) for ten years, which period should run for works published in incomplete parts (livraisons) from the publication of the last part, or in the case of volumes or serial collections (cahiers), from that of each volume, and in all cases from the thirty-first of December of the calendar year of publication. Authorized translations were protected (art. VI) as original works, but translators of works in the public domain could not oppose other translations. Reproduction of newspaper or periodical articles was permitted (art. VII) unless expressly forbidden, but this prohibition could not apply to political discussions, news matter or "current topics" (faits divers). Liberty of extract from literary or artistic works otherwise was left (art. VIII) to domestic legislation or specific treaties.
{Sidenote: Performing rights}
Protection was specifically extended (art. IX) to the representation of dramatic or dramatico-musical works or translations thereof, and, on condition of express reservation, to musical works; and adaptations, arrangements, and other unauthorized indirect appropriations were specially included (art. X) among illicit reproductions subject to determination by the courts of the respective countries.
{Sidenote: Other provisions}
The author indicated on a work, or the publisher of an anonymous or pseudonymous work, was given (art. XI) authority to institute proceedings, but the tribunal might require certificate that the formalities in the country of origin had been accomplished. Pirated (contrefait) works might be seized (art. XII) on importation, according to domestic law. The convention was not to derogate (art. XIII) from the right of each country to domestic control by legislation or police. Existing works, not fallen into the public domain in the country of origin (art. XIV), were protected. The several countries reserved (art. XV) the right to make separate and particular treaty arrangements. An international office was established (art. XVI) under the name of "Office of the International Union for the Protection of Literary and Artistic Works," under the authority of the Swiss Confederation, the expenses to be borne by the signatory countries. Revision at future conferences was provided for (art. XVII) with stipulation that alterations should not be binding except by unanimous consent. Accession of other countries was permitted (art. XVIII) on notice to the Swiss Confederation, and similar provision was made (art. XIX) for the accession of colonies. Ratification within one year (art. XX) and operation within three months thereafter (art. XXI) and withdrawal by one year's notice of denunciation were provided for. The "additional article" provided that the convention should not affect existing conventions between the states, conferring more extended powers or containing other stipulations not contrary to the convention.
{Sidenote: Final protocol}
On the exchange of ratifications September 5, 1887, a final protocol was agreed upon, extending article IV to cover photographs in those countries whose domestic legislation or treaty arrangements permitted such protection; extending article IX to choregraphic works in countries in which they were covered by domestic legislation; explicitly excepting mechanical music reproductions from protection; and specifically referring to domestic or treaty arrangements, the protection afforded by article XIV to existing works not fallen into the public domain. The final protocol also provided for the organization of the international office under regulation by the Swiss Confederation, for French as the official language, for the allotment of expenses among the countries, and for other administrative details.
{Sidenote: Ratification in 1887}
The Berne convention, as signed in that city September 9, 1886, by the representatives of ten nations, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia, was ratified in the same city September 5, 1887, by exchange of ratifications on the part of all these powers except Liberia, and became effective December 5, 1887. The French acceptance included Algiers and the other French colonies, the Spanish acceptance all Spanish colonies, and the British acceptance, India, Canada and Newfoundland, the South African and the Australian colonies. To these powers were later added Luxemburg (1888), Monaco (1889), Montenegro (1893), which however withdrew in 1900, Norway (1896), Japan (1899), Denmark (1903), Sweden (1904), and Great Britain's new colonies, the Transvaal and Orange Free State (1903), leaving three nations of first rank outside the Union, i. e., Austria-Hungary, Russia, and the United States, aside from the South American countries later associated in the Pan American Union.
{Sidenote: Paris conference, 1896}
The revision of the Berne convention provided for in art. XVII, which was to be made according to the final protocol at a conference at Paris to be called by the French government within from four to six years, was not actually undertaken until 1896. When the signatory powers met in conference at Paris, April 15 to May 4, 1896, they adopted an "additional act," of four articles, which besides making verbal amendments for clarification, substantially modified articles II, III, V, VII, XII, XX, of the Berne convention and the first and fourth numbers of the final protocol; and issued also an "interpretative declaration" as to both the Berne convention and the final protocol, the additional act and the interpretative declaration being sometimes cited together as "the Paris acts."
{Sidenote: Paris Additional Act}
The Additional Act of Paris (art. I and II) included "posthumous works" amongst protected works, replaced the privileges given to publishers by a provision extending protection to authors not subjects of unionist countries for works first published in one of those countries; extended the protection of translations throughout the term of the original work, but with the proviso that the right for any language should expire after ten years unless the author had provided for a translation into that language; specifically included serial novels published in periodicals, and required indication of the source of articles reproduced from periodicals. The right to seize piratical works was given to the "competent authorities" of each country without specific reference to importation. Withdrawal by denunciation was made applicable only to the country withdrawing, leaving the convention binding upon all others.
It further provided (art. III) that the several countries of the Union might accede to these additional acts separately, as might other countries, and for ratification within a year and enforcement within three months thereafter.
{Sidenote: Paris Interpretative Declaration}
The Declaration, simultaneously adopted, interpreting the convention of Berne and the Paris additional act, declared (1) that protection depends solely on accomplishment in the country of origin of the conditions and formalities prescribed therein; (2) that "published works" (oeuvres publiees) means works actually issued to the public (oeuvres editees) in one of the Union countries--"consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of works of art, do not constitute publication"; and (3) that "the transformation of a novel into a play, or of a play into a novel" comes under the protection provided.
{Sidenote: Ratification in 1897}
The Paris acts, as adopted May 4, 1896, were ratified September 9, 1897, the declaration becoming effective immediately and the additional act three months later. Both the additional act and the interpretative declaration were ratified by Belgium, France, Germany, Haiti, Italy, Luxemburg, Monaco, Montenegro, Spain, Switzerland and Tunis. Great Britain ratified only the additional act and not the interpretative declaration, while Norway, which had become a unionist country April 13, 1896, ratified only the interpretative declaration and not the additional act. Thus from December 9, 1897, the Berne convention and the Paris acts together constituted, with the exceptions noted, the fundamental law of the International Copyright Union.
{Sidenote: Berlin conference, 1908}
A second conference for revision was called in 1908 by the German government, and met at Berlin October 14 to November 14, resulting in the signature on November 13, 1908, of a revised convention continuing or reconstituting the International Copyright Union and replacing by substitution the Berne convention and Paris acts in those states accepting it by ratification. To this conference the German government invited not only the signatory powers of the Union, then fifteen,--Belgium, Denmark (which had acceded to the Union in 1903), France, Germany, Great Britain, Haiti, Italy, Japan (1899), Luxemburg, Monaco, Norway, Spain, Sweden (1904), Switzerland, and Tunis; but also non-unionist countries, of which representatives were sent from twenty countries,--Greece, Holland, Portugal, Roumania and Russia, China, Persia and Siam, Liberia, the United States of America, Mexico, Guatemala and Nicaragua, Argentina, Chile, Colombia, Ecuador, Peru, Uruguay and Venezuela. The working committees were made up exclusively from representatives of the signatory powers, only these countries participating in the votes; active participation otherwise was confined to representatives of countries expecting to become signatory powers, Holland and Russia, while the other participants acted as observing representatives or supplied information on request.
{Sidenote: United States' position}
The United States delegate, Thorvald Solberg, Register of Copyrights, was present only to make observations and report, with no power to vote or to take part in the discussions, as stated in the remarks for which, on October 15, he was called upon, as follows:
"In 1885 and 1886, at the conferences convened to draft the convention to create the International Union for the Protection of Literary and Artistic Property, the United States was represented. At that time, however, it was not deemed possible to send a plenipotentiary delegate, nor could such a representative be sent to attend the first conference of revision which met at Paris in 1896.
"When the present conference was arranged for--early in the year--the German ambassador at Washington wrote to the Secretary of State of the United States a letter explaining the purpose and scope of this congress, inviting the Government of the United States to send delegates. The ambassador's letter explained that, in addition to delegates representing governments in the union, there would be present representatives from a considerable number of non-union nations. It was further stated that the attendance of such delegates from non-union countries would be greeted with special pleasure. This because of the conviction that whatever might be the final position taken by the non-union countries, or their laws, in relation to copyright, participation in the proceedings of this conference by such delegates from non-union countries would at all events contribute to arouse and increase interest in the Berne Union and its beneficial work.
"The German ambassador's letter further explained that the delegates from non-union countries attending the conference would have full freedom of action; that they might confine themselves to following the discussions without taking any stand with regard to them, and that it would be left to the discretion of the non-union governments as to whether they would empower their delegates to join the Berne Union.
"The Government of the United States again finds it impracticable to send a delegate authorized to commit the United States to actual adhesion at this time to the Berne Convention. Nevertheless, it has been felt that the representation of the United States, even within the limitations indicated, might be beneficial: first, to indicate the sympathy of our Government with the general purposes of the International Copyright Union; second, to secure such information regarding the proceedings of the conference as might prove valuable; and third, to place (by means of such representation) at the disposal of the conference authoritative knowledge as to the facts of copyright legislation and procedure within the United States--information which it is hoped may be of use to the members of the conference in their deliberations."
{Sidenote: Welcome of non-unionist countries}
In response to the participation of non-unionist countries, Prof. L. Renault of the French delegation, Chairman at the working sessions of the conference, spoke of the wisely liberal practice of including non-unionist countries in the invitation, recognized "the difficulty which these countries find in passing through the halting places," which the Union had itself gone through, and referred with especial gratification to the representation of Holland, Russia and the United States.
{Sidenote: Death of Sir Henry Bergne}
The closing days of the conference were darkened by the fatal illness of Sir Henry Bergne, head of the British delegation, who expired on November 15, the day after the adjournment of the conference, at the successful culmination of work toward which he had given many years of active and effective life.
{Sidenote: Berlin convention, 1908:}
{Sidenote: "Literary and artistic works" defined}
The Berlin convention included thirty articles, covering the same ground as those of the Berne convention and the Paris acts, but somewhat differently arranged, so that comparison is not quite direct. Article 1 reconstitutes the International Copyright Union. The expression "literary and artistic works" is defined (arts. 2 and 3, covering previous arts. IV-VI) as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction, such as: books, pamphlets and other writings; dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('mise en scene') of which are fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences. Translations, adaptations, arrangements of music and other reproductions transformed from a literary or artistic work, as well as compilations from different works, are protected as original works without prejudice to the rights of the author of the original work." The contracting countries are pledged to secure protection fully for these categories and for photographic works and "works obtained by any process analogous to photography" and to protect "works of art applied to industry" so far as domestic legislation allows.
{Sidenote: Authors' rights}
{Sidenote: "Country of origin"}
The convention assures (art. 4, broadening art. II) to authors within the jurisdiction of a unionist country for their works, whether unpublished or published for the first time in one of the countries of the Union, such rights in each other unionist country as domestic laws accord to natives, as well as the rights accorded by the convention, "not subject to any formality" and "independent of the existence of protection in the country of origin," and regulated exclusively according to the legislation of the country where the protection is claimed. The "country of origin" is defined as "for unpublished works, the country to which the author belongs; for published works, the country of first publication" and for works published simultaneously in several countries within the Union (as also in countries without the Union), the unionist country granting the shortest term of protection. Published works (oeuvres publiees) are again defined as works that have been issued (oeuvres editees). "The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art and the construction of a work of architecture do not constitute publication."
{Sidenote: Broadened international protection}
Authors of a unionist country first publishing in another country of the Union enjoy (art. 5) in the latter country the same rights as national authors; and authors of a non-unionist country first publishing a work in any unionist country enjoy (art. 6) in that country the same rights as national authors and in the other Union countries the rights accorded by the convention. This article greatly broadens the scope of the convention, and by recognizing without formalities the rights of authors of non-unionist countries, makes it of a world-wide inclusion for works unpublished or first or simultaneously published within a unionist country, to the full extent of domestic protection in each unionist country, whether the country of origin does or does not grant protection,--thus giving to citizens of the United States full protection throughout unionist countries on the sole condition of first or simultaneous publication within one of them.
{Sidenote: Term}
The convention takes the important step (art. 7) of providing for a uniform term of "the life of the author and fifty years after his death" in place of the respective national terms, with the proviso that if this term should not be adopted uniformly by all the unionist countries, duration shall be regulated by the law of the country where protection is claimed, but cannot exceed the term in the country of origin. For photographic and analogous works, posthumous, anonymous or pseudonymous works, the term of protection is regulated by the law of the country where protection is claimed, but may not exceed the term in the country of origin. The exclusive right of translation is assured (art. 8) for the entire term. Serial stories and other works published in newspapers or periodicals (art. 9) may not be reproduced, but other newspaper articles may be reproduced by another newspaper if reproduction has not been expressly forbidden, on acknowledgment of the source, but protection is not extended to news of the day or press information on current topics. The right of extract is to be governed (art. 10) by domestic legislation.
{Sidenote: Performing rights, etc.}
The public representation or performance of dramatic, dramatico-musical or musical works, whether published or not (art. 11), and adaptation, dramatization or novelization, etc. (art. 12), are fully included; and this protection applies (art. 13) to the mechanical reproduction of music, with the proviso that this application shall not be retroactive and shall be regulated in each country by domestic legislation. Infringing mechanical musical appliances may be seized on importation even though lawful in the country from which they come. Cinematograph and analogous productions of literary, scientific or artistic works are included (art. 14) as subject to copyright protection.
{Sidenote: Other provisions}
The provisions as to the identification of author or publisher (art. 15) of the work, seizure of infringing works (art. 16) and domestic regulation and supervision (art. 17) are continued. The convention is applied (art. 18) to existing works, provided they have not fallen into the public domain in the country of origin or by expiration of the term in the country where protection is claimed.
{Sidenote: National powers reserved}
It is specially provided (art. 19) that the convention does not prevent "more favorable provisions" through domestic legislation "in favor of foreigners in general"; and the right of any country to make special treaties conferring more extended rights (art. 20) is continued.
{Sidenote: Organization provisions}
The provisions as to the International Bureau made in the Berne protocol are continued (arts. 21-23), and also those as to revision (art. 24) through conferences, to take place successively in the countries of the Union. Accession of other countries (art. 25) and colonies (art. 26) is to be made as heretofore, by notification through Switzerland, and it is provided that acceding countries may adhere to the present convention or those of 1886 or 1896. The present convention is made (art. 27) to replace the Berne convention of 1886 and the Paris acts of 1896, but it is specifically provided that the states signatory to the present convention may declare their intention to remain bound by specific provisions of previous conventions. The convention was to be ratified (art. 28) not later than July 1, 1910, and was to take effect (art. 29) three months thereafter, subject to withdrawal of any country by denunciation on one year's notice, in which case the convention would still remain in force for the other countries. It is specially provided (art. 30) that the states which introduce into their legislation the new term of protection shall notify the Swiss government accordingly, and any renouncements of reservations shall be similarly notified.
{Sidenote: Ratification in 1910}
The Berlin convention was signed in that city November 13, 1908, by the representatives of Germany, Belgium, Denmark, Spain, France, Great Britain, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis, the signatories being in alphabetical order according to the French names of the countries. Ratifications were exchanged in Berlin June 9, 1910, and the convention became operative September 9, 1910. The convention was ratified without reservation by Germany, Belgium, Spain, Haiti, Liberia, Luxemburg, Monaco and Switzerland, and with reservations by France and Tunis (as to works of applied art); Japan (as to exclusive right of translation and the public performance of musical works); Norway (as to works of architecture, periodical articles and retrospective action). Denmark and Italy have not ratified the Berlin convention and therefore remain under the Berne convention and Paris additional act and declaration. Great Britain will be enabled under the new copyright act to accede to the Berlin convention, but has hitherto remained under the Berne convention and the Paris additional act, and Sweden, not having ratified, remains under the Berne convention and the Paris declaration. Portugal acceded in 1911.
{Sidenote: Official organ}
The official documents of the International Copyright Union, and especially accessions thereto, as well as current copyright information from all parts of the world, are given in the Droit d'Auteur, published monthly at Berne, under the able editorship of Prof. Ernest Roethlisberger, from the Bureau of the Union, as its official organ.
{Sidenote: Montevideo congress, 1889}
Three years after the Berne convention, a congress of seven of the South American republics was held at Montevideo, at which a convention with reference to literary and artistic copyright was adopted January 11, 1889. The Montevideo convention has been ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892), though not by Brazil and Chile, which were also participants in the congress. It was in general on the lines of the Berne convention, though no mention was made of unpublished works. A work first published or produced in any one of the signatory countries and protected in that country in accordance with its requirements, was also accorded in the other countries the rights secured in the first country, but not for a longer term than was given in the country where protection was claimed. Dramatic works were specifically and playright impliedly protected. Provision was made for the inclusion of countries outside of South America, under which Belgium, France, Italy and Spain have become parties to the convention, but only in relation with Argentina and Paraguay.
{Sidenote: Pan American conferences}
In the winter of 1889-1890, the first Pan American conference was held in Washington, and at this a committee, of which Andrew Carnegie was the United States member, reported in favor of the adoption of the Montevideo convention. No action seems to have been taken, but it is probably this convention which is referred to as the first Pan American copyright treaty. The second Pan American copyright treaty, according to this numeration, was that adopted at the Pan American conference in Mexico City, signed January 27, 1902, at the same time with the patent and trade-mark treaty. This copyright convention was modeled somewhat on the lines of the Berne convention. At the Pan American conference in Rio de Janeiro, 1906, what is spoken of as the third Pan American copyright treaty, was adopted, and signed August 23, 1906, but this was really not so much a new treaty, as a supplementary convention providing for the development and regulation of international bureaus at Havana and Rio de Janeiro, and its provisions were never put into operation. A fourth Pan American copyright treaty, distinct from patent and trade-mark protection, was adopted at the Pan American conference at Buenos Aires in 1910 and signed August 11, 1910. The Mexico copyright convention was not ratified by the Senate of the United States until 1908 and was proclaimed by the President, April 9, 1908; the Rio convention has never been accepted by the United States; the Buenos Aires convention, replacing that of Mexico, was promptly approved by the U. S. Senate, February 16, 1911, but is yet to be acted upon by the other countries.
{Sidenote: Mexico City conference, 1902}
At the Pan American conference held in Mexico City in 1902, the second copyright convention was signed January 27, 1902, by representatives of Argentina, Bolivia, Colombia, Costa Rica, Chile, the Dominican Republic, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay and the United States, the delegates of Nicaragua, Paraguay and the United States acting ad referendum.
{Sidenote: Mexico convention, 1902}
The first article of the Mexico convention formed the signatory states into "a Union for the purpose of recognizing and protecting the rights of literary and artistic property," which was defined (art. 2) as including "books, manuscripts, pamphlets of all kinds, no matter what subject they may treat of and what may be the number of their pages; dramatic or melodramatic works; choral music and musical compositions, with or without words, designs, drawings, paintings, sculpture, engravings, photographic works; astronomical and geographical globes; plans, sketches and plastic works relating to geography or geology, topography or architecture, or any other science; and finally, every production in the literary and artistic field, which may be published by any method of impression or reproduction." Copyright was defined (art. 3) as the exclusive right to dispose of the work, to publish, to sell and translate it or authorize translation, and to reproduce it in any manner, in whole or in part.
{Sidenote: Indispensable condition}
The "indispensable" condition of copyright was (art. 4) a petition from the author or his representative to the proper office, presumably of his own government, with two deposit copies, and if he desired recognition in other countries, with additional copies for each country designated, which copies were to be forwarded to the respective governments accompanied by a copy of the certificate of registration. Authors were secured (art. 5) in each country the rights granted by their own government within the term of protection of the country of origin--in works published in installments, the term of copyright to date from the publication of each part. The country of origin was defined (art. 6) as that of first publication, or in case of simultaneous publication, that having the shortest period of protection. The name or acknowledged pseudonym on a work (art. 9) was accepted as indication of the author except on proof to the contrary.
{Sidenote: Special provisions}
Authorized translations or those of non-protected works (art. 7) could be copyrighted as original works, but not to the exclusion of other versions of the latter. Newspaper articles might be reproduced (art. 8) on acknowledgment of source and author's name, if given; addresses before legislative assemblies, court or public meetings (art. 10) might be freely reproduced, and extracts made (art. 11) in publications devoted to public instruction or chrestomathy.
"Unauthorized indirect use" or reprint under pretext of annotations or criticism (art. 12) was specified as unlawful reproduction. Pirated copies might be seized (art. 13) in any of the countries, without prejudice to other punishment of the infringer. Each country was to exercise (art. 14) police power in its own jurisdiction. The convention was to become effective for each signatory power three months after communication of its ratification to the Mexican government, and any participant might withdraw after one year's notice of denunciation, the convention to remain binding on the other powers. The signatory powers were to declare (art. 16) whether they would accept accession from countries unrepresented at the conference.
{Sidenote: Ratification}
The Mexico convention of 1902 was ratified by Guatemala (1902), Salvador (1902), Costa Rica (1902), Honduras (1904) and Nicaragua (1904), and by the United States (1908), perhaps also by the Dominican Republic and Cuba, and does not seem to be operative in the other countries whose representatives signed the treaty.
{Sidenote: Rio de Janeiro conference 1906}
At the third Pan American conference, held at Rio de Janeiro, in 1906, a convention was signed August 23, 1906, to protect patents of invention, drawings and industrial models, trade-marks and literary and artistic property, thus binding in one document patent and copyright protection. This is usually referred to as the third Pan American treaty, but it has not been accepted by the United States, partly because of objections to patent provisions and the combination of copyright provisions with them.
{Sidenote: Rio provisions}
This Rio convention re-adopted (art. 1) the Mexico treaty, with modifications as stated in the convention. These provided for two international bureaus (art. 2) for the centralization of registrations (art. 3), one at Havana for the United States, Mexico, Central American states, Panama, Colombia and Venezuela, Cuba, Haiti and San Domingo, and one at Rio de Janeiro for Brazil, Argentina and the other South American states, both to have (art. 4) identical systems and books, and to exchange monthly authenticated copies of documents, so that the two should practically constitute one bureau. The proper bureau was to receive (art. 5) from each country authenticated copies of its own registrations of patents and copyrights for transmission (art. 6) to the other countries, where they should be given full faith and credit, unless the proper bureau be notified to the contrary within one year. The registration in one country (art. 7) should have the same effect in each other country, as if made in all, and the term of protection was made that provided by the legislation of the country "where the rights originated or have been recognized," or, if no term is specified, then for patents fifteen years, for designs ten years, both subject to renewals, and for literary and artistic copyright life and 25 years. The expenses of the bureau were to be guaranteed (art. 8) by the several countries in the same proportion as for the bureau of American Republics (now called the Pan American Union) at Washington; the two bureaus were placed under the protection of Cuba and Brazil under identical regulations, made by concurrence of the two governments with the approval of the other countries; and an additional registration fee, equivalent to $5, collected in the country of original registration, was to be equally divided for the maintenance of the two bureaus. The bureaus were authorized (art. 9) to (1) collect and publish information, (2) print an official review, (3) to advise the respective governments of defects, (4) to arrange for future international conferences, (5) to make yearly report, (6) to exchange publications with other institutions, and (7) to act as cooperative agents for each of the governments concerned. The convention was to become effective (art. 10) on the establishment of one of the bureaus for such countries as should accede to the new convention, the other countries remaining bound by the former convention; and each of the bureaus was to be established (art. 11) as soon as two thirds of the countries in its own group should ratify the convention, and the first bureau established might act temporarily for the other countries. It was finally provided (art. 12) that Brazil should be the intermediary for exchange of ratifications.
{Sidenote: Ratification}
The Rio convention of 1906 was ratified only by Guatemala (1907 and 1909), Salvador (1907), Nicaragua (1908) and Costa Rica (1908), and by Chile (1910); and it never became effective.
{Sidenote: Buenos Aires conference and convention, 1910}
At the fourth Pan American conference, held at Buenos Aires in 1910,--twenty powers, including all the South American countries except Bolivia, being represented,--the fourth copyright convention was signed August 11, 1910. It undertakes to "acknowledge and protect the rights of literary and artistic property," and includes (art. 2) with dramatic and musical works those of a choregraphic character. It retains (art. 4) the definition of the scope of copyright. The provision as to the indicated author is continued (art. 5) in more precise language. It substitutes for the previous cumbrous method the simple provision (art. 3) "the acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right." It continues (art. 6) the Mexico provisions as to copyright duration. The country of origin is further defined (art. 7) as "that of its first publication in America," and in case of simultaneous publication in several of the signatory countries, then that having the shortest term of protection. It specially provides (art. 8) that a work shall not acquire copyright through subsequent editions. It continues also (art. 9) the provisions for copyright in translations. It provides (art. 11) for the protection of "literary, scientific, or artistic writings, ... published in newspapers or magazines." But other articles may be freely reproduced, on acknowledgment of the source, which, however, is not required for "news and miscellaneous items published merely for general information,"--the provisions as to extracts in journals for public instruction or chrestomathy (art. 12) and those as to public addresses (art. 10) subject, however, to the internal laws of each state, being continued. The provisions as to unlawful reproduction (art. 13) are continued, and seizure of pirated copies (art. 14), police powers (art. 15) and provisions for ratification (art. 16) are the same as in the Mexico convention, except that the ratifications and denouncements are to be communicated to the Argentine government. This treaty, approved by the United States Senate, February 16, 1911, and signed by the President, waits other ratification to become effective.
{Sidenote: Attorney-General's opinion on ratification}
{Sidenote: Relation with importation provisions}
The Mexico convention was signed by the United States delegates ad referendum, and before submitting it to the Senate for ratification, the President obtained through the Secretary of State an opinion from the Department of Justice, as to any reason against its submission for ratification, especially with reference to the act of 1891. Acting Attorney-General Hoyt replied in a confidential report of June 3, 1902, since made public, after quoting the prohibition of importation in section 3 of the act of 1891: "In the convention now in question there is no inhibition against such importations as are prohibited by said section 3, unless it can be said that such convention is 'an international agreement which provides for reciprocity in the granting of copyrights, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement,' as provided in section 13 of the same act. It is a matter of grave doubt whether this convention, made by the United States originally, is such an 'international agreement.' It is therefore quite probable that its ratification would except the authors of the nations signing it from the provisions of said section 3 of the act of March 3, 1891, leaving the authors of other countries still subject to such provisions. Your attention is directed to the fact that an affirmative answer to article 16 of the convention would also except from the provisions of said section 3 all countries that might hereafter adopt said convention. There appears to be no legal impediment to the ratification of this convention, nor would it constitute a breach of faith toward other countries; and in pointing out the probable effect of some of its provisions I do not intend thereby to express or intimate an opinion that it ought not to be ratified." The question of the relation between treaty provisions and domestic legislation especially affects copyright arrangements and has been the subject of discussion and a matter of difficulty in England and other countries as well as in the United States. The Senate did not act finally upon the Mexico convention until 1908, when it was duly ratified, and this precedent opened the way for more prompt ratification of the Buenos Aires convention.
{Sidenote: United States international relations}
The United States, as a party only to the Pan American Union and not a member of the International Copyright Union under the Berne-Berlin conventions, has not secured for its citizens general rights of copyright in other countries, without repetition of formalities, and such rights are secured only in the countries designated by Presidential proclamation and according to the formalities of their domestic legislation. It seems, however, that citizens of the United States may obtain general protection throughout the unionist countries by publishing in a unionist country simultaneously with first publication in the United States, and thus coming under the protective provisions of the Berlin convention. The Mexico convention permits citizens of the United States to obtain copyright in other countries ratifying that convention, by deposit at Washington of extra copies for transmission to countries designated, with certified copy of the registration. When the Buenos Aires convention is ratified by other powers nothing more will then be required than the usual application and deposit at Washington and notice of the reservation of rights, preferably in connection with the copyright notice, of which "all rights reserved for all countries" is the most comprehensive form.
{Sidenote: "Proclaimed" countries}
Under section 8 of the act of 1891, the President "proclaimed" from time to time the existence of reciprocal relations with other countries, which permitted their citizens to obtain copyright in the United States under the act, and American citizens to obtain protection under their respective copyright laws. The question of the status of these countries under the act of 1909 was solved by the proclamation of the President on April 9, 1910, stating that "satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and her possessions, Norway, Portugal, Spain and Switzerland, the law permits ... to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries," and proclaiming "that the citizens or subjects of the aforementioned countries are and since July 1, 1909, have been entitled to all the benefits of the said Act other than the benefits under section 1, (e), thereof, as to which the inquiry is still pending"--the exception being as regards mechanical music. To this list of countries, Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911.
{Sidenote: Mechanical music reciprocity}
Under date of December 8, 1910, the first proclamation with respect to the international protection of mechanical music was made by the President, declaring the existence of reciprocal relations with Germany. Belgium, Luxemburg, and Norway were added by proclamation of June 14, 1911.
It may be repeated, to make the list complete, that by the ratification in 1908 of the Mexico City convention of 1902, Guatemala, Honduras, Nicaragua and Salvador, as well as Costa Rica, have reciprocal copyright relations with the United States, making in all twenty-four countries (including Japan under the treaties excepting translations, and China under the limited provisions of the treaty of 1903) with which the United States has international copyright relations.
XIX
THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA
{Sidenote: Initial endeavor in America, 1837}
Simultaneously with the earliest legislation for international copyright among European states, there was a movement in the same direction in the United States. In the Twenty-fourth Congress, February 2, 1837, Henry Clay presented to the Senate an address of British authors asking for copyright protection in this country. This petition was signed by Thomas Moore and fifty-five others, and was later supplemented by additional signatures and by an American petition to the same effect.
{Sidenote: The British address}
The text of the address is as follows, the reference in paragraph seven being to a letter by Dr. M'Vickar, printed in the New York American, November 19, 1832:
"The humble address and petition of certain authors of Great Britain, to the Senate and House of Representatives of the United States, in Congress assembled, respectfully showeth--
"1. That your petitioners have long been exposed to injury in their reputation and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America.
"2. That, for want of such law, deep and extensive injuries have, of late, been inflicted on the reputation and property of certain of your petitioners; and on the interests of literature and science, which ought to constitute a bond of union and friendship between the United States and Great Britain.
"3. That, from the circumstance of the English language being common to both nations, the works of British authors are extensively read throughout the United States of America, while the profits arising from the sale of their works may be wholly appropriated by American booksellers, not only without the consent of the authors, but even contrary to their express desire--a grievance under which your petitioners have, at present, no redress.
"4. That the works thus appropriated by American booksellers are liable to be mutilated and altered, at the pleasure of the said booksellers, or of any other persons who may have an interest in reducing the price of the works, or in conciliating the supposed principles or prejudice of purchasers in the respective sections of your union: and that, the names of the authors being retained, they may be made responsible for works which they no longer recognize as their own.
"5. That such mutilation and alteration, with the retention of the authors' names, have been of late actually perpetrated by citizens of the United States: under which grievance, your petitioners have no redress.
"6. That certain of your petitioners have recently made an effort in defence of their literary reputation and property, by declaring a respectable firm of English publishers in New York to be the sole authorized possessors and issuers of the works of the said petitioners; and by publishing in certain American newspapers, their authority to this effect.
"7. That the object of the said petitioners has been defeated by the act of certain persons, citizens of the United States, who have unjustly published, for their own advantage, the works sought to be thus protected; under which grievance your petitioners have, at present, no redress.
"8. That American authors are injured by the non-existence of the desired law. While American publishers can provide themselves with works for publication by unjust appropriation, instead of by equitable purchase, they are under no inducement to afford to American authors a fair remuneration for their labours: under which grievance American authors have no redress but in sending over their works to England to be published, an expedient which has become an established practice with some of whom their country has most reason to be proud.
"9. That the American public is injured by the non-existence of the desired law. The American public suffers, not only from the discouragement afforded to native authors, as above stated, but from the uncertainty now existing as to whether the books presented to them as the works of British authors, are the actual and complete productions of the writers whose names they bear.
"10. That your petitioners beg humbly to remind your Honours of the case of Walter Scott, as stated by an esteemed citizen of the United States, that while the works of this author, dear alike to your country and to ours, were read from Maine to Georgia, from the Atlantic to the Mississippi, he received no remuneration from the American public for his labours; that an equitable remuneration might have saved his life, and would, at least, have relieved its closing years from the burden of debts and destructive toils.
"11. That your petitioners, deeply impressed with the conviction that the only firm ground of friendship between nations, is a strict regard to simple justice, earnestly pray that your Honours, the representatives of the United States in Congress assembled, will speedily use, in behalf of the authors of Great Britain, your power 'of securing to the authors the exclusive right to their respective writings.'"
{Sidenote: Henry Clay report, 1837}
The British address was referred to a select committee, whose members were Clay, Webster, Buchanan, Preston and Ewing, which reported favorably a bill for international copyright. The report took high ground in favor of the rights of authors:
"That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius, is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind.... It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situated.... We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.... In principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it."
{Sidenote: A prophecy of world union}
The address of British authors and the Clay report called forth a little volume of "Remarks on literary property" by Philip H. Nicklin, a Philadelphia publisher, printed by his own firm of "law booksellers" in 1838, and dedicated to Henry C. Carey, which, though somewhat caustic in its criticisms of some of the arguments put forward by the British authors, heartily favored international copyright. The volume, in fact, contains a glowing prophecy of what was realized in large measure in the convention of Berne a half century later, the more interesting as coming from an American publisher, who was perhaps first to realize in thought the world-wide possibilities of the movement then in its beginnings. He suggested that Congress should empower the President to appoint commissioners to meet in Europe with similar representatives from other nations "to negociate for the enactment of a uniform law of literary property, and the extension of its benefits to all civilised nations. It should be a new chapter of the Jus Gentium, and should be one law (iisdem verbis) for all the enacting nations, extending over their territories in the same manner as our law of copyright extends over the territories of our twenty-six sovereign states; so that an entry of copyright in the proper office of one nation should protect the author in all the others."
{Sidenote: "One just law"}
"Public opinion has made such progress in the various civilized nations, as would justify a great movement in favour of establishing a universal republic of letters; whose foundation shall be one just law of literary property embracing authors of all nations, and being operative both in peace and war. Besides the great impulse that would be given by such a law, to the improvement of literature and intellectual cultivation, the fellowship of interest thus created among the learned men throughout the world, would in time grow into a bond of national peace. Authors would soon consider themselves as fellow-citizens of a glorious republic, whose boundaries are the great circles of the terraqueous globe; and instead of lending their talents for the purpose of exasperating national prejudice into hostile feeling, to further the views of ambitious politicians, they would exert their best energies to cultivate charity among the numerous branches of the Human family, to rub off those asperities which the faulty legislation of the dark ages has bequeathed to the present generation, and to extend the blessings of christianity to the ends of the earth."
{Sidenote: Clay bills, 1837-42}
The Clay report, presented February 16, 1837, was accompanied by a bill drawn by Clay, extending copyright to British and French authors for works thereafter published, on condition of the issue of an American edition simultaneously with the foreign edition or within one month after deposit of the title in America, but it never came to a final vote, though reintroduced by Clay in successive Congresses December 13, 1837, December 17, 1838, January 6, 1840, and January 6, 1842. In 1840, January 8, the bill was reported back from the Judiciary Committee without recommendation or approval. The bill was also introduced into the House of Representatives by John Robertson, July 7, 1838, and by J. L. Tillinghast, June 6, 1840, but here also there was no action.
{Sidenote: Palmerston invitation, 1838}
An invitation was extended by Lord Palmerston in 1838 for the cooperation of the American government in an international arrangement with Great Britain, but nothing came of it.
{Sidenote: Efforts 1840-48}
Dr. Francis Lieber, a well-known publicist, addressed to Senator Preston, in 1840, a letter "On international copyright," prepared in cooperation with George Palmer Putnam, and issued in pamphlet form by the house of Wiley & Putnam. Charles Dickens's tour in 1841 stimulated interest in the subject, and there were high hopes of some result. In 1843 Mr. Putnam procured the signatures of ninety-seven publishers, printers, and binders to a petition which was presented to Congress, setting forth that the absence of international copyright was "alike injurious to the business of publishing and to the best interests of the people." A counter-memorial from Philadelphia objected that international copyright "would prevent the adaptation of English books to American wants." No result came from these petitions, nor from one presented in 1848 by William Cullen Bryant, John Jay, George P. Putnam, and others.
{Sidenote: Everett treaty, 1853}
In 1852 a petition for international copyright, signed by Washington Irving, James Fenimore Cooper and others, was presented to Congress; and in 1853 Edward Everett, then Secretary of State, negotiated through the American Minister in London, John F. Crampton, a treaty providing simply that authors entitled to copyright in one country should be entitled to it in the other, on the same conditions and for the same term. This treaty was laid before the Senate in a message from President Fillmore, February 18, 1853. The Committee on Foreign Relations of the Senate, through Charles Sumner, reported the Everett treaty favorably, but it was tabled in Committee of the Whole. Five New York publishers addressed a letter to Mr. Everett, supporting a convention, providing the work should be registered in the United States before publication abroad, issued here within thirty days after publication abroad, and wholly manufactured in this country. It was in this year that Henry C. Carey published his famous "Letters on international copyright," in which he held that ideas are the common property of society, and that copyright is therefore indefensible. Several remonstrances were also presented against the treaty from citizens of different states. The next year the amendatory article to the Everett treaty was laid before the Senate in a message from President Pierce of February 23, 1854, but no action resulted.
{Sidenote: Morris bills, 1858-60}
In the Thirty-fifth Congress in 1858, Edward J. Morris, of Pennsylvania, introduced into the House of Representatives a bill on the basis of remanufacture by an American publisher within thirty days of publication abroad, but it does not seem to have been considered, though it was reintroduced by him in 1860.
{Sidenote: International Copyright Association, 1868}
The matter slumbered until 1868--after Dickens's second visit in 1867--when a committee consisting of George P. Putnam, S. Irenaeus Prime, Henry Ivison, James Parton, and Egbert Hazard issued an appeal for "justice to authors and artists," calling a meeting, which was held under the presidency of William Cullen Bryant, April 9, 1868. An International Copyright Association was then organized, with Mr. Bryant as president, George William Curtis as vice-president and E. C. Stedman as secretary, whose primary object was "to promote the enactment of a just and suitable international copyright law for the benefit of authors and artists in all parts of the world." A memorial to Congress, asking early attention for a bill "to secure in all parts of the world the right of authors," but making no recommendations in detail, was signed by one hundred and fifty-three persons, including one hundred and one authors and nineteen publishers.
{Sidenote: Baldwin bill and report, 1868}
In the Fortieth Congress, in accordance with instructions to the Committee on the Library, moved by Samuel M. Arnell of Tennessee, January 16, 1868, to report on international copyright "and the best means for the encouragement and advancement of cheap literature and the better protection of authors,"--a bill was introduced in the House, February 21, by J. D. Baldwin of Massachusetts, which provided for copyright on foreign books wholly manufactured here and published by an American citizen. The Committee's report said: "We are fully persuaded that it is not only expedient, but in a high degree important to the United States to establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of national honor and justice in which we should find that justice is the wisest policy for nations and brings the richest reward." The bill was, however, recommitted and never more heard of.
{Sidenote: Clarendon treaty, 1870}
In 1870, what has since been known as the Clarendon treaty was proposed to the American government by Lord Clarendon on behalf of the British government, through Sir Edward Thornton, then British Minister at Washington. This was modeled on the treaties existing between Great Britain and other European nations, and provided that an author of either country should have full protection in the other country to the extent of its domestic law, on the sole condition of registration and deposit in the other country within three months after first publication in the country in which the work first appeared, the convention to continue in force for five years, and thence from year to year, unless twelve months' notice of termination were given. This was later criticised in Harper & Brothers' letter of November 25, 1878, as a scheme "more in the interest of British publishers than either of British or American authors," on the ground that British publishers would secure American with British copyright, and give no opportunity to American houses to issue works of English authors.
{Sidenote: Cox bill and resolution, 1871}
The next year the following resolution, offered by S. S. Cox, was passed by the House, December 18, 1871:
"Resolved, That the Committee on the Library be directed to consider the question of an international copyright, and to report to this House what, in their judgment, would be the wisest plan, by treaty or law, to secure the property of authors in their works, without injury to other rights and interests; and if in their opinion Congressional legislation is the best, that they report a bill for that purpose."
Mr. Cox had himself presented in the Forty-second Congress, December 6, 1871, a bill for international copyright on a basis of reciprocity, providing foreign works should be wholly manufactured in the United States and published by American citizens, and be registered, deposited and arrangements for such publication made within three months of first publication in the foreign country. This bill was supported in Committee of the Whole by speeches from Archer Stevenson, Jr., of Maryland, and J. B. Storm, of Pennsylvania, but opposed by William D. Kelley, of Pennsylvania.
{Sidenote: The Appleton proposal, 1872}
Mr. Cox's resolution was acted upon in 1872 by the new Library Committee, which invited the cooperation of authors, publishers, and others interested in framing a bill. At meetings of New York publishers, January 23 and February 6, 1872, a bill prepared by W. H. Appleton and accepted by A. D. F. Randolph, Isaac E. Sheldon, and D. Van Nostrand, of a committee, was approved by a majority vote. It provided for copyright on foreign books issued under contract with an American publisher, "wholly the product of the mechanical industry of the United States," and registered within one month and published within three months from the foreign issue, stipulating that if a work were out of print for three months the copyright should lapse. This was in line with a letter printed by W. H. Appleton in the London Times, October, 1871, denying that there was any disposition in the United States to withhold justice from English authors, but objecting to any "kind of legal saddle for the English publisher to ride his author into the American book-market"; in response to which Herbert Spencer, John Stuart Mill, Froude, Carlyle, and others had signed a memorial to Lord Granville expressing a willingness to accept a copyright on the condition of confining American copyright to American assigns of English authors, and excluding English publishers. Mr. Appleton's bill was opposed in a minority report by Edward Seymour, of the Scribner house, on the ground that it was "in no sense an international copyright law, but simply an act to protect American publishers"; that the desired "protection" could be evaded by English houses through an American partner; and that the act was objectionable in prohibiting stereos, in failing to provide for cyclopaedias, and in enabling an American publisher to exclude revised editions.
{Sidenote: Philadelphia protest, 1872}
A meeting of Philadelphia publishers, January 27, 1872, opposed international copyright altogether, in a memorial declaring that "thought, when given to the world, is, as light, free to all"; that copyright is a matter of municipal (domestic) law; that any foreigner could get American copyright by becoming an American citizen; and that "the good of the whole people and the safety of republican institutions" would be contravened by putting into the hands of foreign authors and "the great capitalists on the Atlantic seaboard" the power to make books high.
{Sidenote: The Bristed proposal, 1872}
The Executive Committee of the Copyright Association met in New York, February 2, 1872, and put forward Charles Astor Bristed's bill securing, after two years from date of passage, to citizens of other countries granting reciprocity, all the rights of American citizens.
{Sidenote: Kelley resolution, 1872}
Probably as an outcome of the Philadelphia meeting, William D. Kelley, of Pennsylvania, introduced into the House, February 12, 1872, and caused to be referred to the Library Committee, the following resolution: "Whereas it is expedient to facilitate the reproduction here of foreign works of a higher character than that of those now generally reprinted in this country; and whereas it is in like manner desirable to facilitate the reproduction abroad of the works of our own authors; and whereas the grant of monopoly privileges, in case of reproduction here or elsewhere, must tend greatly to increase the cost of books, to limit their circulation, and to increase the already existing obstacles to the dissemination of knowledge: Therefore, Resolved, That the Joint Committee on the Library be, and it hereby is, instructed to inquire into the practicability of arrangements by means of which such reproduction, both here and abroad, may be facilitated, freed from the great disadvantages that must inevitably result from the grant of monopoly privileges such as are now claimed in behalf of foreign authors and domestic publishers."
{Sidenote: Congressional hearings}
{Sidenote: Beck-Sherman bill, 1872}
The Library Committee gave several hearings on the subject, February 12 and later, and among other contributions to the discussion received a letter from Harper & Brothers taking ground that "any measure of international copyright was objectionable because it would add to the price of books, and thus interfere with the education of the people"; and a suggestion from John P. Morton, of Louisville, to permit general republication on payment of a ten per cent royalty to the foreign author. The same suggestion, providing for five per cent royalty, as brought forward by John Elderkin, was introduced, in a bill, February 21, 1872, by James B. Beck of Kentucky, in the House, and John Sherman of Ohio, in the Senate.
{Sidenote: Morrill report, 1873}
The Committee, in despair over these conflicting opinions, presented the celebrated Morrill report of February 7, 1873, Senator Lot M. Morrill being the chairman, including a tabular comparison of the prices of American and English books. It said that "there was no unanimity of opinion among those interested in the measure," and concluded:
"In view of the whole case, your committee are satisfied that no form of international copyright can fairly be urged upon Congress upon reasons of general equity, or of constitutional law; that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors as a class, and would be not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hindrance to the diffusion of knowledge among the people, and to the cause of universal education; that no plan for the protection of foreign authors has yet been devised which can unite the support of all or nearly all who profess to be favorable to the general object in view; and that, in the opinion of your committee, any project for an international copyright will be found upon mature deliberation to be inexpedient."
{Sidenote: Banning bill, 1874}
This was decidedly a damper to the cause, and the movement lapsed for some years, a bill submitted to the House on February 9, 1874, by Henry B. Banning of Ohio, extending to authors the protection given to inventors, on a basis of international reciprocity, attracting meanwhile little attention.
{Sidenote: The Harper proposal and draft, 1878}
The question rested until 1878, when, under date of November 25, Harper & Brothers addressed a letter to William M. Evarts, Secretary of State, suggesting that previous failures were due "to the fact that all such propositions have originated from one side only, and without prior joint consultation and intelligent discussion," reiterating "that there was no disinclination on the part of American publishers to pay British authors the same as they do American authors," and that "American publishers simply wished to be assured that they should have the privilege of printing and publishing the books of British authors"; indicating "the likelihood of the acceptance by the United States of a treaty which should recognize the interests of all parties"; and proposing a conference or commission of eighteen Americans and Englishmen--three authors, three publishers and three publicists to be appointed by each side, by the American Secretary of State and the British Secretary for Foreign Affairs--which should consider and present the details of a treaty.
{Sidenote: A suggested basis}
They also presented, as a suggested basis of action, what came to be known as the "Harper draft," a modification of the Clarendon treaty, providing that there should be registration in both countries before publication in the country of origin; that international registration should be in the name of the author: if a citizen of the United States, at Stationers' Hall, London; if a subject of her Majesty, at the Library of Congress, Washington; and that "the author of any work of literature manufactured and published in the one country shall not be entitled to copyright in the other country unless such work shall be also manufactured and published therein, by a subject or citizen thereof, within three months after its original publication in the country of the author or proprietor; but this proviso shall not apply to paintings, engravings, sculptures, or other works of art; and the word 'manufacture' shall not be held to prohibit printing in one country from stereotype plates prepared in the other and imported for this purpose."
{Sidenote: Approval of the Harper draft}
This draft was approved by fifty-two leading American authors, including Longfellow, Holmes, Emerson, and Whittier, in a memorial dated August, 1880. The American members of the International Copyright Committee, appointed by the Association for the Reform and Codification of the Law of Nations, John Jay, James Grant Wilson and Nathan Appleton, also memorialized the Secretary of State, under date of February 11, 1880, in favor of this general plan, specifying "within from one to three months" as the manufacturing limit. It was also approved by the great body of American publishers, although the Putnam, Scribner, Holt and Roberts firms in signing took exception to certain of the restrictions, especially to the time limit of three months. George Haven Putnam set forth the views of his house in a paper before the New York Free Trade Club, January 29, 1879, afterward printed as Economic Monograph no. XV., "International copyright considered in some of its relations to ethics and political economy." In this he suggested simultaneous registration in both countries, republication within six months, and restriction of copyright protection here for the first ten years of the term to books printed and bound in the United States and published by an American citizen.
An interesting series of replies from American authors, publishers, etc., as to methods for international copyright, to queries from the Publishers' Weekly will be found in v. 15, commencing with no. 7, February 15, 1879.
{Sidenote: Granville negotiations, 1880}
The "Harper draft" was submitted in September, 1880, by James Russell Lowell, then American Minister at London, to Earl Granville, who replied, March, 1881, that the British government favored such a treaty, but considered an extension of the republication term to six months essential, and to twelve months much more equitable. In the same month the International Literary Association adopted a report favoring an agreement, but protesting against the manufacturing clause and time limit. This position was also taken at several meetings of London publishers, and F. R. Daldy was sent to America to further the English view. Sir Edward Thornton, British Minister at Washington, was instructed to proceed to the consideration of the treaty, provided the term for reprint could be extended, and both President Garfield and Secretary Blaine were understood to favor the completion of a treaty. With the death of Garfield the matter ended for the time.
{Sidenote: Robinson and Collins bills, 1882-83}
A bill dealing with the whole question of copyright, domestic and foreign, was introduced March 27, 1882, by W. E. Robinson of New York, and December 10, 1883, another copyright bill was introduced by P. A. Collins of Massachusetts, but neither emerged from the Committee on Patents, to which they were referred.
{Sidenote: American Copyright League}
{Sidenote: Dorsheimer bill, 1884}
{Sidenote: Criticisms and changes}
The question came to the front again in 1884. A new copyright association, the American Copyright League, had been organized in 1883, chiefly through the efforts of George P. Lathrop, Edward Eggleston, and R. W. Gilder, and there was a general revival of interest in international copyright. On January 9, 1884, William Dorsheimer, of New York, introduced into the House his bill for international copyright, which provided for the extension of copyright to citizens of countries granting reciprocal privileges, so soon as the President should issue his proclamation accepting such reciprocity, for twenty-five years, but terminable earlier on the death of the author. This bill was the occasion of a general discussion. The Copyright League addressed a letter to Mr. Dorsheimer urging the modification of the above limitations, and it was particularly pointed out that the confining of copyright to an author's lifetime would render literary property most insecure. The League also addressed a letter to the Secretary of State, urging the completion of a treaty with Great Britain, to which F. T. Frelinghuysen replied, January 25, 1884, that while the negotiation as to the Harper draft had not been interrupted, he thought the object might be attained by a simple amendment to our present copyright law, based on reciprocity, after which a simple convention would suffice to put the amendment in force. Mr. Dorsheimer's bill was referred to the House Committee on the Judiciary, and reported favorably, with amendments extending the copyright term to twenty-eight years, without regard to the death of the author, with renewal for fourteen years. The amended bill also provided that such copyright should cease in case reciprocity was withdrawn by the other country; that there should be no copyright in works already published, and that the provisions of the domestic copyright law should, as far as applicable, extend also to foreign copyrights. On the 19th of February Mr. Dorsheimer moved to make his bill the special order for February 27, but his motion failed of the necessary two-thirds vote, 155 voting aye, 98 nay and 55 not voting. There was considerable opposition on the part of those who insisted upon the remanufacture of foreign books in this country, and Mr. Dorsheimer privately expressed himself as willing to accept, although not willing to favor, amendments in that direction if they were necessary to insure the passage of the bill.
{Sidenote: American publishers' sentiment}
A circular letter of inquiry sent out by the Publishers' Weekly early in 1884, showed a general desire on the part of American publishers in favor of international copyright. The replies were summarized in v. 25 from March, 1884. Of fifty-five leading publishers who answered, fifty-two favored and only three opposed international copyright. Out of these, twenty-eight advocated international copyright pure and simple; fourteen favored a manufacturing clause; the others did not reply on this point. Congress adjourned, however, without taking definite action.
{Sidenote: Hawley bill, 1885}
President Arthur, in his message of December, 1884, put himself on record as favoring copyright on the basis of reciprocity. A bill brought forward in the Publishers' Weekly of December 6, 1884, was intended by a form admitting of easy amendment, to facilitate the passage of some kind of bill extending the principle of copyright to citizens of foreign countries under limitations set forth in subsequent sections of the bill. The Dorsheimer bill was reintroduced by W. E. English of Indiana, January 5, 1885, and on January 6 Senator Hawley introduced a general bill into the Senate. This latter, which covered all copyright articles, was understood to be favored by the Copyright League; it extended copyright to citizens of foreign states, on a basis of reciprocity, for books or other works published after the passage of the bill, by repealing those parts of the Revised Statutes confining copyright to "citizens of the United States or residents therein." No action was taken, however, on either the Dorsheimer or the Hawley bill.
{Sidenote: Chace bill, 1886}
In his first annual message, 1885, President Cleveland referred favorably to the negotiations at Berne, and with the opening of the Forty-ninth Congress two bills were introduced into the Senate, that of Senator Hawley, December 7, 1885, being essentially his bill of the previous year, and that of Senator Chace, January 21, 1886, a new bill, based on a plan put forward some years previously by Henry C. Lea, and now supported by the Typographical Unions and other labor organizations. The Hawley bill was on a simple basis of reciprocity; the Chace bill required registry within fifteen days and deposit of the best American edition within six months from publication abroad, at a fee of $1, to be used in printing a list of copyright books for customs use, the prohibition of importations and the voiding of copyright when the American manufacturer abandons publication. The American Copyright League, of which James Russell Lowell was president and Edmund Clarence Stedman vice-president, favored the Hawley bill, which was practically a modification of the Dorsheimer bill, and it was introduced into the House by John Randolph Tucker of Virginia, January 6, 1886.
{Sidenote: Congressional hearings, 1886}
Hearings were held for four days by the Senate Committee on Patents on January 28, 29, February 12, and March 11, 1886, at which Mr. Lowell, Mr. Stedman, "Mark Twain" and others appeared on behalf of international copyright. A memorial signed by 144 American authors, was presented in the following terms: "The undersigned American citizens who earn their living in whole or in part by their pen, and who are put at disadvantage in their own country by the publication of foreign books without payment to the author, so that American books are undersold in the American market, to the detriment of American literature, urge the passage by Congress of an International Copyright Law, which will protect the rights of authors, and will enable American writers to ask from foreign nations the justice we shall then no longer deny on our own part." The memorial was presented to Congress in facsimile of the signatures of the authors and was reproduced in that form in the Bowker-Solberg volume on copyright of 1886.
{Sidenote: Mr. Lowell's epigram}
It was at this time that Mr. Lowell wrote his famous quatrain on "International copyright," which presented effectively the fundamental argument:
"In vain we call old notions fudge, And bend our conscience to our dealing; The Ten Commandments will not budge, And stealing will continue stealing."
On May 21, 1886, the Committee on Patents presented a report to the Senate, favoring the Chace bill, but no action resulted.
{Sidenote: President Cleveland's second message, 1886}
In President Cleveland's annual message December 6, 1886, at the opening of the second session, he called the attention of Congress to the fact that "the drift of sentiment in civilized communities toward full recognition of the rights of property in the creation of the human intellect has brought about the adoption by many important nations of an International Copyright Convention, which was signed at Berne 18th of September, 1885.... I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded." But the Congress adjourned without heeding them.
{Sidenote: Campaign of 1887}
Senator Chace reintroduced his bill into the Fiftieth Congress, December 12, 1887. In the same month there was organized the American Publishers' Copyright League, with William H. Appleton as president and George Haven Putnam as secretary, and from that time forward the authors' and publishers' leagues acted in close cooperation. Copyright associations were formed in Boston, Chicago and elsewhere, to influence Congress and the public; Henry van Dyke, especially by his address on "The national sin of piracy," and other clergymen helped to emphasize the moral issue, and authors' readings held in New York, Washington and elsewhere brought the question widely to public notice and helped to raise funds for the campaign. During this period, R. U. Johnson, associate editor of the Century magazine, who had been treasurer of the Authors' League, became its secretary, and throughout the campaigns ending in 1891 and 1909, had the working oar. The Typographical Unions, represented by John Louis Kennedy and James Welsh, gave support to the bill conditioned on the acceptance of the type-setting clause, and the opposition to it came chiefly from Gardiner G. Hubbard and certain legal representatives of unnamed clients.
{Sidenote: Senate passage of Chace bill, 1888}
{Sidenote: Bryce bill, 1888}
The Chace bill, modified to require printing from type set or plates made within the United States and to prohibit the importation of foreign-made editions, passed the Senate, Senators Chace, Hawley, Hoar and O. H. Platt of Connecticut being foremost in its support, by vote of 35 to 10, May 9, 1888. It had been introduced into the House by W. C. P. Breckinridge of Kentucky, March 19, and favorably reported by the Judiciary Committee, April 21, 1888. A bill which had been introduced by Lloyd S. Bryce of New York, January 16, and referred to the Committee on Patents, was favorably reported by that Committee with amendment September 13, 1888. But the Mills tariff bill and other circumstances blocked the way, and the Fiftieth Congress adjourned without action by the House.
{Sidenote: President Harrison's message, 1889}
{Sidenote: Simonds bill, 1890}
{Sidenote: Simonds report, 1890}
President Harrison, in his first annual message, December 3, 1889, to the Fifty-first Congress, said, "The subject of an international copyright has been frequently commended to the attention of Congress by my predecessors. The enactment of such a law would be eminently wise and just." Senator Chace having resigned his seat, Senator O. H. Platt became chairman of the Committee on Patents and the chief advocate of the Chace bill, which he reintroduced December 4, 1889. In the House it was again introduced by Mr. Breckinridge on January 6, 1890, and referred to the Judiciary Committee, which made a favorable report, prepared by G. E. Adams of Illinois February 15, 1890. It was also introduced on the same day by Benjamin Butterworth of Ohio, as a Republican, and referred to the Committee on Patents, of which he was chairman. A third bill was also introduced on January 6, by W. E. Simonds of Connecticut, amending the patent and trade-mark acts with an incidental reference to copyright. Mr. Simonds presented a favorable report from the Committee on Patents February 18, but no action was taken on this report. The main bill was, however, reported from the Judiciary Committee by Mr. Adams, and on motion of William McKinley of Ohio, was made the special order for May 2, when it was debated, with amendments introduced by Mr. Adams and defeated on the third reading by a vote of 99 to 125. The bill was reintroduced, however, by Mr. Simonds with the inclusion of a reciprocity clause, May 16, 1890, and on June 10 the Committee on Patents through Mr. Simonds presented a strong report with a substitute bill, essentially the same. The Simonds report set forth that aside from "practical reasons" for the bill, "it is a sufficient reason that an author has a natural exclusive right to the thing having a value in exchange which he produced by the labor of his brain and hand. No one denies and everyone admits that all men have certain natural rights which exist independently of all written statutes." And in respect to international protection, the report said "the United States of America must give in its adhesion to international copyright or stand as the literary Ishmael of the civilized world." The report is printed in full and a detailed account of the campaign for this bill is given in G. H. Putnam's "The question of copyright." On December 3, 1890, the bill was again voted upon by the House and received a vote of 139 to 95 on its final passage.
{Sidenote: Senate debate, 1891}
In the Senate there was a notable debate lasting six days, February 9, 12-14, 17-18, 1891, in which Senators Sherman and Carlisle championed an amendment permitting the importation of authorized foreign editions which was opposed by the Typographical Unions as violating the manufacturing clause, and by authors and publishers as a restriction on authors' rights of control. Senator Frye on February 9, 1891, advocated an amendment extending the manufacturing clause beyond books to include maps, charts, dramatic or musical compositions, engravings, cuts, prints, photographs, chromos and lithographs. With these and other amendments, the bill passed the Senate 36 to 14, February 18, 1891. On February 28, 1891, the House voted 128 to 64 non-concurrence in the Senate amendments, and a Conference Committee was appointed.
{Sidenote: Passage of act of March 4, 1891}
This first Conference Committee, reporting on March 2, 1891, disagreed on the Sherman amendment, and accepted the other Senate amendments; the report was accepted by the House, 139 to 90, on March 2, 1891. The Senate, on March 3, refused by a vote of 33 to 28 to recede from the Sherman amendment, and a second Conference Committee was appointed. This second Conference Committee modified the Sherman amendment, and after an all-night session the copyright bill was passed, 127 to 77, by the House, March 3, and was also passed, 27 to 18, by the Senate at half past two in the morning, March 4, 1891.
The bill as passed was in the form of amendments to the Revised Statutes, omitting the limitation to citizens or residents of the United States, confining copyright, in the case of a book, photograph, chromo or lithograph, to works of which the deposit copies should be "printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone, made within the limits of the United States or from transfers made therefrom," and extending copyright to citizens of a foreign country only when such country protects American citizens "on substantially the same basis as its own citizens," or is a party to international arrangements, as determined by proclamation of the President.
{Sidenote: Approval by President Harrison}
The signature of President Harrison was promptly affixed before the close of the legislative day, and the United States at last, though in a restricted form, accepted international copyright after an exciting and dramatic contest, which began more than half a century before. The bill became effective July 1, 1891.
{Sidenote: Review of the publishing situation}
There had been a continuous growth in the United States, though displayed somewhat intermittently, of an active sentiment in favor of international copyright. For some years the question was less insistent, from the practical point of view, because of what was called "the courtesy of the trade," by which a publisher who was the first to reprint an English work was not disturbed by rival editions of that and of succeeding works by the same author. Under this custom, the leading American publishers voluntarily made payments to foreign authors, in many cases the same ten per cent paid to American authors, and reaching in one case of "outright" purchase of "advance sheets" $5000, though there was no protection of law for the purchase. American and English works then competed on much the same terms. In 1876 the cheap "quarto libraries" were started, reprinting an entire English novel, though on poor paper and often in dangerously poor type, for 10, 15, or 20 cents. They presently obtained the advantage, by regular issue (one "library" at one time issuing a book daily, others weekly), of the low postal rates for periodicals, of two cents a pound, and thus obtained a further advantage over books by American authors. These quartos gradually gave way to the "pocket edition," in more convenient shape, but not always in better print, at 20 or 25 cents. The sales of corresponding American books had meanwhile definitely fallen.
{Sidenote: Lack of unified policy}
{Sidenote: Compromise of 1891}
The history of the movements for international copyright in America shows that there had been no continuous and well-defined policy on the part of the government authorities, or of publishers, or of authors. While authors almost unanimously, and publishers generally, favored international copyright, the division lines as to method were not between authors and publishers, but between some authors and other authors, and between some publishers and other publishers. There were those, in both classes, who objected to any bill which did not acknowledge to the full the inherent rights of authors, by extending the provisions of domestic copyright to any author of any country, without regard to other circumstances. There were others, at the other extreme, who opposed international copyright unless it was restricted to books manufactured in this country, issued simultaneously with their publication abroad, and of which the importation of other than the American copies was absolutely prohibited. The act of 1891 was finally passed with the assent of the advocates of authors' rights who were willing to waive the abstract principle in favor of any moderate measure which should be at least a first step of recognition, and which might justify by its results, even to the opponents of international copyright, further steps of future progress.
{Sidenote: Need of general revision}
While the act of 1891 was unsatisfactory to the friends of copyright, who desired rather that the United States might grant unrestricted international copyright and become a signatory power in the convention of Berne, it was thought fair and right not to attempt broader legislation for some years. Copyright legislation had become, however, confused and uncertain in the multiplicity of statutes, and the need of revision was emphasized in annual and special reports by Thorvald Solberg, an expert in copyright and skilled bibliographer, who had been appointed Register of Copyrights on the creation of that office in 1897 with the approval of the Librarian of Congress, Herbert Putnam, who had been appointed in 1899. In 1903 the Register of Copyrights presented a special report on copyright legislation which was made part of the report of the Librarian of Congress for 1903, and accompanied by a list of all copyright statutes by the original states and by the United States, the text of the revised statutes with notations of later provisions and a list of foreign copyright laws in force, which three documents were also published as separate pamphlets.
{Sidenote: Ad interim copyright act, 1905}
In 1905, March 3, an act was passed granting ad interim protection for one year to works in a foreign language published in a foreign country, pending manufacture in America within one year of the original work or a translation thereof. This protection was conditioned on the deposit within thirty days from publication in a foreign country of a copy of the foreign edition bearing copyright notice and a reservation in the following form: "Published____, 19__. Privilege of copyright in the United States reserved under the Act approved March 3, 1905, by ____,"--which was also to be printed on all copies of the foreign work sold or distributed in the United States.
{Sidenote: Copyright conferences, 1905-06}
On January 27, 1905, Senator Kittredge announced (in Senate Report 3380) that the Committee on Patents purposed to "attempt a codification of the copyright laws at the next session of the Congress" and in a letter to the Librarian of Congress suggested that he call a conference of the several classes interested in such codification. Accordingly on April 10, the Librarian of Congress announced such a conference, of which sessions were held at the City Club in New York, May 31 to June 2, and November 1 to 4, 1905, and in the Library of Congress, Washington, March 13 to 16, 1906. At these conferences, organizations representing authors, dramatic and musical as well as literary, artists, publishers, printers, lithographers, librarians, the legal profession and the public, participated through delegates, and discussed first a basic memorandum presented by the American (Authors) Copyright League and thereafter successive drafts of a copyright measure prepared by the Register of Copyrights. As a result of these discussions, presided over by Librarian Putnam, the final draft was prepared under the immediate direction of the Librarian of Congress, which became the basis of the bill "to amend and consolidate the acts respecting copyright" introduced into the Senate by Senator Kittredge (Senate bill 6380) and into the House by Chairman Frank D. Currier (H. R. bill 19853), May 31, 1906.
{Sidenote: "Copyright in Congress, 1789-1904"}
In connection with these conferences, a number of valuable documents were prepared by Register Solberg and published through the Copyright Office, among them a chronological record of "Copyright in Congress, 1789-1904," with bibliography, summarizing all Congressional proceedings in relation to copyright through the second session of the Fifty-eighth Congress.
{Sidenote: President Roosevelt's message, 1905}
Meantime President Roosevelt, in his annual message of December 5, 1905, to the Fifty-ninth Congress, had made strong recommendations in favor of copyright reform: "Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by further amendment seems impracticable. A complete revision of them is essential. Such a revision, to meet modern conditions, has been found necessary in Germany, Austria, Sweden and other foreign countries, and bills embodying it are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon the Congress. The inconveniences of the present conditions being so great, an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary; it has added from its own experience and investigations, and it has drafted a bill which embodies such of these changes and additions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration."
{Sidenote: Congressional hearings, 1906-08}
It was arranged that the two Committees on Patents of the Senate and House should hold joint sessions for public hearings on the copyright bill, and these hearings were held in the Senate reading room in the Library of Congress, the first June 6 to 9, 1906, the second December 7 to 11, 1906, the third March 26 to 28, 1908, of each of which full stenographic reports were printed for the Committees. At the first hearing the discussions were largely on the general principles of copyright and their special application to the right of musical composers to control mechanical reproduction of their works. Amendments proposed at this hearing were printed by the Copyright Office in two parts, and a third or supplementary part gave the comment of the Bar Associations' Committees. Register Solberg also printed as preliminary to the second hearing the copyright bill compared with copyright statutes then in force, and earlier United States enactments.
{Sidenote: Kittredge-Currier reports, 1907}
In 1907, at the second session of the Fifty-ninth Congress, the copyright measure was introduced by Senator Kittredge January 29, 1907 (Senate bill 8190), accompanied later by the majority report, February 5, 1907 (Senate report 6187), and a minority report, February 7, 1907 (Senate report 6187; part 2); and by Chairman Currier January 29, 1907 (H. R. bill 25133), accompanied later by the majority report, January 30, 1907 (H. R. report 7083), and by a minority report, March 2, 1907 (H. R. report 7083, part 2). No action was taken at this session.
{Sidenote: Smoot-Currier, Kittredge-Barchfeld bills, 1907-08}
At the first session of the Sixtieth Congress, Senator Smoot, who had become Chairman of the Patents Committee on the retirement from it of Senator Kittredge, introduced a majority bill December 16, 1907 (Senate bill 2499), and Senator Kittredge a minority bill December 18, 1907 (Senate bill 2900); and in the House, Chairman Currier introduced the majority bill December 2, 1907 (H. R. bill 243), and A. J. Barchfeld the minority bill January 6, 1908 (H. R. bill 11794). The Smoot-Currier bills, practically identical, were less favorable to authors, particularly in respect to mechanical reproductions of music, than the Kittredge-Barchfeld bills; and in a pamphlet "The copyright bills in comparison and compromise," prepared by R. R. Bowker in behalf of the American (Authors) Copyright League in March, 1908, the features of the several measures were compared and the views of the Copyright League set forth in a combined measure, with annotations. The "canned music" question, indeed, absorbed most of the time at the third hearing, in the stenographic report of which a combined index to the several hearings was printed.
{Sidenote: Washburn, Sulzer, McCall, Currier bills, 1908}
After the hearings, other bills were introduced into the first session of the Sixtieth Congress by C. G. Washburn May 4, 1908 (H. R. bill 21592), more fully representing authors' views; by Wm. Sulzer May 12, 1908 (H. R. bills 21984, 22071), embodying views of dramatic authors; by S. W. McCall May 12, 1908 (H. R. bill 22098), embodying an amendment to the manufacturing clause as phrased by the American (Authors) Copyright League, excepting from the manufacturing provision "the original text of a foreign work in a language other than English," and by Chairman Currier May 12, 1908 (H. R. bill 22183). But again no action was taken at this session.
{Sidenote: Fourth Congressional hearing, 1909}
At the short (second) session of the Sixtieth Congress the copyright bills were reintroduced in the House by Mr. Barchfeld December 19, 1908 (H. R. bill 24782), by Mr. Sulzer January 5, 1909 (H. R. bill 25162), by Mr. Washburn January 15, 1909 (H. R. bill 26282). On January 20, 1909, a fourth public hearing, specifically on "common law rights as applied to copyright," was given by the Copyright Subcommittee of the House Committee on Patents, to which had been referred the preparation of a final draft, which hearing was reported with the inclusion of a communication of Arthur Steuart, Esq., Chairman of the Copyright Committee of the American Bar Association, giving a careful analysis of the several common law rights possible as to copyright property. After this hearing there were further reintroductions of copyright bills by Mr. Washburn January 28, 1909 (H. R. bill 27310), by Chairman Currier February 15, 1909 (H. R. bill 28192), and in the Senate by Senator Smoot February 22, 1909 (Senate bill 9440).
{Sidenote: Passage of act of March 4, 1909}
The Currier bill was referred to the Committee of the Whole February 22, when a report (H. R. report 2222) was presented. On February 26, amendments were agreed to by the House Committee on Patents; on March 2 the bill had a further reading, and on March 3 was briefly discussed and passed by the House. Senator Smoot had reported to the Senate March 1, 1909, with a report from the Committee (Senate report 1108), and on March 3 the bill as passed by the House was brought before the Senate, briefly discussed, and passed. The exact votes were not recorded.
{Sidenote: Approval by President Roosevelt}
It had scarcely been hoped at the beginning of 1909 by the friends of copyright that the act could be passed during the short session, but the energy of Chairman Currier, complemented by Senator Smoot in the Senate, carried the bills through, and on March 4, the last day of the administration of President Roosevelt, himself an author of distinction and member of the Authors Club, he had the satisfaction of signing, as one of his last acts, a copyright bill completely codifying the law of copyright and greatly broadening international copyright. The copyright code, as in force July 1, 1909, is printed with an index and with the regulations adopted by the U. S. Supreme Court, as Copyright Office Bulletin 14.
{Sidenote: Code of 1909}
{Sidenote: Hopes of future progress}
The code of 1909 made the manufacturing clause more drastic, though freeing photographs from its provisions, by requiring in the case of books, periodicals, lithographs and photo-engravings that they should be completely manufactured within the United States, including printing and binding as well as type setting, with requirement of affidavit from printer or publisher in the case of books; but made on the other hand a further approach to complete international copyright in freeing from the manufacturing clause "the original text of a book of foreign origin in a language or languages other than English," thus relieving a difficult situation which threatened retaliation and the rupture of copyright relations by Germany and other countries, and in extending protection to mechanical music reproductions on a reciprocal basis. The hopes of the friends of copyright will not, however, be fully realized until the manufacturing clause, with the affidavit provision, is repealed, and the United States enabled by Congress to join the family of civilized nations as a signatory power in the Berlin convention.
XX
COPYRIGHT THROUGHOUT THE BRITISH EMPIRE
{Sidenote: English and American systems}
Copyright in America has been so much modeled on English statutes, decisions and precedents, that the previous chapters have covered most of the points of copyright law in the United Kingdom. There are two essential points of difference, however, between the English and American systems. British copyright has depended essentially upon first publication, not upon citizenship; and registration and deposit, which are here a sine qua non, have there been necessary only (except in the case of works of art) previous to, and as a basis for, an infringement suit.
{Sidenote: First publication and residence}
A book first published in the United Kingdom (England, Scotland, Wales, and Ireland) has been ipso facto copyright, under the act of 1842, throughout British dominions; and this protection was definitely extended, by the act of 1886, to a work first published elsewhere in the British dominions. This held whether the author were a natural-born or naturalized British subject, wherever resident; or a person who was at the time of publication on British soil, colonies included, and so "temporarily a subject of the Crown--bound by, subject to, and entitled to the benefit of the laws," even if he made a journey for this express purpose; or, probably but not certainly, an alien friend not resident in the United Kingdom nor in a country with which there was copyright reciprocity. Under the statute of Anne, it was decided by the Law Lords, in the case of Jefferys v. Boosey (overruling Boosey v. Jefferys), that a person not a British subject or resident was not entitled to copyright because of first publication in England, but the statute of 1842 was construed to alter this. In the ruling case under the last-named statute, Routledge v. Low, in 1868, Lords Cairns and Westbury laid down explicitly that first publication was the single necessity, and that copyright was not strengthened by residence; though Lord Cranworth objected and Lord Chelmsford doubted whether this was good law. It was because of this doubt that American authors had been accustomed to make a day's stay in Montreal on the date of English publication of their books. This decision was accepted by the law officers of the Crown and became in 1891 the basis for the reciprocal relations proclaimed by the President of the United States.
{Sidenote: Variations in copyright terms}
The copyright term in Great Britain has differed for the several subjects of copyright, under the divers acts as stated in previous chapters, the general term being for life and seven years or for forty-two years, whichever the longer. Registration at Stationers' Hall has been requisite only (except in the case of works of art) as preliminary to suit, and infringement previous to registration was punishable. Deposit of one copy in the British Museum has been required within a stated time from publication, but only on penalty of fine and not forfeiture of copyright, and the four university libraries might demand copies. Under the international copyright acts, registration and deposit at Stationers' Hall for transmission to the British Museum was requisite for foreign works; but this was made unnecessary by the adhesion of Great Britain to the International Copyright Union.
{Sidenote: The new British code}
The Copyright Act, 1911, as amended by the Lords, which became law (1 & 2 Geo. v. c. 46) on Crown approval December 16, 1911, provides a codification for the British Empire as comprehensive as the American code. The act covers as Part I, Imperial copyright, Part II, International copyright, Part III, Supplemental provisions. The act extends throughout His Majesty's dominions, but is not to be in force in a self-governing dominion (Canada and Newfoundland, Australia and New Zealand, and South Africa) unless enacted by the legislature thereof, either in full or with modifications relating exclusively to procedure and remedies or necessary to adapt the act to the circumstances of the dominion, in case of which adoption the legislature may repeal the act or enact supplementary legislation with reference to works first published or whose authors are resident within the dominion. Thus the bill practically permits the self-governing colonies to legislate independently, each for itself within its domain. The act may also be extended by Orders in Council to English protectorates "and Cyprus." Its provisions are also made applicable (by Part II on international copyright) through Orders in Council to subjects or citizens of foreign countries, directly or through separate action by self-governing dominions, under conditions which practically cover countries within the International Copyright Union under the Berne-Berlin conventions, though these are not named in the act; and to countries having reciprocal relations,--with authority to the Crown to withdraw any benefits of the act from citizens of countries not giving reciprocal protection. This code is based largely upon previous British practice, though with considerable extension and improvement.
{Sidenote: Scope and extent}
Copyright under this code covers "every original literary, dramatic, musical, and artistic work," first published within the included parts of His Majesty's dominions, and in the case of an unpublished work, the author of which was "at the date of the making of the work" a British subject or a resident domiciled within such included parts [or under protection through the international copyright provisions].
{Sidenote: Publication}
"A work shall be deemed to be published simultaneously in two places if the time between the publication in one such place and the publication in the other place does not exceed fourteen days," or such longer period as may be fixed by Order in Council. Publication is expressly distinguished from performance, exhibition or delivery.
{Sidenote: Definition of copyright}
Copyright is defined to mean "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever" or any translation thereof, to publish, perform, or deliver the work in public, to dramatize or novelize it, to make any record, roll, film or other contrivance by which it may be mechanically performed or delivered or to authorize any such acts. Architectural works of art are included as to design but not process or method.
{Sidenote: Infringement and exceptions thereto}
Infringement is comprehensively and sweepingly defined to cover any copying or colorable imitation of any copyright work or the doing by an unauthorized person of "anything the sole right to do which is by this Act conferred on the owner of the copyright." The code specifically excepts from the provisions against infringement (1) any "fair dealing" for private study, research, review or newspaper summary; (2) the use by an artist who has sold his copyright in a work of moulds, sketches, etc., except to repeat or imitate the design of that work; (3) the making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or (if not in the nature of architectural drawings or plans) of an architectural work of art; (4) the use in collections described and advertised as for school use, of extracts from copyright works (not themselves published for the use of schools), not more than two from any one author, and not duplicated within five years by the same publisher; (5) the newspaper report of a public lecture, unless specifically prohibited by exhibited notice; and (6) the reading or recitation in public by one person of any reasonable extract.
{Sidenote: Term}
The copyright term is for the life of the author and fifty years after his death, with provision that after an author's death the Judicial Committee of the Privy Council may, on allegation of the withholding of the work, require grant of license to reproduce, publish or perform it. Posthumous works, works the property of the Crown, photographs and mechanical music reproductions, are protected for fifty years; but no specific term seems to be indicated for anonymous or pseudonymous works as such. Works of joint authorship are protected for fifty years after the death of the author who first dies, or during the life of the author who dies last, whichever the longer period, and such works may be protected by action of any one of the authors. Twenty-five years, or for existing works thirty years after an author's death, any person may under specified conditions publish a copyright work on payment of ten per cent royalty--following an Italian precedent. Compulsory license is also provided for mechanical music reproductions, in case the author permits any such reproduction--following the American provision. University copyrights are continued in perpetuity only for existing copyrights.
{Sidenote: Ownership}
The author of a work is the first owner of the copyright, except in the case of a work done on order or in the course of contract employment. The owner of a copyright may by an assignment in writing assign his rights wholly or partially, and either generally or as limited to any part of His Majesty's dominions, or for the whole term of copyright or any part thereof, or license accordingly. But no assignment otherwise than by will shall be operative beyond twenty-five years from the death of the author, when the copyright reverts to his natural heirs, following Spanish precedent.
Registration provisions are altogether omitted from the new measure.
{Sidenote: Deposit copies}
Deposit is required at the British Museum within one month after publication, "of every book published in the United Kingdom" on penalty of fine not exceeding five pounds and the value of the book, and copies must also be supplied to the four university libraries, and for specific classes to the National Library of Wales, on demand--the "best" edition in the case of the British Museum, and that of which most copies are sold in the other cases.
{Sidenote: Importation}
Importation of "copies made out of the United Kingdom ... which if made within the United Kingdom would infringe copyright," is prohibited, on notification in writing to the Commissioners of Customs (the Isle of Man being specifically excepted from this provision), and similar prohibition is authorized as to British possessions. The use in the section on infringement of the phrase "imports for sale or hire," taken from the act of 1842, involves a possible limitation of this prohibition which is discussed in the chapter on importation.
{Sidenote: Remedies}
The usual civil remedies are provided, actions being limited within three years from the infringement. If the real name of an author, or in the absence of such, the name of a publisher, is indicated on a work, that is prima facie evidence of copyright ownership in the prosecution of infringement. An infringer may be relieved from damages (but not from injunction) on proving innocence; architectural infringements may not be enjoined after commencement of the structure, but are punishable by damages. On summary conviction any person who knowingly for sale or hire or for trade makes, sells or lets, distributes, exhibits, or imports infringing copies, shall be liable to a fine not exceeding forty shillings for each copy or fifty pounds for the same transaction, or in the case of a second offense, to imprisonment not exceeding two months; and similar provision is made as to infringing performance. The summary remedies in the musical copyright acts of 1902 and 1906 remain unrepealed.
{Sidenote: General relations}
The provisions of the code are extended to cover existing copyrights. Common law rights are specifically abrogated by provision confining the protection of an unpublished as well as a published work to statutory provisions.
{Sidenote: Acts repealed}
The measure repeals all existing enactments except sections seven and eight (modified) of the fine arts copyright act, 1862 (25 & 26 Vict. c. 68), which deal with fraudulent signature or marketing of art works and concern fraud rather than copyright, and the musical copyright acts of 1902 and 1906, providing summary remedies for piracy of musical works; and the provisions regarding copyrights of the customs and revenue acts are continued with modifications conforming them to this act.
The act does not apply to designs capable of being registered under the patents and designs act, 1907. Schedules of existing and corresponding rights and of enactments repealed are appended to the bill. The act is effective July 1, 1912, unless earlier made effective by Order in Council.
{Sidenote: Changes from original bill}
It may be noted that the new British measure had been much modified,--especially in the Committee stage, where efforts to reconcile conflicting interests were chiefly effective,--since its introduction as a Government measure in 1910. In the earlier form it was provided that the contributor of an article or contribution, periodical articles included, might retain a specific copyright except as against the proprietor of a collective work, and that an article in a newspaper, not being a tale or serial story, might be reproduced in another newspaper in default of a notice expressly forbidding it, providing the source were duly acknowledged. University copyrights, new as well as old, it was then proposed should still be perpetual. Copyright, it was specifically provided, should not pass from an artist when he sells his original work except by agreement in writing, but subsequent transfers of the original work from an owner also of the copyright, should transfer the copyright--but this is probably taken as implied in the new law. Registration at Stationers' Hall was continued and made applicable to all classes of works, and though optional, it was practically necessitated by the ingenious provision that in the absence of such registration an infringer might plead ignorance and be freed from damages. The summary provisions of the musical copyright acts were extended to cover other works, and these acts it was therefore proposed to repeal. The compulsory license provision limiting musical copyright and certain provisions as to ownership and term were introduced in the Committee stage. The word "infringing" was substituted for "piratical" in Parliamentary debate to conciliate a supersensitive member. The compromises and modifications indicated brought the measure before Parliament as an "agreed upon" bill.
{Sidenote: Isle of Man}
{Sidenote: Channel Islands}
The Isle of Man applies the copyright law of the United Kingdom, and has a supplementary law of 1907, applying British legislation on engravings and prints, sculpture, paintings, etc., and musical compositions, quite up to date, embodying in the latter section the latest provisions as to summary proceedings in the protection of music--this being enacted by "the Deemsters and Keys in Tynwald assembled," as the tiny Manx parliament is quaintly called. The Channel Islands of Jersey and Guernsey also apply British copyright law by ordinances or local legislation in their respective domains.
{Sidenote: International relations}
Great Britain was one of the original parties to the Berne convention and accepted the additional act, but not the interpretative declaration of Paris, and the passage of the new measure will permit adhesion to the Berlin convention. She has a special treaty with Austria-Hungary (1893), sometimes cited as the treaty of Vienna of 1893, and has been in reciprocal relation with the United States as a "proclaimed" country since July 1, 1891.
{Sidenote: Colonial relations}
The British dominions outside of the United Kingdom and Ireland are, in general, under the like provisions of Imperial copyright law, including the law of 1842 and earlier unrepealed or subsequent acts, the colonial copyright act of 1847 and the international copyright act of 1886 being especially important. They are also generally included under British international relations embracing the Berne-Paris provisions of the International Copyright Union and the reciprocal relations with the United States, but with the exception that in the Austria-Hungary treaty, Canada, New South Wales and Tasmania (both now part of the Australian Commonwealth), and Cape Colony (now part of the Union of South Africa) are not parties, because these colonies did not exercise the right of ratification specifically reserved to individual colonies.
{Sidenote: Judicial confirmation}
The application of the Berne convention to the British possessions was upheld in an important Canadian decision, when in 1906 Justice Fortin, in Mary v. Hubert, in the Quebec Court of King's Bench, held that the British international copyright act in relation with the Berne convention protected a French work from Canadian reprint, though the author had not complied with specific Canadian requirements,--a most significant decision in defense of international copyright.
{Sidenote: Local legislation}
Under the colonial copyright act of 1847, which declared local legislation or decrees repugnant to the Imperial law to be null and void, local legislation consonant with Imperial acts was permitted, subject to approval by the Crown through Orders in Council, in which case prohibition of importation of foreign reprints might be suspended by Order in Council with regard to the particular colony. Under this act, local legislation with special provisions existed in British India and other colonies, as well as in the "self-governing dominions," which last now include Canada and Newfoundland, Australia and New Zealand, and South Africa, and which have somewhat greater powers of local legislation. Under these local provisions, the Imperial law still prevails, local legislation being concurrent but not necessarily co-terminous with it, as is particularly noticeable in Canada, where there has been more or less conflict between the Imperial and Dominion authorities. Local protection may thus be extended, for instance, to works not first published within the British possessions, or in a unionist country, but copyright cannot be denied to works thus first published; and the Crown disapproves or disallows laws or provisions construed by the Imperial authorities to be repugnant to Imperial law. More than a score of colonies have adopted local laws or ordinances, some of which have been disallowed by the Crown. The status of copyright in the several colonies is thus indefinite and confusing, even to the best-informed English jurists, and can seldom be stated with certainty. Under the new British code, the "self-governing dominions" will have the right to accept the Imperial code, either completely or with adaptation to local judicial methods, or to legislate independently.
{Sidenote: Canadian copyright history}
In respect to the colonies now constituting the Dominion of Canada, before British copyright protection had been definitely extended to works first published outside the United Kingdom, Lower Canada in 1832, Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright statutes to protect authors of books first published in the respective provinces. On the passage of the Imperial act of 1847, authorizing the suspension of that portion of the act of 1842 which prohibited the importation of foreign reprints of British copyright works, as to any colony in which provision should be made by local legislation for protecting the rights of British authors, Orders in Council were passed for Nova Scotia and New Brunswick in 1848 and for Canada in 1850, suspending such prohibition, following satisfactory protection accorded by local acts in those years. These local acts provided for the collection of an impost on foreign reprints of works by British authors in favor of the author or copyright owner.
{Sidenote: Dominion of Canada: early acts}
In 1867 the British North America act (30 & 31 Victoria, c. 3) was passed, providing for the union of Canada and the other North American provinces (except Newfoundland) under the title of the Dominion of Canada, and section 91 of this act specified copyright among the subjects which were to be within the legislative authority of the Parliament of Canada. At the first session of the first Dominion Parliament in 1868, a general copyright act was accordingly passed, which was followed in the same year by an act continuing the customs duty of 12-1/2 per cent on foreign reprints of British copyright works, and an Imperial Order in Council was passed July 7, 1868, continuing Canada within the provisions of the foreign reprints act of 1847. The returns to British authors from this duty proved so small--only L1084 in ten years--that there was much dissatisfaction, and this impost was finally discontinued in 1895, whereupon the suspension under the Imperial act of 1847 of the prohibition of importation ceased to be in force in Canada and foreign reprints of British copyright works were again under the Imperial law prohibited.
{Sidenote: Acts of 1875}
In 1872 a new Canadian copyright act was passed, but it was disallowed by the Imperial authorities, whereupon, in 1875, the Parliament of Canada passed a new act, carefully drawn to avoid conflict with Imperial legislation. To remove any doubts as to its validity, the "Canada copyright act" of 1875 was passed by the British Parliament to authorize the royal assent. This Imperial act forbade the importation into the United Kingdom of colonial reprints, though authorized for the Canadian market by British authors (and therefore not piracies), of any work which might be copyrighted in Canada, and in which copyright subsisted in the United Kingdom. The Canadian act of 1875 then received the approval of the Crown, and as replaced and substantially re-enacted by the Revised Statutes of Canada, 1886 (c. 62),--which also included (as c. 37) the amendatory act of 1886, prohibiting the importation of "reprints of Canadian copyright works and reprints of British copyrighted works which have been also copyrighted in Canada,"--is still in force, being now Revised Statutes, 1906, c. 70, pt. I, as the fundamental Canadian copyright law, subject to amendments since passed and approved. The Imperial and Canadian laws of 1875, taken together, make it possible to issue in Canada cheaper reprints of British copyright works, by arrangement with the author or copyright owner, without interfering with the more costly English editions.
{Sidenote: License acts disallowed}
It should here be noted that the Canadian act of 1889, as amended by the Canadian act of 1895, constituting Part II of chapter 70 of the Revised Statutes, 1906, has never been approved and brought into force by proclamation of the Governor-General. The act of 1889, following the Imperial international copyright act of 1886, extended Canadian copyright on condition of registration with the Minister of Agriculture, and printing and publication or production in Canada within one month after publication or production elsewhere, and provided that the Minister of Agriculture might grant licenses, not exclusive, for the production of works not thus protected on an undertaking to pay to the author ten per cent royalty on the retail price, in which case importation of foreign-made (but not British) editions might be prohibited during the copyright period. The act of 1895 extended this license system to works which the copyright proprietor failed to keep in print in Canada, unless he should give satisfactory assurance of prompt reissue. These acts, as noted, never became effective.
{Sidenote: The Fisher act, 1900}
In 1900 an amendment to the copyright act was passed which is sometimes referred to as the Fisher act. It provides that if a book, as to which there is subsisting Canadian copyright under the copyright act, has first been published in any part of the British dominions other than Canada, and the owner of the copyright has granted a license to reproduce in Canada an edition of such book designed for sale in Canada only, the Minister of Agriculture may prohibit the importation into Canada, except with the written consent of the licensee, of any copies of such book printed elsewhere, excepting two copies each for the use of public or institution libraries. There is some question as to the compatibility of this act with Imperial law.
{Sidenote: Minor acts}
{Sidenote: Short form of notice}
An act of 1887 had authorized the transfer from the Minister of Agriculture to the Minister of Trade and Commerce of the registration of industrial designs and trade-marks, but this transfer has never taken place. The acts of 1890 and 1891 provided for copyright suits in the Exchequer Court of Canada in the name of the Attorney-General or at the suit of any person interested. The act of 1895 also contained a provision adding to the two deposit copies required for Canada a third for deposit in the British Museum. Finally an act of 1908 substituted the short form of copyright notice, "Copyright, Canada, 19__, by A. B." This completes the history of Canadian copyright legislation.
{Sidenote: Proposed Canadian copyright code, 1911}
The copyright legislation of Canada will presently be replaced by a comprehensive code, utilizing the permission granted by the new Imperial copyright measure to self-governing dominions. The new bill, of which the original text, as submitted to Parliament April 26, 1911, is given in full in the appendix, will establish relations between the Dominion of Canada and the Imperial authority closely similar to those established by the Australian act of 1905, between that Commonwealth and the home government. It pushes still further the precedent of "protection to home industries" followed by American copyright legislation since 1891, and is a far more drastic measure, evidently in retaliation against the United States and with preferential relations toward Great Britain in view. Americans can scarcely criticize, however, the logical application in Canada of legislation on this side of the border. Copyright is to "subsist in every original literary, dramatic, musical and artistic work the author of which was at the date of making the work a bona fide resident in Canada," not first published outside Canada (simultaneous publication being defined as within fourteen days), conditioned on registry before publication, and the manufacture of every copy within Canada. One registration of a periodical is to protect all future issues. Copyright it is proposed to define broadly, as in the new English bill, including the right "if the work is unpublished, to publish the work," thus bringing unpublished works within the statute law and probably excepting them from common law protection; and protection against mechanical music reproduction is also to be included. The term is to be for the life of the author and fifty years thereafter, with the new British proviso as to works of joint authorship, that the term is to be for the life of the author who dies first and fifty years thereafter, or the life of the author who dies last, whichever period is the longer. Assignment of copyright must be in accordance with the acts, and be registered. Importation of copies made out of the British dominions is prohibited. In case of a license for a Canadian edition of a book, copies printed elsewhere may be prohibited importation, except two copies for library use. Copyright may also be extended to foreign citizens under arrangements made by the governor in Council. British subjects resident elsewhere than in Canada may be brought under the act by Order in Council.
{Sidenote: Imperial and Canadian copyright}
{Sidenote: Requisites for domestic copyright}
The Imperial and Canadian copyright laws, apparently a complexity of complexities, are construed with relation to each other and thus do not conflict. Each is good pro tanto. The Canadian copyright law permits any person domiciled in Canada or in any part of the British possessions, or any citizen of any country which has an international copyright treaty with the United Kingdom, who is the author of a literary, scientific or artistic work, to obtain copyright in Canada for twenty-eight years, with a right of renewal for fourteen years to the author, if living, or to his widow or children, if he is dead, conditioned on re-registration within one year after the expiration of the original term, publication of a renewal notice in the Canadian Gazette and fulfillment of the obligations of original copyright. The requirements for obtaining domestic copyright in Canada are that the work shall be printed and published in Canada, shall be registered and three copies thereof deposited at the Department of Agriculture (Copyright Branch) before publication, and that each copy published shall bear the notice as cited above. In the case of paintings, drawings and sculpture, the original work may be protected by deposit of a written description instead of copies.
{Sidenote: Imperial and local protection}
Under the Imperial copyright act of 1886, providing that a book first published in any part of the British dominions shall have copyright throughout those dominions, works are protected in Canada under that act. Subjects or citizens of a country which has no international copyright relations with the United Kingdom may obtain copyright in Canada under the Canadian law by showing that they have British copyright in the work and complying with the other Canadian requirements. Copyright obtained under the Canadian copyright law, so far as it relates to books first published in the British dominions, is in addition to and concurrent though not co-terminous with Imperial copyright. The Copyright Branch in the Department of Agriculture is in charge of the Registrar of Copyrights, Trade Marks and Designs, a post filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be obtained in a work although the Imperial copyright may have been lost by reason of first publication having been made outside of the British dominions or treaty relationship, the Canadian law providing that literary works may be protected when printed and published in Canada, whether they are so published for the first time or contemporaneously with or subsequently to publication elsewhere.
{Sidenote: Additional local protection}
Canadian copyright also affords additional protection and relief not granted by Imperial copyright, by provisions (1) that the importation into Canada of foreign reprints of Canadian copyright works is prohibited, and (2) that every person who knowingly prints, publishes, sells, or exposes for sale any piratical copy of a copyright work shall forfeit every such copy to the copyright owner and shall pay for every such copy found in his possession, printed, published or exposed for sale by him not more than one dollar and not less than ten cents, one half of which shall belong to the copyright owner.
{Sidenote: Application for copyright}
An applicant for Canadian copyright, either the proprietor or his authorized agent, whether domiciled in Canada or other British possessions or a citizen of a country having an international copyright treaty with Great Britain, should make application to the Minister of Agriculture (Copyright Branch), Ottawa, Canada, for which statutory forms are provided from that office, attested by two witnesses and accompanied by a fee of one dollar for copyright registration, or fifty cents in case of interim or temporary copyright, and three copies of the book (full bound), map (mounted), etc., as printed and published in Canada, or written description of a work of art. A book must bear the statutory copyright notice, but a work of art the signature of the artist only. An author or his legal representative may obtain interim copyright pending publication or republication in Canada or temporary copyright during serial publication, by registering the designation or title of a work. Thus a citizen of the United States may protect his work in Canada through international copyright by first publication in the British dominions and also through Canadian copyright, with additional protection, by complying with the requirements of the Canadian law, which are in some respects closely parallel with those of the United States.
{Sidenote: Newfoundland}
In Newfoundland, always a separate colony and now a self-governing dominion separate from the Dominion of Canada, an act of 1849 for the protection of British authors was followed by an Order in Council of the same year extending to that colony the provisions of the Imperial act of 1847. It made provision, following the precedent of Canada, for a customs duty on foreign reprints of British copyright works, which provision was re-enacted in the Consolidated Statutes of 1872 as chapter 53 and again in the Consolidated Statutes of 1892 as chapter 111, the duty being at twenty per cent. In 1890 a copyright act was passed, which remains the fundamental copyright act of Newfoundland, as included in the Consolidated Statutes of 1892 as chapter 110, supplemented by chapter 111, as above indicated. These two chapters have been amended only by the act of 1898 placing copyrights, patents and trade marks under the jurisdiction of the Colonial Secretary, an officer provided for in the act, and the act of 1899 reducing the copyright fee of one dollar to twenty-five cents in the case of photographs. Copyright in Newfoundland is on the same general lines as in Canada, following in large part the precedent of the United States, and is for a term of twenty-eight years with renewal for fourteen years--local protection as distinguished from Imperial protection being given to works printed and published--or in the case of works of art, produced--within Newfoundland, on condition of registration with the Colonial Secretary and deposit with him of two copies of a printed work, bearing statutory copyright notice, or of the description of a work of art,--which work must bear the signature of the artist,--one of the two copies being for the use of the Legislative Library.
{Sidenote: British West Indies, etc.}
In the British West Indies, Jamaica has domestic legislation of 1887 under the Imperial act of 1886, for the British term, requiring the deposit at an office notified in the Jamaica Gazette of three copies within one month from publication--one for the British Museum, one for official use, and one for a designated public library. The Governor may declare one copy sufficient where deposit of three copies would inflict injury. Trinidad, under an ordinance of 1888, provides similarly for the deposit of three copies in the office of a Registrar of copying rights, with optional but not obligatory registration of playright. The minor British islands in the West Indies, the Bahamas, British Guiana and British Honduras, seem not to have provided local legislation, but remain exclusively under Imperial law.
{Sidenote: Australian code of 1905}
The copyright act, 1905, of the Commonwealth of Australia, assented to December 21, 1905, is a comprehensive code superseding previous copyright legislation by the several states formerly separate colonies, New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, although it preserves the rights in existing copyrights taken out under the several state acts. International copyrights under acts of the Parliament of the United Kingdom and state copyrights may be registered under this act and then enforced throughout the Commonwealth. This act covers (Part III) literary, musical and dramatic copyright and separately (Part IV) artistic copyright. Part I, preliminary, deals with definitions, and Part II with administration. Part V deals with infringement, Part VI with international and state copyright, Part VII with registration and Part VIII with miscellaneous provisions. "The common law of England" is specifically applied to unpublished literary compositions. The Australian code is of course concurrent though not co-terminous with the Imperial law, and must be construed in consonance with it. It is admitted that artistic works are not protected in Australia under either Commonwealth or Imperial law unless "made in Australia," and this serious difficulty the Commonwealth authorities proposed to remedy by an amendatory act which was presented to the Commonwealth legislature in 1906 but was not then passed. To prevent importation of pirated works, written notice of the copyright and its term should be given to the Minister in Australia unless communicated to him by the Commissioners of Customs of the United Kingdom, from registry in London, through the lists periodically distributed.
{Sidenote: General provisions}
Copyright in a book covers the right, directly or by authorization, to copy, abridge, translate, dramatize or novelize, and in the case of a musical work "to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it in any notation." "Copyright shall subsist in every book" (including by definition a dramatic or musical work, when printed and published), "whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia, in cases where type is not necessarily used, and has ... been published in Australia before or simultaneously" (defined as within fourteen days) "with its first publication elsewhere"; and the copyright term is forty-two years from first publication in Australia or the life of the author or of the last surviving joint author and seven years thereafter, whichever the longer. Performing right and lecturing right subsist separately for a like period from first public performance or delivery in Australia simultaneously with first public performance or delivery elsewhere. But lecturing right ceases if a lecture is published as a book. The author is the first owner of copyright or performing right, except as employed for valuable consideration, and in the latter case may reprint an article from a periodical after one year. Copyright subsists in every artistic work "made in Australia," but the copyright of a portrait or photograph is with the person ordering it.
{Sidenote: Dramatic and musical works}
A dramatic work includes a libretto or lyrical work set to music or otherwise, "or other scenic or dramatic composition"; a musical work is defined as "any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced"--which seems to omit mechanical reproductions.
{Sidenote: Performing right}
Copyright is a distinct and separable property from performing right or the ownership of an artistic work, and either right may be separately assigned under any conditions or limitations. Where a dramatic or musical work is published as a book, notice of reservation of performing right must be printed thereon, in default of which the owner of the performing right cannot obtain damages from an infringer, but may obtain them from the owner of the copyright who has neglected after notice to print such reservation. The proprietor, tenant or occupier who permits a place to be used for an infringing performance shall be deemed an infringer. The owner of a performing right may himself issue notices in writing forbidding performance, disregard of which involves a specified fine.
{Sidenote: Registration and license}
Provision is made for a registrar and deputies, and for a general Copyright Office where shall be kept separate registers of literary copyrights, of fine art copyrights and of international and state copyrights. The owner of any copyright, performing or lecturing right may obtain registration by the deposit of two copies of the best edition of a book or one copy of an art work or photograph of it, and no suit can be maintained prior to such registration. In case, after the death of an author, the owner of the copyright or performing right withholds the work from the public, the Governor-General may grant a license for publication or performance.
{Sidenote: New Zealand}
New Zealand, now a separate self-governing dominion, provided when a British colony,--like the Australian colonies before their consolidation into the self-governing Commonwealth,--by an Ordinance of 1842 for a copyright term of twenty-eight years or life, whichever the longer, and has since passed special acts, covering specific classes, 1877 to 1903, but seemingly no general code. Photographs are protected for five years from the taking. Telegraph dispatches were protected by the electric lines act of 1884. Local registration seems to be provided only, and then optionally, for the protection of plays, for which purpose application with a copy of the play should be made at the Registry of Copyrights, Wellington, and if the play is printed a copy deposited in the Library of the General Assembly; and summary jurisdiction, with power of fine and imprisonment, is then given to the magistrates. To prevent importation, notice may be filed with the Minister of Customs in New Zealand, or through the London commissioners, as in the case of Australia.
{Sidenote: Australasia otherwise}
In the other British islands of Australasia and the Pacific, Imperial copyright exclusively prevails, as a Fiji Islands' Ordinance of 1903, the only one passed in any of the smaller islands, was disallowed by the Crown.
{Sidenote: British India}
British India provided a general copyright act in 1847, in line with preceding Imperial legislation, and under the press copyright act of 1867, somewhat modified the British Imperial law, especially providing for deposit of three copies in an office to be designated from time to time in the official gazette, within one month from publication, and the printing on each copy of the printer's and publisher's names. Quarterly publication of such titles is provided for as part of the official gazette. The general term is as in Great Britain, for life and seven years or forty-two years, whichever is longer, with variations for particular classes of works. Ceylon, Mauritius and Hong Kong have the like term and also provide for three deposit copies. In all these cases one copy is retained by the Secretary of State of the colony, one put at the disposition of the Governor and Council, and one after registration deposited in a designated public library. Straits Settlement (Singapore) provides for registration without deposit, in the office of Colonial Secretary. To prevent importation into British India, specific notice may be filed directly with the Collectors of Customs at Bombay, Madras and Calcutta as well as through the London customs.
{Sidenote: South Africa}
South Africa, the latest of the British self-governing dominions as organized in 1910 into a Union, has not yet adopted a general copyright code, which it may do under the precedent of Australia or after passage of the new British copyright code, by acceptance of that code or by independent legislation. Meantime its copyright relations are those of the former separate colonies, as the Cape Colony, Natal and other English colonies, following in the main English precedent, and the Transvaal and other Dutch colonies, following Holland precedent, including a requirement for printing within the country as a prerequisite for copyright.
{Sidenote: Cape Colony}
The Cape Colony, under acts of 1873, 1880, 1888 and 1895, provided local copyright for life and five years or thirty years, whichever the longer, four copies of a book or printed play first published in the colony to be deposited for registration by the printer within one month from delivery from the press, for registration with the Registrar of Deeds, these copies to be transmitted to designated libraries. Telegraph dispatches in newspapers were protected by the act of 1880, for 120 hours. Lists of copyrighted works are printed in the government gazette and thus communicated to the colonial customs authorities.
{Sidenote: Natal}
Natal, under acts of 1895, 1897 and 1898, provided local protection for the regular British term, two copies to be deposited with the Colonial Secretary for registration, within three months from publication. Messages by telegraph, pigeons and other special dispatch were protected by the act of 1895, for 72 hours. To protect a play, the title, if in manuscript, or a printed copy, must be registered precedent to local action. Probably failure to deposit in these colonies does not forfeit copyright, and imperial provisions generally hold good.
{Sidenote: Transvaal}
The Transvaal, under local legislation of 1887, provided protection for fifty years from registration, receipt or for life, on condition of printing within the colony, and the deposit of three copies thus printed, within two months of publication, accompanied by the affidavit of the printer, without which formalities copyright was forfeited. A resolution of 1895 authorized waiver of the printing requirement in the case of countries having reciprocal relations. Reservation by printed notice was required to protect playright and right of translation; playright in a printed play was limited to ten years, but for an unpublished play was for life and thirty years. All these colonies, whether formerly British or Dutch, are probably now under Imperial copyright law, which would nullify local provisions incompatible with that law, pending the enactment of a South African general code.
{Sidenote: West coast colonies}
Sierra Leone and the neighboring British colonies on the west coast, as Gambia and the Gold Coast, are under imperial copyright law, and passed local ordinances under the provisions of the British act of 1886, Sierra Leone having provided by Ordinance of 1887 for copyright for the usual British term with deposit of three copies in an office to be designated in the Sierra Leone Royal Gazette, and the other colonies having similar provisions.
{Sidenote: Mediterranean islands}
The Mediterranean islands of Malta and Cyprus, in addition to imperial copyright, have local ordinances providing respectively for registration in an office notified in the government gazette, and deposit of three copies, within one month from publication. Gibraltar seems to be only under Imperial copyright.
XXI
COPYRIGHT IN OTHER COUNTRIES
{Sidenote: France}
France has always been the most liberal of countries in giving copyright protection to foreign as well as native authors publishing within France, and copyright was perpetual up to the abrogation by the National Assembly in 1789 of all privileges previously granted. Though two acts regarding dramatic performances (spectacles) were passed in 1791, it was not till 1793 that the National Convention passed a general copyright act, which still remains the fundamental law of French copyright. The state still has copyright in perpetuity in works published by its order or by its agents, but not in private copyrights lapsing to the state for lack of heirs; copyrights otherwise, by the law of 1866, are for life and fifty years. Playright is protected without deposit, but the printer of a book or play is required to deposit two copies on penalty of fine but not forfeiture of copyright. No formalities are requisite, but to obtain a right of action, deposit of two copies of a book is required, at the Ministry of the Interior at Paris or at the Prefecture or town clerk's office if in the provinces, for which a receipt is given. More than a score of laws modifying the French copyright system have been passed, the latest being that of April 9, 1910, providing that transfer of a work of art does not involve the copyright.
{Sidenote: French foreign relations}
France, which had in general extended the protection of domestic copyright to works published in France, whatever the nationality of the author, specifically protected, by the decree of 1852, from republication (though not from performance) works published abroad, without regard to reciprocity, on compliance with the formalities of deposit previous to a suit for infringement. It early negotiated treaties with other countries, only those with England (since replaced by relations through the International Copyright Union) and Spain requiring deposit in those countries, while four of the countries which required registration permitted that it should be performed at their legations in Paris.
France, as also its protectorate Tunis, became one of the original signatory powers of the Berne convention of 1886, adopted the Paris acts of 1896, and after some delay and discussion accepted the revised Berlin convention under the act of June 28, 1910, ratified by decree of September 2, 1910, with reservation as to works of applied design, as to which it maintained the stipulations of the previous conventions. It has treaties with Austria-Hungary (1866-1884), Holland (1855-1884), Montenegro (1902), Portugal (1866), and Roumania by an arrangement on the "most favored nation" basis (1907). It has also still existing treaties with Germany (1907), Italy (1884), and Spain (1880), among the unionist countries, on the "most favored nation" basis--former treaties with Great Britain and the Scandinavian countries having been superseded by International Copyright Union relations. It has been in reciprocal relations with the United States as a "proclaimed" country since July 1, 1891; and it has also treaties with the Latin American countries of Argentina (1897), and Paraguay (1900), both under the Montevideo convention, Bolivia (1887), Costa Rica (1896), Ecuador on the "most favored nation" basis (1898, 1905), Guatemala (1895), Mexico through a treaty of commerce on the "most favored nation" basis (1886), and Salvador (1880), and one with Japan (1909) as to rights in China. Algiers and other colonies are under French law, and French precedent is followed by the protectorate Tunis, though as a separate power.
{Sidenote: Belgium}
Belgium, under the law of 1886, grants copyright and playright for life and fifty years, including translations and photographs, or for corporate and like works fifty years. No formalities are required except that corporate and posthumous works must be registered at the Ministry of Agriculture within six months from publication. Notice is required only to forbid reproduction of newspaper articles. Belgium is one of the original parties to the Berne convention, adopted the Paris acts and ratified on May 23, 1910, the Berlin convention. It has treaties with Austria (1910), Holland (1858), Portugal (1866), and Roumania (1910), as also with Germany (1907) and Spain (1880)--all save Austria and Portugal on the "most favored nation" basis; it has been in reciprocal relations with the United States as a "proclaimed" country since July 1, 1891, and as to mechanical music since June 14, 1911, and has also treaties with Mexico on the "most favored nation" basis (1895), and under the Montevideo convention with Argentina and Paraguay (1903).
{Sidenote: Luxemburg}
Luxemburg, under its law of 1898, very nearly a copy of the Belgian law, grants copyright and playright for life and fifty years. The right to translate is protected for ten years from the publication of the original work. Registration is required only for posthumous or official works to be made at the Office of the Government; and notice is required only to reserve playright or to forbid reprint of newspaper articles. Protection is provided against mechanical music reproductions. Luxemburg was an acceding party to the Berne convention, accepted the Paris acts and ratified the Berlin convention July 14, 1910; it has had reciprocal relations with the United States as a "proclaimed" country since June 29, 1910, and as to mechanical music since June 14, 1911.
{Sidenote: Holland}
Holland, originally giving copyright in perpetuity under indefinite conditions, and later applying French law, is now under its law of 1881, the only country in Europe still requiring, in accordance with its ancient practice, printing and publication within the country. Two copies, so printed, must be deposited with the Department of Justice within a month from publication, and playright must be reserved on a printed work. The general term is for fifty years from the date of the certificate of deposit and through the life of the author, if he has not assigned his work, and for unprinted works, including oral addresses, life and thirty years. The protection for unprinted works covers playright and the right to translate, and protects any author domiciled within Holland or the Dutch Indies. For corporate and like works, the term is fifty years. The exclusive right to translate, must be reserved on the original work and exercised within three years; the translation is then protected for five years, provided it is printed within the country. Playright in a printed play lasts only ten years from deposit. Holland is not a party to any general convention, but it has a treaty with Belgium on the "most favored nation" basis (1858) and arrangements with France (1855-1884); and it has had reciprocal relations with the United States as a "proclaimed" country since November 20, 1899. The Dutch colonies, as in the East and West Indies and elsewhere, are generally included under Dutch law. A new copyright code presented by the government in 1910, omitting the printing requirement, has passed the first Chamber, and after it becomes law Holland, under a concurrent vote in 1911, is authorized to accede to the Berlin convention.
{Sidenote: Germany}
Copyright throughout the German Empire is now regulated for literary (impliedly including dramatic) and musical works and certain illustrations, by the act of 1901,--in which year there was also adopted an act regulating publishers' rights and contracts; and for works of figurative art and photographs by an act of 1907. An act of 1910 amends these in some particulars.
{Sidenote: History}
These laws superseded entirely the previous acts, dating back to 1870, when the first imperial copyright act was passed after the realization of German unity under Emperor William I. The original act forming the Germanic confederation in 1815, had authorized the German Diet to protect authors' rights, and after futile decrees in 1832 and 1835, resolutions were passed in 1837 making protection effective for a minimum period of ten years throughout all the states which granted protection to authors. Prussia had meanwhile, under the King's Order in Council of 1827, arranged in 1827-29, reciprocal relations with thirty-three out of the thirty-eight states and free cities in the German confederation, and with Denmark for its German provinces, through which the citizens of other states enjoyed the same privileges as natives; and in 1833 the same reciprocal provisions were extended to cover Prussian provinces outside the federation. Many of the early copyright systems had not extended protection to an author's heirs, but in 1837 Prussia passed an improved law making the term life and thirty years and granting protection to citizens of foreign countries in the same proportion that works published in Prussia were therein protected. Thus, up to the time of the Empire, copyright was protected as a matter partly of federal and partly of state legislation.
{Sidenote: Laws of 1901-07}
Copyright under the imperial legislation of 1901-07 was granted for life and thirty years, and furthermore for posthumous works at least ten years from publication; and for anonymous, pseudonymous and corporate works, thirty years. Copyright in photographs is for ten years only, and in any event ceases ten years after the author's death. The copyright term is reckoned from the end of the calendar year of an author's death or of publication. In joint authorship, the term is from the death of the last surviving author. Playright is, inferentially, under like terms and conditions. The author of anonymous or pseudonymous works, on registering his name, may obtain protection for the full term. In works published in parts, the publication of the last part determines the copyright term. Corporate bodies (juridical persons) are recognized as authors; in composite works the originator of the work as a whole, or if no such editor is mentioned, then the publisher, is regarded as author; if a literary work is accompanied by music or by illustrations, the author of each part is regarded as originator of his separate work; in inseparable composite works, a partnership arrangement is recognized by the law. No formalities are required, but registration of the author's name on its disclosure in the case of an anonymous or pseudonymous book, may be made in the register to be kept by the Municipal Council of Leipzig for a fee of a mark and a half (36 cents) and expense of official publication originally in the Boersenblatt, but since a law of 1903 in the Reichsanzeiger. Translations, adaptations, etc., are protected as original works. Official documents, public speeches, etc., are not protected, and reproduction of newspaper articles, except those of a scientific, technical or recreative character, is permitted, unless reservation is made, on condition of acknowledgment and that the meaning shall not be distorted. Extracts are permitted under specified limitations. Poems may be used as set to music unless distinctively intended for that purpose; and musical compositions, except operas and the like, may be played for charity purposes or by musical societies for members and their families.
{Sidenote: Art provisions}
In the case of a work of art, reproduction for personal use and gratuitously is permitted, but during an author's life only by photographic means; this permission authorizes only, as to a work of architecture, reproduction of exterior aspect and not of the work upon the ground. The person ordering a portrait is entitled to reproduce it, except on agreement to the contrary. Reproduction and exhibition are permitted of portraits in contemporary history or when accessories, as in a landscape or part of a procession or assemblage, or in the interest of art if not made to order,--provided this is not to the injury of the reputation of the original; or in the interest of justice or public safety. Reproductions of works standing permanently in public places are permitted, but these may not be affixed to a work of architecture.
{Sidenote: Piracy}
Piracy is punished by damages and a statutory fine, or imprisonment in case of intentional infringement, but proceedings must be commenced within three years. The law provides for committees of experts in the several states under regulations of the imperial government to act as arbiters or to advise the justices; and there is final appeal to the Supreme Court of the Empire.
{Sidenote: Foreign citizens}
The law protects all works of a subject of the German Empire and works of aliens, if published within the Empire before previous publication elsewhere, the latter clause a change from the former practice of protecting works by a foreigner if published by a firm having a place of business or a branch within the Empire.
{Sidenote: German foreign relations}
Germany was a party to the Berne convention and to the Paris acts, and ratified July 12, 1910, the Berlin convention. This ratification was made possible by an act of May 22, 1910, modifying domestic copyright to conform with the provisions of the Berlin convention, and incidentally repealing and replacing sec. 22 of the law of 1901, regarding mechanical music reproduction, as fully stated in the chapter on that subject. On July 12, 1910, the Emperor promulgated an ordinance providing for the application of the law, and both the Berlin convention and this new law became effective September 9, 1910.
Germany has treaties outside the Union with Austria-Hungary (1899), has special treaties beyond the provisions of the Union on the "most favored nation" basis, made in 1907 with Belgium, France, and Italy, and has been a "proclaimed" country in reciprocal relations with the United States since January 15, 1892. By proclamation of December 8, 1910, reciprocal relations as to mechanical music reproductions were also proclaimed between Germany and the United States.
{Sidenote: Austria-Hungary}
In Austria-Hungary, the dual states of that empire have separate copyright as well as other legislative relations. Austrian domestic copyright is based on the law of 1895, as amended by that of 1907, and Hungarian on the law of 1884. Copyright in Austria is dependent on publication within the country and citizenship or reciprocal relations; in Hungary on publication by a Hungarian publisher and two years' residence in the case of foreign authors whose country is not in reciprocal relations. In Austria the general term is for life and thirty years, in Hungary life and fifty years, or for corporate, anonymous and like works, thirty or fifty years respectively, unless the anonymous author discloses his identity. Registration, in Austria at the Ministry of Commerce, and in Hungary at the Ministry of Agriculture, is required only for anonymous and pseudonymous works, and in Hungary in other special cases, as plays. The right of translation must be reserved on the work, for specified languages or in general, and must be exercised within stated periods; notice is also required on photographs, and in Austria on musical works to protect performing right. Posthumous works, if published in the last five years of the thirty or fifty year term, are protected for five years from publication. Photographs are protected only for ten years in Austria and five years in Hungary. Collections of telegraph news, as printed in a newspaper, are protected in Hungary. Austria and Hungary have a treaty with each other (1907), and jointly with Great Britain (1893), Germany (1899), France (1866-1884) and Italy (1890), involving in the case of Hungary registration in Hungary as well as in the country of origin. Austria has also treaties with Belgium (1910), Denmark (1907), Roumania (1908), and Sweden (1908), and has been in reciprocal relations with the United States as a "proclaimed" country since December 9, 1907; Hungary is negotiating reciprocal relations with the United States, but has otherwise no separate treaties. Neither Austria nor Hungary is a unionist country.
{Sidenote: Switzerland}
Switzerland, under its federal constitution of 1874 and the law of 1883, provided copyright for life and thirty years or for corporate and like works thirty years, giving protection for the full term to translations if the right to translate is exercised within five years from publication. Photographs were protected for five years only. No formalities are required, though an author has the option of registering his work, with the exception that registration in the Office of Intellectual Property is required within three months from publication for the protection of posthumous and official publications and photographs. Notice of reservation of playright is required on printed copies. Switzerland was an original party to the Berne convention, accepted the Paris acts and ratified the Berlin convention without reservation in 1910. It has had reciprocal relations with the United States as a "proclaimed" country since July 1, 1891, and included copyright in a treaty with Colombia (1908).
{Sidenote: Scandinavian countries}
The Scandinavian countries, Denmark, Norway and Sweden, in which last copyright was formerly perpetual, now grant protection for life and fifty years as the general term, or fifty years for corporate and like works, an anonymous author having the right to the full term on printing his name in a new edition or declaring it by registration. Photographs are protected for five years--in Norway for fifteen years. The right to translate into a Scandinavian language is protected for the full term; into other languages for the full term in Norway, but in Denmark and Sweden only for ten years from the end of the year of publication of the original work, with an addition in Denmark that a translation published within these ten years protects the author for the full term against unauthorized translation into that language. No formalities are requisite, but in Norway the printer is required, though default does not affect copyright, to deposit a copy with the university library in Christiania within a year of publication. Notice is required, however, on photographs, and except in Sweden, to reserve right of musical performance. Denmark, by two laws of 1911, requires deposit and registration of photographs. Sweden makes the exceptions that works of art are protected for life and ten years and that playright is for life and thirty years, or for anonymous plays, only for five years, unless the author meantime discloses his identity. In Denmark and Norway right of recitation and in Sweden playright must be specifically reserved.
{Sidenote: Scandinavian foreign relations}
Denmark's domestic copyright is covered by laws of 1865, 1902, 1904, 1908 and 1911, Norway's by those of 1877, 1882, 1893, 1909 and 1910, Sweden's by the general laws of 1897, codifying those of 1877, etc., respectively for literary, art and photographic works, and amendatory acts of 1904 and 1908. All three are unionist countries. Denmark remains under the Berne-Paris agreement, not having accepted the Berlin convention. Norway became party to the Berlin convention by ratification September 4, 1910, with reservations as to architectural works, in which it adheres to article IV of the Berne convention; as to newspaper and review articles, in which it adheres to article VII of the Berne convention; and as to the retroactive provision, in which it adheres to article XIV of the Berne convention. Sweden remains under the Berne convention and the interpretative declaration of Paris, not having accepted either the Paris additional act or the Berlin convention. Each Scandinavian country has a special copyright treaty with the other two (1877, 1879, 1881). Denmark has also a treaty with Austria (1907) and Sweden with Austria (1908). Denmark has had reciprocal relations with the United States as a "proclaimed" country since May 8, 1893, Norway since May 25, 1905, and as to mechanical music since June 14, 1911, and Sweden since June 1, 1911. A special law for Iceland, embodying in general the Danish provisions, was passed in 1905, and the Danish law may be taken as covering the other Danish colonies, as the Danish West Indies, in lack of special legislation.
{Sidenote: Russia}
Russia early gave, in 1828-30, enlightened protection to authors, providing for a term of life and twenty-five years, with an added ten years under specified circumstances, and protecting an author's copyright from seizure by his creditors and from passing from a bankrupt publisher except on fulfillment of the author's contract. Under the civil code of 1887, copyright was extended to life and fifty years, but playright was only nominally protected and the protection of translations was negatived by a decision that translations must be word for word. The new law sanctioned March 20, 1911, is a comprehensive and detailed code providing copyright for life and fifty years, except that certain collections are only protected for life and twenty-five years and periodicals for twenty-five years, photographs for ten years and translations on notice of reservation for ten years, the right to translate being exercised within five years from publication. Playright is protected, but on a musical work notice of protection must be printed. A photograph must bear notice of its purpose, date and author's name and domicile. Protection is accorded to all works published in Russia and works published by Russian subjects domiciled elsewhere; and provision is made for treaties on reciprocal conditions. The law treats also of relations between authors and publishers. Russia, though represented at Berlin, has as yet no international relations.
{Sidenote: Finland}
Finland, formerly an independent grand duchy, protects copyright under its law of 1880 for a general term of life and fifty years, with exceptions as to photographs, etc., and with provisions as to translation into the Finnish and Scandinavian languages similar to those of Scandinavian countries. Other provisions are similar to those of Russia. It has no exterior copyright relations.
{Sidenote: Spain}
Spain passed a general copyright code in 1879, which applied not only to the Peninsula, but ultramar to Cuba and the other colonies, and became a model for later legislation in several Spanish-American countries, under which code detailed regulations were promulgated in 1880. This code is enforced through the penal code of 1870 and the civil code of 1889. Ordinances from 1893 to 1910 deal with the regulations as to details. Spain grants copyright for life and eighty years on condition of registration by deposit of three signed copies with the Register of Intellectual Property in the Ministry of Agriculture, or in the provincial centres for registration, within one year from publication. In default of registry within the year, any one may publish the work for ten years; and if after the ten years the author fails to register within the ensuing (twelfth) year, the work falls into the public domain. Protection is given for an indefinite term to works issued by the state and, to the extent of their legal existence, those from corporate bodies. A work assigned within the life of the author, remains in the possession of the assignee during the full term unless there are natural heirs (herederos forzosos--"forced" or inalienable heirs), in which case the right reverts to such heirs twenty-five years after the death of the author, on registry of such right and proof of succession under the regulations accompanying the act. This, according to the official Spanish print, is for the remaining fifty-five years--not, as in a French version, for twenty-five years only. A musical work is protected with reference to other instruments and to other forms in a provision so broad that it is possibly applicable to mechanical music reproductions. Writings and telegrams inserted in periodicals may be reproduced unless this is expressly forbidden by notice at the title or at the end of the article--a provision which implies the protection of articles and telegrams in case of such notice of reservation. Works not republished for twenty years fall into the public domain, except in the case of unprinted dramatic or musical works,--unless the proprietor shows that during such period he has kept copies on sale. The protection of domestic law is extended by the terms of the law to citizens of countries having reciprocal relations, without additional formalities.
{Sidenote: Spanish foreign relations}
Spain was one of the original parties to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation, through ratification by the King September 5, 1910. Spain has treaties with Portugal as well as with Belgium, France and Italy, all four made in 1880 on the "most favored nation" basis; it has relations with the United States under treaties of 1895, 1898 (the peace treaty), and 1902, and as a "proclaimed" country since July 10, 1895; and has treaties also with Colombia (1885), Costa Rica (1893), Ecuador (1900), Guatemala (1893), Mexico (1903) and Salvador (1884), mostly on the "most favored nation" basis, and relations under the Montevideo convention with Argentina and Paraguay (1900).
{Sidenote: Portugal}
Portugal, under its civil code of 1867 and penal code of 1886, grants copyright for life and fifty years to its citizens and to foreigners whose countries grant reciprocal relations. The foreign author, to protect a translation of his work, which protection is for ten years only, must provide such translation within three years. Translations of non-copyright works by a native translator are protected for thirty years. Two copies must be deposited before publication at the Public Library, or in the case of dramatic and musical publication in the Royal Conservatory in Lisbon. Portugal as a republic acceded to the Berlin convention from March 29, 1911. It has additional relations with Italy (1906) and Spain on the "most favored nation" basis (1880); and reciprocal relations with the United States as a "proclaimed" country since July 20, 1893, and with Brazil (1889).
{Sidenote: Italy}
Italy grants copyright under its law of 1882,--codifying its original law of 1865 and the dramatic law of 1875,--as promulgated by royal decree September 19, 1882, to become effective in 1885, and its civil code of 1889. It assures full copyright for life or forty years, whichever the longer. After forty years from first publication or, if the author live beyond that date, after his death, a second term of forty years begins, in which any person, on duly declaring his intention, may republish a work, on condition of paying five per cent royalty to the copyright proprietor. The state may expropriate any work after the death of an author on paying to the proprietor a compensation named by three experts. Government and society publications are copyright only for twenty years. An author may reserve rights of translation for ten years. Playright is for eighty years. Three copies of the printed work should be deposited at the prefecture of the province within three months, in default of which, infringement previous to deposit cannot be punished; and if deposit is not made within ten years, the author is understood to waive his rights. With the deposit copy a declaration of reservation of rights should be filed, for publication in a semi-annual list in the official gazette. Notice is required to reserve rights in periodical contributions. A manuscript copy of an unpublished play should be submitted within three months from first performance for vise, which manuscript is then returned. By the law of 1910, as to legal deposit, three copies must be delivered to the Procureur du Roi in the district of the printing establishment for transmission to the official libraries in Florence, Rome and the respective province; failure to make such deposit does not affect the copyright, but involves a fine. The laws, both of 1865 and 1882, extended copyright to foreign works, on relations of reciprocity, without treaty arrangements and without additional formalities.
{Sidenote: Italian foreign relations}
Italy was an original party to the Berne convention and accepted the Paris acts, but has yet to ratify the Berlin convention. It has treaties with Austria-Hungary (1890), Montenegro (1900), Portugal (1906), Roumania (1906), San Marino (1897); also special treaties with Spain (1880), France (1884), and Germany (1907), all on the "most favored nation" basis. It has had reciprocal relations with the United States as a "proclaimed" country since October 28, 1892, and has also treaties with Colombia (1892), with Cuba (1903) and Mexico (1890) on the "most favored nation" basis, and with Nicaragua (1906); and also under the Montevideo convention, relations with Argentina and Paraguay (1900).
{Sidenote: San Marino}
San Marino, the tiny state enclosed within Italy, has pledged itself by the copyright provisions in its treaty with Italy (1897) to protect all works protected in Italy, by application of the Italian law.
{Sidenote: Monaco}
Monaco, under laws of 1889 and 1896, provides copyright for life and fifty years with the peculiar provision that copyright on anonymous and pseudonymous works extends fifty years beyond the death of the publisher, who is reputed author. No formalities are required except notice of reservation in respect to articles in periodicals. Monaco acceded to the Berne convention, in 1889, accepted the Paris acts and ratified the Berlin convention without reservation, December 19, 1910.
{Sidenote: Greece}
Greece originally provided for copyright protection under its penal code of 1833, with a term of fifteen years subject to royal extension. By the law of 1867 the printer of a work was required to deposit with the National Library two copies within ten days of publication, failure involving a fine of at least ten drachmas, but not forfeiture of copyright; and to this requirement was added by the law of 1910 a third copy for the Library of Parliament and a fourth for the local public library, with authority to transmit through the post. A dramatic copyright law of 1909 specifically covers playright, making the term life and forty years and preventing modification of a play by an assignee. Greece has no international relations.
{Sidenote: Montenegro}
Montenegro, though it has no specific domestic copyright law, and only gives uncertain protection under its customary law and civil code of 1888, has treaties with France (1902) and Italy (1900). It had acceded to the Berne convention July 1, 1893, and accepted the Paris acts, but withdrew from the International Copyright Union April 1, 1900, "from motives of economy."
{Sidenote: Roumania and other Balkan states}
The Balkan states are led in copyright protection by Roumania, possibly owing to the influence of the literary queen "Carmen Sylva," which country, under the press law of 1862 and penal code of 1864, has protected copyright and playright, including probably translation, for life and ten years. Written registration is required at the Ministry of Instruction, and deposit of four copies was also required, though not on penalty of forfeiture of copyright. A later law, of 1904, repeals the deposit requirement. Roumania has copyright treaties with Belgium (1910), France (1907), these on the "most favored nation" basis, Austria (1908) and Italy (1906). Bulgaria and Servia seem to give no protection, except that accorded in Bulgaria by its penal code of 1896, and have no international relations.
{Sidenote: Turkey}
Turkey, which gave some protection to authors so far back as its penal code of 1857, passed in 1910 a new copyright code providing for books, drama and music a term of life and thirty years, in which last the children, widow or widower, the parents and the grandchildren or their descendants should benefit in equal shares; and for works of art, including architecture, a term of life and eighteen years. Posthumous works are protected from publication for the years above stated. Copyright includes right of translation, representation and adaptation; translations are protected, but the term extends only fifteen years after the death of the translator. The assignment of publishing right does not include playright unless specifically stated. Reprint of periodical articles, unless forbidden, and extracts from books "in case of urgency or to the end of public utility," may be made on acknowledgment of the source. Reprint of works out of print may be licensed by the Ministry of Public Instruction. Registration is requisite with deposit of three copies, in the case of reproduced works, with the Ministry of Public Instruction, at Constantinople, or in its provincial offices on written application and a fee of a quarter of a Turkish pound, for which a certificate is issued. An annual publication of the copyright entries is provided for. The law is not in terms confined to Turkish subjects, but it may by the nature of Turkish legislation apply only within the Turkish Empire, though there seems to be hope that Turkey may adhere to the Berlin convention. Turkey is otherwise without international relations.
{Sidenote: Japan}
Japan, the only oriental power which is a unionist country, adopted a general copyright code in 1899 (March 3, as applied by ordinances of June 27 and 28), modifying a law of 1877, and in the same year (July 15) ratified the Berne-Paris agreements and became a member of the International Copyright Union. Amendatory acts were adopted in 1910, on June 14-15, broadening the scope to include architecture and providing as to details of registration. Under domestic legislation first publication in Japan is the only requisite for copyright, but registration must be made in the Ministry of the Interior before action for infringement can be brought, and by disclosure of name to obtain the full term for anonymous and pseudonymous works. Registrations are printed in the official gazette. Protection is for life and thirty years, or thirty years for anonymous, posthumous and corporate works. The right of translation is protected for ten years, and translations are protected for the full term; photographs for ten years only. Titles are protected in copyrighted works, but not general titles. Periodical contributions must be protected by notice. Japan accepted the convention of Berlin with reservations as to the exclusive right of translation, in which it adheres to Article V of the Berne convention as revised at Paris, and as to the public performance of musical works, in which it adheres to Article IX of the Berne convention. Japan has treaties with China (1903) and with the United States (November 10, 1905, "proclaimed" May 17, 1906), which, however, excepts translations, and also special treaties of August 11, 1908, covering Japanese protectorates in Korea and China.
{Sidenote: Korea}
Korea was formerly without copyright provisions, except as given by the above-named treaty and similar British provisions as to the consular court at Seoul, but since it has become practically a Japanese possession, it has been included by Japanese ordinance of 1908 under Japanese copyright law.
{Sidenote: China}
China promulgated, December 18, 1910, its first domestic copyright provisions, establishing a term of life and thirty years, on condition of registration by deposit of two copies at the Ministry of the Interior or corresponding provincial office, with a fee of five dollars. The protection does not include the exclusive right to translate foreign works into the Chinese language, although individual translations may be protected. Photographs, unless included in writings, are protected only for ten years from date of registration. These provisions require approval to be made effective. China has a treaty with Japan (1903) and one of like date (October 8, 1903) with the United States, effective from January 13, 1904, protecting for ten years books, maps, prints, or engravings, "especially prepared for the use and education of the Chinese people" or "translation into Chinese of any book," but Chinese subjects are to have liberty to make "original translations into Chinese," so that the treaty affords little protection. By treaty with Japan (August 11, 1908) Japan's copyright protection is extended where it has extraterritorial jurisdiction, as in Canton and other places in China. By British Orders in Council of 1899, 1907, copyright protection against infringement by a British subject may be afforded by the consular court at Shanghai to foreign as well as British suitors under specified conditions.
{Sidenote: Siam}
Siam passed a literary copyright law in 1901, giving identical rights with those in any other property for life and seven years, or for forty-two years, whichever the longer, on the conditions of printing and publication within the country, registration within a year and deposit of four copies. Siam has no treaty relations, but works printed and first published there possibly would have the benefit of the law. British copyright protection is also extended through British consulates.
{Sidenote: Asia otherwise}
Persia and other native-governed countries seem to have no copyright protection, although Persia was represented at the Berlin conference. Copyright provisions in British India, Ceylon and the other Asian colonies is covered in the preceding chapter on the British dominions. The Dutch East Indies have copyright protection under Dutch law, and Indo-China under French law. The Philippine Islands, like the Sandwich Islands (Hawaii), have copyright protection under United States law.
{Sidenote: Tunis, etc.}
Tunis, a protectorate of France but not a French colony, long the only unionist country in Africa, has domestic protection under its law of 1889, following in general that of France, with a term of life and fifty years. It was one of the original parties, as a separate power, to the treaty of Berne, accepted the Paris acts and ratified the Berlin convention with reservation, September 30, 1910, like France, as to works of applied design, in which it adheres to the stipulations of the previous convention; it has no other foreign relations. Algiers, a French colony, is under French law and international relations. Morocco and other native states seem to be without copyright protection.
{Sidenote: Egypt}
Egypt, under the protectorate of Great Britain but not a British possession technically, is without domestic legislation, except that its penal code of 1884-89 forbids piracy, and it is not included under British relations. But under a crude sort of customary law and this penal code, the courts enforce rights of foreigners as well as of natives by the protection of their works for an indefinite term. The rights of French citizens in plays and music have been enforced through the French consular court, and in recent years the mixed courts at Cairo and the Court of Appeal have exercised copyright jurisdiction, "under the principles of natural justice and the laws of equity." In the leading case of the Societe des gens de lettres v. Egyptian Gazette, in 1889, the Court of Appeal laid down the principle that "copyright is a veritable right of property founded on labor," and on this ground has upheld the right of literary, dramatic and musical authors and of artists to prevent reproduction.
{Sidenote: Liberia}
Liberia seems to have no domestic copyright law recorded, and probably protection, national and international, is under customary law without formalities. It was represented as an independent power at the Berne convention and signed the original convention, but never became a party to it by ratification; it, however, adopted the Berlin convention by ratification and is now a member of the International Copyright Union.
{Sidenote: Africa otherwise}
The Congo Free State seems to cover copyright offenses by its extradition treaties with Belgium (1898) and France (1899) to the extent of including in the list of offenses fraudulent application to any art object or work of literature or music, of the name of an author, or any distinctive sign adopted by him.
Copyright provision in South Africa, Sierra Leone and other British colonies is covered in the preceding chapter on the British dominions.
{Sidenote: Latin America}
In Latin America provision for copyright protection had generally been made by the several states, for various terms, in some cases in perpetuity, previous to a movement for international relationship which began with the Montevideo convention of 1889, for South American states only, reached a further step in the convention of Mexico City, 1902, was not substantially advanced by the amendatory treaty proposed at Rio de Janeiro, 1906, which never became practically operative anywhere, and culminated in the Buenos Aires convention of 1910, which was ratified by the United States Senate February 16, 1911, but has yet to be ratified by the Latin countries. Five South American states are bound together under the Montevideo convention as ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892).
The United States has relations with Mexico (1896), Costa Rica (1899), Cuba (1903), Chile (1896), and by ratification in 1908 of the Mexico convention of 1902, with Costa Rica, Guatemala, Honduras, Nicaragua, Salvador and possibly Dominican Republic, and will come into relations under the Buenos Aires convention of 1910, with any power ratifying that convention.
{Sidenote: Mexico}
Mexico, under the guarantees of property in its constitution of 1857, and the specific and elaborate copyright provisions of its civil code of 1871, as modified by that of 1884, grants copyright in perpetuity and playright for life and thirty years as the general term, with complicated modifications and exceptions. In the case of anonymous and pseudonymous works, rights in perpetuity are to the publisher and his successors, pending disclosure of the author, who must record his name in a sealed envelope. The right of translation is protected in perpetuity except for works of non-residents published abroad, then limited to ten years. Corporate works are protected for twenty-five and official publications for ten years only. Registration is required through application to the Minister of Public Education and deposit of two copies is obligatory, one in the National Library and one in the Public Archives. A third copy is usually expected for the Library of the Ministry. The right to copyright holds for ten years from publication. Reservation is required of right of translation and of other specified rights, by notice on the printed work. Protection is conditioned on residence, reciprocity or first publication within Mexico. Private letters may not be published without consent of both correspondents or their heirs, except for proof of right or in the public interest, or for the progress of science. Mexico does not seem to be a party to any convention, not even that of Mexico City, but has had reciprocal relations with the United States as a "proclaimed" country since February 27, 1896, and has treaties with the Dominican Republic (1890) and Ecuador (1888), and with Belgium (1895), France (1886), Italy (1890), and Spain (1903), all on the "most favored nation" basis. To obtain Mexican copyright, it seems necessary to execute a power of attorney, validated by a Mexican consul, to a representative in Mexico City for the registration and deposit at the Ministry.
{Sidenote: Central American states: Costa Rica}
{Sidenote: Guatemala}
{Sidenote: Honduras}
{Sidenote: Nicaragua}
{Sidenote: Salvador}
Of the five nations of Central America, Costa Rica, under penal and civil codes of 1880 and 1888 and a copyright law of 1896, grants copyright, including playright, for life and fifty years, with provisions for return to heirs after twenty years and other variations after the Spanish model, on registration and deposit within a year of three copies of a printed work at the office of Public Libraries, on condition of residence or reciprocity. Guatemala, under a decree of 1879, grants copyright for literary works in perpetuity on registration and deposit of four copies at the Ministry of Public Education to "inhabitants of the Republic,"--with the curious provision that an assignee cannot prevent republication with "essential modifications" by the author. Right of translation must be reserved by notice. A sealed envelope with name of author must accompany an anonymous book. Honduras, under its constitution of 1894, has provisions in its civil and penal codes of 1898 guaranteeing to an author of a literary, scientific or artistic work the general property rights, pending passage of a copyright law and punishing fraud by "minor banishment." Nicaragua, under its civil code of 1904, grants copyright in perpetuity on registration and deposit of six copies with the Ministry of Agriculture. Right of translation must be reserved by notice. Salvador, under its constitution of 1886 and law of 1900, grants copyright on works published in Salvador for life and twenty-five years, or for corporate works fifty years from publication on deposit of one copy with the Minister of Agriculture before publication, with the exceptional provision that if the heirs renounce their rights or fail to make use of them within a year from the author's death, the work falls into the public domain; the translator of a Latin or Greek work is protected as an author, and the government may grant five-year licenses for the reprint with author's permission of "interesting works," presumably those published elsewhere.
{Sidenote: Interstate and international relations}
In 1894-95, and again in 1897-1901, interstate treaties, incidentally covering copyright, were negotiated; but interstate and international relations are now covered by the participation of the five nations, as well as the United States and the Dominican Republic, in the Mexico convention of 1902 and by the treaty of peace made by these five Central American states at Washington, December 20, 1907. There is some question under the treaty of 1907 whether protection is assured in each state to others than residents, but probably all citizens of the five states are protected throughout all. To secure protection under the convention of 1902, an American citizen should apply for an additional certificate from the U. S. Copyright Office for each country, which after validation by the State Department is sent with one deposit copy for each country to the respective American legations, through which official acknowledgment will be returned. Costa Rica has had reciprocal relations with the United States as a "proclaimed" country since October 19, 1899, and has treaties with France (1896) and Spain (1893); Guatemala with France (1895) and Spain (1893), the latter on the "most favored nation" basis; Nicaragua with Italy (1906); and Salvador with France (1880) and Spain (1884).
{Sidenote: Panama}
Panama grants copyright under the constitution of 1904, which adopted and made part of Panamanian law the Colombian copyright law of 1886, which is summarized in the paragraph on Colombia. The Canal Zone is under United States law through a War Department order of 1907.
{Sidenote: Cuba}
Cuba, which as a Spanish colony came under the Spanish act of 1879, has domestic protection under this act as applied by four military ordinances, 1900-1902, during the United States protectorate, and continued under its insular government. In the third ordinance, of June 13, 1901, it was provided that existing copyrights under the Spanish law of 1879 should be valid during their term, and also that copyright as well as patents granted by the United States shall have insular protection on deposit of a copy of the certificate. Registration is made at the Registry in the Department of State within one year of publication, accompanied, if a foreign work, by certificate of copyright in the country of origin, and deposit should be made of three copies for preservation in the National Library, the University and the Public Archives. On these conditions, under the military ordinance of 1900, authors of foreign scientific, artistic and literary works or their agents or representatives enjoy protection in the case of new works. Regulations of 1909 prescribe the forms of application for domestic and for foreign works. To claim Cuban copyright, an American should obtain an attested copy of the copyright certificate and transmit this, with a power of attorney in Spanish validated by a Cuban consul, and three deposit copies, to a representative in Havana, who must deposit the certificate with an attested Spanish translation and the three copies at the Registry. Copyrights by Spanish subjects previous to the treaty of peace with the United States, ratified in 1899, remain valid by virtue of a specific article in the treaty. Cuba has been in reciprocal relations with the United States as a "proclaimed" country since November 17, 1903, and has a treaty with Italy (1903) on the "most favored nation" basis. It is reputed to have ratified the Pan American convention of 1902, but possibly only the industrial treaty.
{Sidenote: Haiti}
Haiti, which gave copyright protection as early as 1835, adopted in 1885 a copyright law with some unusual features. An author holds exclusive right during life; the widow through her life; the children for twenty years further, or other heirs, if there are no children surviving, for ten years. Unauthorized reprints are confiscated on the complaint of the proprietor of the copyright; and the author recovers from the reprinter the price of a thousand, or from a bookseller of two hundred copies, reckoned at the retail price of the author's edition. Deposit is required of five copies within twelve months from publication at the Department of the Interior. Haiti has the unique distinction in Latin America of being a unionist country; it was originally a party to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation. It has no relations with the United States and no treaties.
{Sidenote: Dominican Republic}
The Dominican Republic provides copyright protection under its constitution of 1896, has a treaty with Mexico (1890) on the "most favored nation" basis, and ratified the Pan American convention (though possibly only the industrial treaty) of 1902, June 15, 1907.
{Sidenote: West Indian Colonies}
Jamaica and the other British islands and colonies along the Atlantic and Caribbean seas have copyright protection under imperial and to some extent local laws, as already noted; Porto Rico is under the provisions of United States law and the Danish and Dutch West Indian colonies are under the respective laws of their nations.
{Sidenote: Brazil}
Brazil, under the constitution of 1891 and the law of 1898 and regulations of 1901, grants copyright for the general term, inclusive of photographs, of fifty years from the first of January of the year of publication, with a term of ten years for the right of translation and playright. Posthumous works are protected within fifty years from the death of the author. Assignments are valid only for thirty years, after which copyright reverts to the author. Written application for registration is requisite at the National Library, and deposit of one copy of a printed book or play must be made there within two years. Reservation of royalty for playright must be made on a printed work. Protection is confined to a native or resident or a Portuguese author of a work written in Portuguese--the latter in accordance with a treaty of reciprocity with Portugal (1889), the only treaty.
{Sidenote: Argentina}
Argentina, which under its constitution of 1853 and civil code of 1869 protected an author's productions as general property, adopted in September, 1910, a copyright law, as an application of common law, providing for a term of life and ten years, or in the case of posthumous works twenty years from publication. Protection is comprehensive of all classes of intellectual property, and extends to all forms of use without special reservation. By Presidential decree of February 4, 1911, a Section of Library deposit was established as a division of the National Library. Registration is required by deposit of two printed copies or of an identifying reproduction within fifteen days from publication for works published in the capital, or thirty days in the provinces, this including foreign works published within the country, publication meaning the offering for sale therein. The law specifically applies to authors of other countries with which Argentina has international relations, deposit in Buenos Aires being then not required where the formalities of the country of origin have been fulfilled. Argentina's international relations are dependent chiefly on the Montevideo convention of 1889, as ratified by Argentina with respect to Paraguay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to Belgium in 1903, France in 1896, Italy and Spain in 1900.
{Sidenote: Paraguay and Uruguay}
Paraguay and Uruguay, like Argentina, long protected intellectual property as general property. Paraguay's constitution of 1870 secures exclusive property to an author, and a new penal code, promulgated in 1910, assures copyright on all classes of intellectual property, on registration in the public registries with prescribed fees, and punishes piracy by fine of double the profit and imprisonment. Uruguay in its civil code of 1868 declared that the productions of talent or intellect are the property of their authors, to be regulated by special law, but no such law has been passed. Both countries have relations with the other South American states parties to the Montevideo convention of 1889; Paraguay has also the same relations as Argentina with the European countries above cited. The statement that Paraguay is a party to the Mexico City convention of 1902 seems a misapprehension arising from the fact that her representative signed ad referendum.
{Sidenote: Chile}
Chile, under the constitution of 1833 and law of 1834 and its civil code of 1855 and penal code of 1874, protects copyright including playright for a general term of life and five years thereafter, which may be extended an additional five years, except for playright, by action of the government, corporate works for forty and posthumous works for ten years. Deposit of three copies is required at the National Library in Santiago. Protection is extended to foreign works [first?] published in Chile; a Chilean-made edition of a work already published abroad may have protection for ten years. Chile has reciprocal relations with the United States as a "proclaimed" country since May 25, 1896; by a provision in the treaty respecting parcels post, piratical copies of works copyright in the country of destination are to be excluded. Chile ratified only the ineffective Rio convention of 1906.
{Sidenote: Peru}
Peru, under its law of 1849 and the constitution of 1860 and penal code, grants copyright including playright for life and twenty years thereafter. Anonymous and pseudonymous works may be protected for the full term by deposit of the true name in a sealed envelope. Posthumous works are protected for thirty years. Deposit is required of one copy in the public library and one copy in the department Prefecture. Protection is probably confined to an inhabitant of Peru, but Peru has reciprocal relations under the Montevideo convention as ratified October 25, 1889, with Argentina, Bolivia, Paraguay and Uruguay.
{Sidenote: Bolivia}
Bolivia, which protected intellectual property by its penal code of 1834, and later by a copyright law of 1879, adopted a brief copyright code, including playright, in 1909, providing a general term of life and thirty years, with the peculiar provision that the publisher of a work of unrecognized authorship hitherto unpublished may have protection for twenty years. Registration is required at the Ministry of Public Education and deposit of one copy of printed works must be made within one year of publication in the public libraries, in default of which the work falls into the public domain. Bolivia has reciprocal relations under the Montevideo convention as ratified November 5, 1903, with Argentina, Paraguay, Peru and Uruguay, and also international arrangements with France (1887).
{Sidenote: Ecuador}
Ecuador, under the constitution of 1884 and law of 1887, grants copyright for life and fifty years, and playright for life and twenty-five years. Anonymous and pseudonymous works are protected fifty years beyond the death of the publisher, unless the author meantime substitutes his name; posthumous works for twenty-five years. There are special provisions for terms of fifty years in the case of translations, adaptations, compilations, etc., and for twenty-five years for editions of works of undefined authorship. Registration is required with notice of reservation of playright within six months from publication or three months from performance of an unpublished play. Three copies of a printed work must be deposited with the registrar for the use of the Minister of Public Education, the National Library and the provincial library. Titles of periodicals are specified as copyrightable. Assignment must be registered to become operative. Protection is seemingly confined to a citizen of Ecuador, but it is expressly provided that a foreign author may assign right of translation or playright to a citizen of Ecuador, who may then prevent infringement. Ecuador has reciprocal relations with Mexico (1888), as also with France (1898, 1905) and Spain (1900), all on the "most favored nation" basis.
{Sidenote: Colombia}
Colombia, under the Constitution and law of 1886, and the civil code of 1873 and penal code of 1890, protects copyright, including playright, for life and eighty years, and for the legal existence of a corporate body, with the provision as in Spain respecting natural heirs. Registration is required within a year from publication or performance, at the Ministry of Public Education, with deposit of three copies, one for the Ministry and two for the National Library. If a work is not registered within the year, it falls into the public domain for ten years, but can thereafter be protected by registration within the succeeding year. Non-Colombian authors seem not to enjoy protection of the right of translation for a work printed in a country of foreign language. Colombia has treaties with Spain (1885) on the "most favored nation" basis, Italy (1892) and Switzerland (1908).
{Sidenote: Venezuela}
Venezuela, under the law of 1894 and penal code of 1897, protects copyright including playright in perpetuity, the publisher being considered the author in the case of anonymous and pseudonymous works pending legal proof of the identity of the author. In posthumous works protection is in perpetuity to the heirs or assigns. The right is secured by request to the district governor or state president for the issue of a patent with registry of title and verbal oath that the work has not been previously published within Venezuela or elsewhere; the patent certificate must be printed on the back of the title-page, and must be published at least four times in the official gazette. Deposit must be made of six copies at the Registry, two copies going to the Minister of Agriculture for the National Library. Protection is not specifically confined to Venezuelans, and seems to depend on first publication, but assignment to a citizen of Venezuela may be desirable. Venezuela has no foreign relations.
XXII
BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER
{Sidenote: Copyrights in their business relations}
Business relations, founded on copyright, are chiefly those between author and publisher. These relations involve questions, not so much of copyright law in itself, as of the law of contract and other statutory and common law provisions. There has been more or less desire on the part of authors to include business relations within copyright statutes, and in fact the recommendations of the American (Authors) Copyright League to the initial copyright conference of 1905 covered several points of business law, as for instance the right of an author to recover possession of his work from the publisher in case the publisher failed to keep it in print, or the right to prevent assignment of publication rights to a publisher unsatisfactory to the author. It was, however, determined, both in the conferences and by the Congressional Committees, to omit as far as practicable from the copyright law all questions of business relationship, and to leave these to specific contracts between author and publisher or to the general provisions of law. The law, whether as to copyright or other matters, should afford a basis of certainty for business, but it cannot wisely interfere with freedom of contract between the parties to a business transaction.
{Sidenote: The German publishing law of 1901}
{Sidenote: Editions}
{Sidenote: Alterations}
American and English statutes accordingly make no special regulation of the calling of publisher. Provision is, however, made in some continental countries for the regulation of publishing and publishers, as in Germany, where a law of June 19, 1901, passed coincidently with the general copyright code, covers this field in remarkable detail. It provides that the author, during the continuance of the publishing contract within the copyright period, may not reproduce or distribute the work otherwise than through the publisher, except in translation, dramatization (or if a play, novelization) or elaboration of a musical work which is not merely a transposition or arrangement. The author is privileged to include his work in a collected edition twenty years after publication, or an article from a collective work after one year; and the publisher may not republish in such form under the contract. Unless otherwise specified, the publisher is entitled to print only one edition, if undefined one thousand copies, in addition to extra copies for replacing damaged copies and not more than five per cent free copies; destroyed copies may be replaced on notice to author. Opportunity for revision must be afforded to the author in new editions. Alterations are permitted to the author before reproduction and at his expense during the progress of the work, but he cannot be charged for alterations necessitated by new circumstances. The publisher may not make alterations or abbreviation of text or title, except those to which the author cannot fairly refuse consent.
{Sidenote: Issuance of work}
The publisher must issue the work in suitable form in accordance with the customs of the trade and the character of the book, and immediately after receipt of the complete work or completed separate part. The publisher must take measures to keep the book in stock. He is not bound to produce a new edition, but if on request from the author he fails to do so, the publishing right reverts to the author. The publisher may cancel the contract, if the purpose of a work no longer exists, on payment of remuneration to the author. Proof for correction must be furnished to the author.
{Sidenote: Price and remuneration}
The publisher may fix and reasonably reduce the price, but can raise it only with consent of the author. If remuneration is not specified, an equitable payment is required, and the remuneration is due on the delivery or on the appearance of the work, or if determined by sale, then yearly, with opportunity to the author to verify the account from the publisher's books. The author is entitled to free copies to the extent of one per cent of the edition, but not less than five nor more than fifteen, and to additional copies at the lowest trade price. The author is entitled to return of his manuscript after reproduction, if stipulated at the beginning.
{Sidenote: Assignment}
The publisher may assign, in the absence of agreement, but not for separate works; though for this last, consent cannot unreasonably be withheld and may be presumed if the author does not reply within two months to a demand; and the assignee becomes, jointly with the original publisher, liable to the author for future performance of the contract. When a contract is completed by the issue of specified editions or copies, the publisher is bound to notify the author, and if the contract is for a definite time, the publisher is not entitled to distribute remaining copies after that time. In case of delay in the contracted delivery of the work, the publisher, after a reasonable extension of time, may decline the work, unless delay involves only insignificant loss; and in case the work is not of stipulated quality, the publisher may also cancel the contract or require damages for non-fulfillment. The author has analogous rights as against the publisher.
{Sidenote: Accidental destruction}
{Sidenote: Delivery}
If the work is accidentally destroyed after delivery to the publisher, the author is entitled to remuneration, but the contract terminates; but the author must, if practicable, rewrite it for additional remuneration or may reproduce it gratuitously and require publication. Like rights may be enforced by either party in case of destruction for which the other is responsible. Delivery is implied when the publisher is placed in position to accept the work. If the author dies after delivery of part of his work, the publisher may maintain his rights in the part delivered on specified notice to heirs; and if the author is absolutely prevented from completing his work, the publisher has like right to the portion already prepared. The author may withdraw from his contract before reproduction of his work or a new edition is begun, if justified by unforeseen circumstances, on remuneration of publisher's expenses; but if he publishes elsewhere within a year, he must also pay damages for non-fulfillment of contract to the original publisher, unless the latter has declined to resume the contract.
{Sidenote: Bankruptcy of publisher}
{Sidenote: Non-copyright work}
The relations of a publisher in case of bankruptcy are specifically treated, and the regulations of the civil code and general legal principles are specifically applied to cancellation of publishing contracts. On a non-copyright work, an author must not conceal from the publisher that he cannot transfer exclusive right of publication; but the author must act toward the publisher as though the work were copyrighted, at least until six months after publication.
{Sidenote: Articles in periodicals}
The law is made applicable to articles in periodicals or portions of collective works. An article in a newspaper is at the disposal of the author immediately after publication; an article in other periodicals after one year, unless exclusive continuing right has been sold to the publisher. A publisher is free to make usual alterations in an unsigned article. The author of an article may cancel his contract and obtain remuneration in case it is not published within a year after delivery, but damages can be claimed only in case a time of publication has been named by the publisher. The author of a newspaper article has no claim to free copies or special terms. In the case of a work planned by the publisher, or a collaborative, supplementary or collective work commissioned by the publisher, the publisher is not bound to reproduce and distribute the work. The law is made applicable in case the contract with the publisher is made by another than the author. Appeal is authorized to the Supreme Court of the Empire.
It is impracticable to cite all the details of this extraordinarily detailed law, but the provisions summarized afford a remarkable conspectus of German practice on business questions possibly arising between author and publisher, useful in relation to American and English practice.
{Sidenote: The publisher as merchant}
{Sidenote: "Outright" transfer}
The publisher is the merchant for the author, and the remuneration which he can pay to the author is limited by the price and sale which he can obtain from the book-buying public. The relation between author and publisher should be, as previously emphasized, most fully, clearly and specifically set forth in the initial contract. "Agreements between author and publishers," said Vice Chancellor Page Wood in 1857 in Reade v. Bentley, "assume a variety of forms. Some are so clear and explicit that no doubt can arise upon them. Thus, where an author assigns his copyright, the transaction is one which every person understands, and which leaves no room for uncertainty as to the rights of the parties." The work may indeed be transferred "outright" without written contract, by the delivery of the manuscript and payment of a bargained sum, in which case the publisher becomes the proprietor and may take out the copyright in his own name or that of the author, can assign the work and treat it entirely as though his own, except that he cannot alter it to the detriment of the author's reputation. But even in "outright" sale, a specific contract is desirable and is indeed necessary if the author is to agree with the publisher to apply for renewal and include the added period in the term.
{Sidenote: "Joint adventure"}
More usually, the contract between author and publisher is on the basis of a specified royalty--usual in America, or "half profits,"--more common in England, in which case the relation is not that of partnership but of a "joint adventure" terminable on notice unless it is made for a stated time, or for one or more editions, of a specified number of copies, or under other limiting conditions. In such case the expenses of publication may be borne by the publisher, or the author may pay for the plates or for the edition, and receive correspondingly larger return. Unless there is actual or constructive partnership, the publisher, and not the author, is liable for paper, printing, and like accounts. Or the publisher may be simply the agent of the author in manufacturing his book and selling for a stated commission. A contract of publication usually implies exclusive right, but an author may contract with several publishers under a license agreement; and on the compulsory license system, often miscalled the "royalty plan," he must permit any publisher, who will pay him the license royalty, to issue the work.
{Sidenote: Risk and profit}
It is by means of the profit on successful books that the publisher is able to take risks with new books and new authors. It has been said that of five books, three fail, one covers its cost, the fifth must pay a profit to cover the rest. The element of risk in the book business is, in fact, very large; if the author complains that his successful book ought not to pay for others' unsuccessful books, he can get over the difficulty by taking the risk himself.
{Sidenote: Long price and "net" price}
{Sidenote: Equities}
The publisher usually sells to the public through the retail trade at a stated retail price, which may be either long price, in which case the high price and large trade discount permit a discount to the public, or "net" price, a lower price with less discount, which the bookseller is expected to maintain. The practice of issuing books at "net" price is growing, in the belief that through this policy larger sales are made and the publisher's gains and the author's royalties fairly balance. On the average, the publisher probably gets less per volume than the author, and the system is essentially on an equitable basis. The publisher's larger returns come from the fact that he handles more books than any one author writes. The publisher has usually, in bargaining with the author, the advantage of larger experience and superior business ability, and of the fact that the author seeks him rather than he the author; but no law can better the author in these respects. As a matter of practice, the better publishing houses treat with new authors on the same basis as with old, through a standard form of contract.
{Sidenote: The literary agent}
The author sometimes employs the "literary agent" as an intermediary in finding a publisher, especially for a first book, and in making arrangements with the publisher, for which the agent expects a stated payment or a proportion of the author's returns. The advantages of such intermediaries are offset by many disadvantages, and the best publishing houses treat an author as liberally and fairly in direct as through intermediate relations. In any event, the contract should be made and signed directly between author and publisher, as a third-party contract, or a double contract between author and agent and agent and publisher, presents serious complication in the event of future differences. The agent should not be given any lien on future works by the author. The literary agent cannot accept conditions or make sale beyond the authority given him by the author, and an innocent publisher may be held responsible for acts beyond that authority, as in the English case of Heinemann v. Smart Set Pub. Co., in 1909, where the defendants had bought "serial rights" with leave to condense into one number, which the agent had no authority to grant.
{Sidenote: Usual American contract}
In the publishing contract usual in America, the author "grants and assigns" to the publishers the stated work, undertaking either to copyright it himself or authorizing the publishers to enter copyright in their name, or as his attorneys in his name. The contract usually includes all translations, abridgments, selections, dramatizations, etc., or specifically reserves those to the author, the publishers in the first case agreeing to share profits or otherwise remunerate the author on such special forms. The author is expected to guarantee that he is sole owner of the work and has full power to make the grant, that the work is not a violation of any other copyright and that it is free from scandalous or libelous matter.
{Sidenote: Publishers' obligations}
The publishers undertake to publish the work in such style as they deem best suited to its sale, at their own expense, unless the author contracts to pay for the plates or for other publishing costs, and usually agree to account for sales semi-yearly or yearly and to make payments within four months thereafter. The royalty is usually based on the trade-list (retail) price, on the cloth or ordinary binding, or the style of binding in which the largest number of copies shall have been sold. It is frequently stipulated that on paper-bound copies, or editions or copies for schools or subscription sale, or a foreign market, or otherwise sold at a reduced price, the royalty shall be reduced, and that on press and other free copies no royalty shall be paid. When an author pays the cost of the edition or pays for making the plates, he may contract to pay a commission to the publisher and obtain the balance for himself, or he may contract for a larger percentage of return to him than the usual royalty percentage. The publishers are usually authorized to permit the printing of selections and to arrange for translations, etc., subject to the arrangement indicated above. The author is expected to pay for alterations either in full or above a stated sum, as fifty dollars, and to provide any index or like equipment if required.
{Sidenote: Reversion of contract}
Insurance is not usually required from the publishers, but in case of fire or loss, the publishers have the option of reproducing the work, and if they decline to do so, the contract usually provides for reconveyance of the copyright to the author and the termination of the agreement after the sale of copies remaining on hand. A publishing contract sometimes provides that after a specified time from date of publication, as two or five years, if the publishers consider that the public demand does not justify continuing publication, or for other reasons, they may offer to surrender their publishing rights on compensation for the plates, as at half cost, and remaining copies, as at cost, and if the author does not elect to accept this offer, then the publishers may sell copies on hand free from royalty and terminate the agreement, the copyright reverting to the author. The publishers are usually authorized, in their discretion, to protect the copyright by legal proceedings at their expense or at joint expense of publishers and author.
{Sidenote: Scope of contract}
The contract may be for the full term of copyright, with or without obligation on the part of the author to provide for renewal, or for a stated number of years and thereafter until terminated on stated notice, or it may be for a specified number of editions or copies. It is often stipulated that on discontinuance, the author shall have the right to take over the plates at cost or half cost and remaining copies at cost, in default of which the publishers may sell copies free of royalty,--but not continue to use the plates. If the book contains illustrations not made originally for the work, the contract may provide that electrotypes of them shall be transferred to the author for use solely in connection with the work in case of reversion of the copyright to him. The contract is usually drawn subject to assignment by either party, but only as a whole; but the author may require that the work shall not be transferred, to another publisher or otherwise, without his consent.
{Sidenote: Other works of author}
The contract may also reserve to the author a right to discontinue the agreement in case the publishers elect not to publish other works, which he may offer to them, or it may bind the author to offer subsequent works to the same publishers. This keeps in view the ultimate publication of a uniform collected edition of the author's works, which may also be covered by a provision giving the author right to include his work in a collected edition after a stated time.
{Sidenote: Standard contract}
The above summary gives the pith of a standard form of contract which has been adopted, in more or less detail, by many American publishers, and is usually kept in printed form by them. Owing to the careful specifications in the American type of contract, there are fewer cases in the American than in the English court records referring to the relation between authors and publishers; and the English "half profits" custom naturally leaves many more open questions of law and equity.
{Sidenote: Serial rights}
Where there are serial rights to be considered, as in the case of a novel, the agreement between author and publisher should be very clear. If an author contracts for a serial with periodical publishers who are also book publishers, that contract should state whether rights for book publication are involved or whether the author is left free to arrange for book publication independently. Conversely, where an author contracts for book publication, the contract should be explicit as to whether the author or the publishers shall exercise or arrange for serial publication, either before or after book publication.
{Sidenote: Republication of periodical articles}
Where an author furnishes an article or series of articles for a periodical, it should be made clear, by letter or contract, whether the periodical publisher also obtains the right to republish such articles in other shape or whether such right reverts to the author, and if so, how soon after publication of the periodical.
{Sidenote: Foreign markets}
In these days of increasing international relations, it is important that the author should have a clear understanding as to whether he retains the rights in other markets, whether in English speaking or foreign countries; or conveys them to the publishers as within the agreement, but to be separately accounted for; or assigns them as an integral part of the transaction. As between America and England, many publishing firms have branch houses or representatives in the other country or are in special relations with an independent firm therein. If the English market is conveyed, there should be a clear-cut understanding as to whether this includes the Canadian, Australian and South African rights. It is usual that a lower royalty is paid to the author on sheets sold for another than the home market.
{Sidenote: Contract to do work}
The contract of an author with a publisher that he will write a specified book or work, is not usually enforceable by the courts through specific performance, for the simple reason that a court has no means of compelling an author to use his brain for a certain purpose, and the remedy against the author in this event is rather a suit for loss by failure to perform the contract, which loss is difficult to prove. If any remedy is to be provided, it should be stated in the contract as a specified penalty to be paid by the author,--a provision seldom included in publishing contracts. That an author may be held liable for a breach of contract if he declined without good cause to complete a work already partly delivered, was indicated in the early English case of Gale v. Leckie in 1817. An agreement to write a book may stand as an equitable assignment on the completion of the book, as was held in Ward, Lock & Co. v. Long, in 1906 in the Chancery Division by Justice Kekewich.
{Sidenote: Contract not to write}
An author who has contracted not to write on a stated subject or for other publishers, may be enjoined from such act. This was decided by early English precedents, as when in the case of Morris v. Colman, in 1812, Lord Chancellor Eldon held that Colman, in virtue of his contract to write plays for the Haymarket Theatre and for no other, could be restrained from furnishing plays to another theatre, though he could not be compelled to write plays; the same judge, in Clarke v. Price, held in 1819 that he could neither compel Price to continue to furnish Exchequer reports to the plaintiff publisher nor restrain him from furnishing such reports to another publisher, because the contract contained no specific provision to the latter effect. It is probable that the undertaking of an author not to prejudice the sale of his book by writing another of like subject, though under a different title, may be enforced even against a succeeding publisher who had no knowledge of that undertaking, as was indicated in Barfield v. Nicholson in 1824. Thus publishers were granted equitable relief against an author who had sold to other publishers modifications of an arithmetical series of which the copyright had been sold to the plaintiffs, in Wooster v. Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke v. Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from writing a certain book, on the ground that the court could not act until there was actual printing and publication. The publisher, vice versa, cannot be restrained from publishing a rival work, even though it competes directly with a work already published or contracted for, unless that is distinctly forbidden in the contract with the first author.
{Sidenote: Implied obligations}
If a publisher prints without special agreement a manuscript submitted for approval, the courts will enforce reasonable payment; and in 1893, in Macdonald v. National Review, in an English county court, it was held that printer's proof sent by the publisher to the author, implied acceptance for publication. That the publisher may be held responsible for loss of a manuscript by the negligence of his employees, was held in Stone v. Long, in the King's Bench Division, by Master Chitty in 1903. An implied obligation to publish an accepted work was recognized in the Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court affirmed in 1911 the decision that if a publisher withholds from publication a work of which he had bought the copyright "outright," the author might claim the work on return of the purchase money.
{Sidenote: Contract personal and mutual}
The contract between author and publisher is of a personal nature and therefore not assignable, in the absence of specific provision, except with consent of the other party. As it is with a particular author that a publisher contracts for a book, so an author contracts with a publisher of his choice and cannot be required to accept another. This is especially true where, on a profit-sharing or royalty arrangement, the author relies on the skill of the publisher for his market. Where E. V. Lucas had arranged with Grant Richards to publish a work on half profit, it was held in the Chancery Division in 1905 by Justice Warrington in a suit against the publishers' trustee in bankruptcy, that the contract was terminated by bankruptcy and that Mr. Lucas on fair purchase of the remaining copies, might contract with another publisher. There is more question when the contract is for a specified sum; and where the copyright is assigned by outright purchase the rule would not hold good, for the publisher then becomes the copyright proprietor. But even when a publisher has bought a copyright "outright," he may not do the author the wrong of printing the work in such altered shape as to injure the author's reputation, as was held in 1832 in the English case of Archbold v. Sweet, where a third edition of Archbold's legal work printed "with very considerable additions," which the plaintiff showed to contain gross blunders, was enjoined. But when work is done, to be published under the name of another, the actual writer may not prevent alteration by the employer, as was decided in Cox v. Cox in 1853, by the Vice Chancellor. Such a personal contract cannot be transferred as a bankruptcy asset, and on the bankruptcy of the publisher the rights revert to the author, except that stock on hand may perhaps be sold to another, who may not, however, distribute it to the disadvantage of the author. The personal contract involves personal guarantee by each party to the other of good faith and cooperative support, and neither party may act to the disadvantage of the other. The author, during the continuance of a publishing contract, must not permit the use of his work otherwise, to the prejudice of the original publisher, and the publisher must not sell copies to the injury of the future market of the author.
{Sidenote: English development of this doctrine}
This general doctrine was worked out in a chain of early English cases, the first of which was that of Sweet v. Cater, in 1841, where Vice Chancellor Shadwell decided that the plaintiff publisher who had contracted with Sir Edward Sugden to publish a tenth edition of 2500 copies of his legal work, could, until the specified copies were sold, prevent the publishing of another edition by the defendant publisher, despite any arrangements between the author and the latter. It was strongly upheld by Vice Chancellor Page Wood in the case of Stevens v. Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade v. Bentley, in 1857. In the first case Forsyth contracted for the publication of his legal work, undertaking to make future revision for subsequent editions, with the publishing firm of the elder Benning, and on its bankruptcy, four hundred copies of the second edition were sold to Stevens & Norton, which firm sued to prevent the younger Benning from publishing a third edition as revised by Forsyth. The Vice Chancellor held that though the plaintiffs might presumably sell the copies, if done without disadvantage to the author, the original contract was not an assignment, but a personal contract which could not pass to the plaintiffs, and therefore denied an injunction. In the second case, where Charles Reade sought to resume his rights in "Peg Woffington" and "Christie Johnstone," from his publisher Bentley, after all expenses had been paid and profits on several editions accounted for, the Vice Chancellor held that the contract, as of a personal nature, could be terminated by the author when that did not involve loss to the other party. Copies printed to replace others destroyed by fire were decided in the case of Blackwood v. Brewster, in 1860, in the Scotch Court of Session, not to constitute a new edition. In the later case of Hole v. Bradbury, in 1879, a joint author and the heir of a deceased joint author of "A little tour in Ireland" were adjudged by Justice Fry to be entitled to resume their rights and to recover the illustrations from publishers who had succeeded to the business of the original publishing firm.
{Sidenote: Author's transfer to other publishers}
In Warne v. Routledge, in 1874, where Mrs. Cook sought to transfer from one publisher to another without notice a book of which 44,000 copies had been printed and 42,000 sold, the plaintiff publisher sought to restrain the defendant from issuing a new edition until the remaining copies had been sold. Sir George Jessel, M. R., held that the right of publishing was an exclusive one for the time of the contract, though the word exclusive was not used, but that the author could provide for publication by another publisher immediately on terminating a contract,--a decision which has been criticized as not compatible with other decisions nor sound law.
{Sidenote: Proprietary name}
Where a proprietary name becomes identified with a publication, an assignment of the work may estop the person named from use of his name or advertisement of his service elsewhere, as in the English case of Ward v. Beeton, in 1875, where the originator of "Beeton's Christmas Annual," who had been dismissed by the publishers of that work, was restrained from advertising that he would edit a similar publication for another publisher. But the editor's name is not necessarily part of the title, and an editor may not restrain its omission from the title-page, as was held in the English case of Crookes v. Petter, in 1860.
{Sidenote: Copies remaining unsold}
It was decided in the English case of Howitt v. Hall, in 1862, by Vice Chancellor Page Wood, that where a publisher had procured from an author the copyright for a limited term, in that case four years, he had the right to sell, after the expiration of the contract term, copies printed in good faith within the term, though the court indicated that if there had been an excessive printing of the work with the evident purpose of stocking up for sale after expiration of the contract, such course would not be permitted. This precedent indicates that a publisher would have the right to sell copies printed during the original term of copyright and remaining in stock, even if an author under the renewal provision of the American code exercised the right to make arrangements with another publisher for the renewal term. To like effect it was decided in the English case of Taylor v. Pillow, in 1869, by Vice Chancellor James, that a copyright proprietor assigning the copyright might thereafter dispose of copies of a song remaining unsold, in the absence of stipulations to the contrary. These questions are usually decided in advance in American publishing practice by provision in the contract between author and publisher that copies remaining unsold at the end of the contract term may be reclaimed by the author at a stated price--and some such provision is always desirable.
{Sidenote: American confirmation}
The same doctrine was upheld in the American case of Pulte v. Derby, in 1852, in the U. S. Circuit Court by Judge McLean, who held that where the contract for publishing a second edition provided that the publishers might print as many copies as they could sell, the publishers might make successive printings in that edition, and that the use of the words "third edition" on the title-page did not terminate the arrangement. The author could not meantime publish otherwise, but the publishers, who held legal title to the copyright within the terms of the contract, could not exercise rights beyond the second edition, nor could they assign their rights.
{Sidenote: Renewal term}
American publishers usually expect the author to make a contract for the entire copyright period, and to make application in their behalf for the renewal term. It is true that the very large percentage of books lose their value long before the close of the original term, and that the percentage where renewal is desirable is very small.
It was a thought to which "Mark Twain's" mind often recurred that a long copyright term was not desirable, because so few books were of value at the end of one or two decades, and he frequently put forward a scheme for extending copyright from period to period, based on the issuance of a cheap edition under the author's sanction. This scheme, which he presented in some detail at the time of the Congressional copyright hearings, did not receive support from other students and advocates of copyright.
{Sidenote: License not assignment}
A contract giving publishers the "whole and exclusive right of publication," was decided In re Clinical Obstetrics by the Chancery Court, through Justice Warrington, in 1908, to be a personal contract and license, not an assignment of copyright, and the assignment entries were ordered to be expunged, in line with the decision in 1907 by the Court of Appeal in Re "The Liedertafel series" et al.
{Sidenote: Author's and publisher's profits}
The publication of a book involves many indirect expenses, in addition to the direct cost of manufacture, such as the share of general office expenses, the large item of advertising and the like. These are difficult to allot, and this helps to make the "half profits" system a fruitful occasion of disagreements. On this system or on the commission basis, the nature and proportion of these indirect charges should be clearly set forth in the publishing agreement. On a "half profit" or similar plan, the publisher is not considered to be entitled to make his own profit on paper, printing, etc., but must account for these at the cost to him; and in any event the publishers' accounts must be fully open to the author. On the whole, the payment of royalty, on the usual American plan, is more satisfactory. The customary royalty is ten per cent, or in the case of authors of established reputation whose works have large sale, as high as fifteen or twenty per cent, when the publishers cover all expenses, except that on school books and "subscription" editions the royalty is usually five per cent. When an author pays for the plates or for the edition, the return is substantially higher, as fifteen or twenty per cent to the ordinary author. The royalty is usually reckoned on ordinary cloth binding, unless otherwise stated in the contract, and almost invariably not on copies printed, but on copies sold. A royalty on "all copies sold" was construed in the King's Bench Division by Justice Walton, in Neufeld v. Chapman in 1901, to cover all forms of publication, including royalty on a proportionate part of the sales price of a periodical.
{Sidenote: The publisher's share}
The publisher does not, as is sometimes assumed, get the other ninety per cent as profit; he gets the difference between the receipts from the trade or public on copies actually sold--averaging perhaps two thirds of the "retail price," on which the author's ten per cent (really thus fifteen per cent) is reckoned--and the cost of making the entire edition and of advertising and marketing the book. The author, in any event, gets a return proportioned to the success of his book. If its sales are small, the publisher makes a loss; if large, the publisher makes a profit increasing proportionately after the initial outlay for publication has been covered.
{Sidenote: "Author's editions"}
{Sidenote: Printer's lien}
When an author arranges with a publisher or printer to issue a book at author's expense, such editions being usually known as "author's editions," great care should be taken to make such arrangements only with publishers or printers of known and high character and to base them on a complete and exact written contract, defining particularly the amount of commission or royalty to be paid by or to the author, or the expenses to be allowed before reckoning "half profits." Publishers of good repute make such arrangements in the case of books not likely to show adequate commercial profit, but there are publishers and printers who make a business of such transactions with authors without adequately providing to give the author the best possible market, and these cannot always be expected to deal fairly with him. Arrangements made directly between an author (or publisher) and a printer as such, are scarcely within the scope of this work, but it may be said briefly that a printer usually has a mechanic's lien on plates he has made or sheets he has printed (but not on plates used by him unless he has made them), until the bills are paid; and that he may not demand payment until the work has been completed, or in case of its destruction by fire or otherwise, previous to complete delivery, in the absence of contract obligation for advance or partial payment.
{Sidenote: Compulsory license system}
The compulsory license system, often miscalled "the royalty plan,"--discussed in England in 1877 as the Farrer proposal and in America about 1890 as the Pearsall-Smith scheme,--is provided by legislation under which any publisher may publish a work without consent of the author provided he pays a royalty as specified or stipulated in the law, as ten or five per cent or a fixed sum per copy. This system has unfortunately been adopted in the new American code, with reference to the mechanical reproduction of music, though with the saving clause that the author has complete right to forbid mechanical reproduction of his musical composition so long as he does not license any manufacturer. This American precedent has been followed as to mechanical music in recent legislation by Germany and other continental countries and in the modified British measure. The Italian copyright law has, however, a compulsory license provision for the second forty years of copyright, under which any publisher can issue a book on payment to the author of five per cent royalty; and the new British measure contains a like provision applicable twenty-five or thirty years after the author's death, on a basis of ten per cent royalty.
{Sidenote: License payments}
The American provision is for two cents for each roll, under elaborate regulations, as set forth in the chapter on mechanical music provisions. It is doubtful whether those regulations can be effectively applied, and indeed the whole provision may prove unconstitutional because of its interference with the right of sale or license involved in private property. The several substitutes for these regulations proposed and discussed, were rejected as even less desirable--as the proposal that the Copyright Office itself should undertake an elaborate system of accounting and guarantee to the author as practically a ward of the state, and another proposal for a system of stamps to be affixed to each copy published, supplied by the Copyright Office or the author and sold to the publisher, a system actually in practice in shoe manufacture under the royalty system of the McKay Shoe Manufacturing Company. The answer to all these schemes is that the author should be at liberty to make such arrangements, by contract with one publisher or with many, as he may please, and that a law to compel him to adopt any one plan of marketing his wares would interfere with his freedom of choice and his natural return.
{Sidenote: Saving through single publisher}
The reason that an author chooses one publisher instead of many is the simple one that the original cost of making and advertising a book is in this way reduced to one outlay instead of multiplied in many, and that this cost is minimized by being distributed over the largest possible edition. It is the practice of any successful publisher to plan for such an edition as will command the widest sale, and so distribute the original cost over as many copies as possible, and when a copyright book proves to be of such general demand that different styles of editions can be sold, such editions are in fact made by the same publisher. The compulsory license system would only protect the public against the unwisdom of publishers, whose mistakes are presently corrected by business failure or by the transfer of his books by the author to more enterprising houses.
{Sidenote: Copyrights in bankruptcy}
Copyrights are specifically included, with patents and trade-marks, in the bankruptcy acts as assets which pass to the trustee, which applies to a bankrupt author as well as to other copyright proprietors, but as previously stated, this does not include the personal contract for the publication of an unassigned work. This last doctrine was fully upheld in the English case of Griffith v. Tower Pub. Co. & Moncrieff, in 1897, by Justice Stirling, where the liquidator of a corporation was enjoined from transferring a copyright direct to a publisher not acceptable to the author. A manuscript as such is a tangible asset in bankruptcy if of value in itself, but the right of the author to copyright or to publish his manuscript is a personal and not a property right, which therefore does not pass in case of bankruptcy, and a court would probably not undertake to compel an author to realize the value of an unpublished work for the benefit of creditors by publication and copyright. Nor may a bankrupt author be compelled in bankruptcy process to complete his work, as was decided in 1841 in the English case of Gibson v. Carruthers.
{Sidenote: Copyrights in taxation}
Copyrights, like patents, are subject to the inheritance tax, as capitalized on the basis of income. In the appraisal of 1911 of the copyrights of Mrs. Mary Baker G. Eddy, author of "Science and health," and other Christian Science books, the valuation returned for tax purposes reached $1,400,000, which is probably the largest valuation ever put upon the copyrights of any one author. The copyrights of the late Marion Crawford were appraised by the New York State tax authorities, in the same year, by valuing his last novel at the income during its first year of publication and his earlier novels at the income for three years passed. Neither method afforded a fair valuation, as a work may be dead after its first year, and the test by income through successive years would depend on whether sales were decreasing or increasing during the period. Standard school books are sometimes estimated as worth three years' income, but such a generalization would not apply in other cases. Each valuation, for tax or sales purposes, must depend upon the circumstances in each case. An inheritance or other tax on copyrights, which are intangible property, may fairly be questioned, in view of the uncertainty whether the legatees may realize any future return from the property.
XXIII
THE LITERATURE OF COPYRIGHT
{Sidenote: Bibliographical materials}
The literature of copyright is extensive and its bibliography would now make a volume in itself. The bibliography of literary property prepared by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg volume of 1886, occupying sixty pages, covered approximately fifteen hundred titles, besides analytical indexes to several periodicals. The bibliography to the present date, inclusive of that material, which Register Solberg has continued, would increase this record at least twofold. The copyright campaign resulting in the code of 1909 was especially prolific of drafts and bills, Congressional and other reports and private publications, of which "dry as dust" indication is given in the earlier chapter containing the record of that campaign. Nothing more can be attempted in this chapter than a brief glance over historical material and leading works.
{Sidenote: Early history}
The early history of copyright is to be traced only through incidental references in classical and medieval works. Among these may be instanced Montalembert's "Monks of the West" and Brown's "History of the printing press in Venice," previously cited. George Haven Putnam's work on "Books and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2 v., 459, 538 p.), though dealing chiefly with publishing relations, incidentally gives much information on the early history of printing privileges and copyrights proper. Several of the law book writers, notably Copinger, summarize in some measure the early history of copyright.
{Sidenote: Early American contributions}
Perhaps the earliest American publication distinctively on copyright was the "Remarks on literary property," by Philip H. Nicklin, in 1838, in which he included as an appendix a reprint of Joseph Lowe's summary of copyright history and practice up to 1819, from the Encyclopaedia Britannica supplement, and argued for longer, if not perpetual copyright for our own authors, on the plea that "charity begins at home," as well as for international copyright throughout a world-wide republic of letters. The later movements in America for international copyright brought out much writing, though largely in periodical articles and pamphlets, among the most noteworthy of which were Dr. Francis Lieber's letter "On international copyright," of 1840, Henry C. Carey's "Letters on international copyright," of 1853, and "The international copyright question considered," of 1872, George Haven Putnam's monograph on "International copyright," of 1878, and Richard Grant White's "American view of the copyright question," of 1880.
{Sidenote: Later American pamphleteers}
During the copyright campaign leading to the act of 1891, several pamphlets were issued on behalf of the American (Authors) Copyright League, notably Rev. Dr. Henry van Dyke's "National sin of piracy," of 1888, and Prof. Brander Matthews's "Cheap books and good books," on the texts of James Russell Lowell's epigram, "There is one thing better than a cheap book, and that is a book honestly come by," and George William Curtis's words, "Cheap books are good things, but cheapening the public conscience is a very bad thing,"--which last paper is reprinted in Putnam's "Question of copyright."
{Sidenote: American treatises}
The leading American law book writer has been Eaton S. Drone, later editor of the New York Herald, whose valuable "Treatise on the law of property in intellectual productions in Great Britain and the United States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered comprehensively the general copyright legislation of 1870-74, and superseded the earlier standard American law book, George Ticknor Curtis's work of 1847, "Treatise on the law of copyright ... as enacted and administered in England and America." The volume on "Copyright, its law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y. Publishers' Weekly, 1886, 8vo, 136 p.), the latter furnishing the bibliography of copyright, included facsimile of the autograph signatures in the memorial of American authors of 1885, and a reprint of Sir James Stephen's digest of British copyright law, as well as the revised statutes, constituting the copyright law of the United States at that time. "The question of copyright," by George Haven Putnam (N. Y., Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the important documents and articles, including the text of the act of 1891. A valuable digest of "Copyright cases, 1891-1903," American and English, was compiled by Arthur S. Hamlin for the American Publishers Copyright League (N. Y., Putnams, 1904, 8vo, 237 p.).
{Sidenote: Copyright Office publications}
The most valuable series of current publications on copyright are those issued from the Library of Congress by the Copyright Office, under Register Solberg's administration. The most important of these series is that of Copyright Office Bulletins issued at irregular intervals, of which No. 14 presents the current copyright law and No. 15, issued in 1910, gives the "Rules and regulations for the registration of claims to copyright" under the new law. No. 3, as issued in a second edition in 1906, contains the full text of "Copyright enactments of the United States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress, 1789-1904," contains a bibliographical and chronological record of all proceedings in Congress. Several bulletins were issued during the preparation of the law of 1909, of which the most important was No. 9, giving the "Provisions of the United States copyright laws with a summary of some parallel provisions of the laws of foreign countries." No. 5 covers copyright in England, presenting the full text of copyright acts from 1875 to 1902, including and supplementing Sir James Stephen's digest of British copyright law; No. 6, "Copyright in Canada and Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force" up to 1904; No. 11, "Copyright in Japan" up to 1906; and No. 13, the documents of the International Copyright Union, including the Berlin convention of 1908. Bulletins No. 1 and 2 cover the former copyright law and directions for registration under it. Many of these bulletins are already out of print. A minor series is that of Information circulars, of which forty-five have been published, many of them now out of date and superseded, covering from time to time current information as to laws, proclamations, treaties, etc., domestic and foreign, as well as opinions of the Attorneys-General, custom regulations and the like.
{Sidenote: Labor report}
A report on the effect of the international copyright law by the Commissioner of Labor, Carroll D. Wright, was presented to the Senate in 1901.
{Sidenote: English contributions about 1840}
Copyright literature in England is too extensive for more than brief reference here. "The great debate," led by Serjeant Talfourd on one side and Lord Macaulay on the other, is recorded in Hansard's Parliamentary Debates (third series, volume LVI of 1841), and the speeches of the two combatants are reprinted in their respective works. John James Lowndes's "Historical sketch of the law of copyright" was printed in 1840, with especial reference to Serjeant Talfourd's bill, and contained an appendix on the state of copyright in foreign countries--America, France, Holland and Belgium, the German states, Russia, Denmark, Norway and Sweden, Spain, and the Two Sicilies. "A plea for perpetual copyright," by W. D. Christie, was also put forth in 1840. Carlyle's caustic "Petition on the copyright bill" is included in his "Critical and miscellaneous essays."
{Sidenote: Later English contributions}
Among the later noteworthy contributions to the subject were the caustic denunciation of international piracy by Charles Reade, the novelist, under the title "The eighth commandment," reprinted in America by Ticknor & Fields, in 1860; Matthew Arnold's Fortnightly article of 1880, on "Copyright," printed in the volume of his collected works containing his "Irish essays"; John Camden Hotten's seven letters on "Literary copyright," in a volume of 1871; and Walter Besant's volume "The pen and the book," of 1899, containing a special chapter on copyright and literary property by G. H. Thring, Secretary of the British Society of Authors. Herbert Spencer made several contributions to the subject, some of which were reprinted in his "Various fragments."
{Sidenote: English legal treatises}
There had been published, so early as 1823, the first edition of Richard Godson's "Practical treatise on the law of patents for inventions and of copyright," which was immediately translated into French and became the standard English work, being supplemented in 1832 with an abstract of the laws in foreign countries and republished in a second comprehensive edition in 1840 by Saunders & Benning, London; in 1844 this second edition, with a supplement covering the recent laws, was reissued by W. Benning & Co., in an octavo of 700 pages, and in 1851 a separately published supplement by Peter Burke brought Godson's work up to that date. Another early English law book was Robert Maugham's "Treatise on the laws of literary property, comprising the statutes and cases; with an historical view and disquisitions," published by Longmans in 1828. The standard work of W. A. Copinger on "The law of copyright, in works of literature and art," first published in 1870 and reissued in a fourth edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo, 1155 p.), includes as well as English and American decisions, chapters on international copyright and on copyright in foreign countries, with full text of English and many foreign statutes, and many legal forms. A work by J. H. Slater covered "The law relating to copyright and trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a digest of the more important English and American decisions. The writer of the York Prize Essay of the University of Cambridge for 1882, T. E. Scrutton, rewrote and extended his work under the title of "The law of copyright," later continued into a fourth enlarged edition (London, Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study of "The law of copyright" in 1896.
{Sidenote: Birrell's lectures}
Augustine Birrell, as Quain Professor of law at University College, London, delivered a series of lectures in 1898, of which seven were printed in his delightfully readable little volume on "The law and history of copyright in books" (London, Cassell, 1899, 12mo, 228 p.).
{Sidenote: MacGillivray's works}
The latest English law book writer is E. L. MacGillivray, whose "Treatise upon the law of copyright," British and American (London, Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with foot-note references to cases. This was followed by a brief "Digest of the law of copyright," English only, prepared by the same writer for the Publishers Association of Great Britain and Ireland (London, Butterworth, 1906, 12mo, 106 p.). The same association has printed annually from 1901, a digest of "Copyright cases," which are collected in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr. MacGillivray.
{Sidenote: English special treatises}
Special English treatises on specific classes of copyright protection are Colles and Hardy's "Playright and copyright in all countries" (London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.); Reginald Winslow's "The law of artistic copyright" (London, Clowes, 1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899, 8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.), the most important publication in English in its field.
{Sidenote: Parliamentary and Commission reports}
The Parliamentary papers giving reports of special commissions, referred to in previous chapters, constitute an important part of the English literature of copyright, the most notable being the report of the Royal Copyright Commission issued in 1878, with Sir James Stephen's digest of the law as then existing, and a supplementary blue-book of evidence; the report of the Musical Copyright Committee appointed by the Home Department, of 1904; the report of the Law of Copyright Committee appointed by the President of the Board of Trade, of 1909, with accompanying minutes of evidence; and the minutes of the Imperial Copyright Conference of 1909. The new copyright bill has been four times printed in progressive form--on its first introduction, July 26, 1910, on its reintroduction, March 30, 1911, as it emerged from committee, July 13, 1911, and as it went to the Lords, August 18, 1911.
The pending Canadian bill has been printed only as introduced April 26, 1911, but the government has supplied an accompanying memorandum comparing its provisions with existing law.
{Sidenote: Cyclopaedias and digests}
The American and English law cyclopaedias and digests also give references to copyright cases and decisions, some in special chapters, more or less comprehensive of recent copyright interpretations.
{Sidenote: French works}
The most recent authoritative French works on literary property are Eugene Pouillet's "Traite theorique et pratique de la propriete litteraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028 p.); Gustave Huard's "Traite de la propriete intellectuelle, v. 1. Propriete litteraire et artistique" (Paris, Marchal & Billard, 1903, 400 p.), and A. Huard and Edouard Mack's "Repertoire de legislation, de doctrine et de jurisprudence en matiere de propriete litteraire et artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier elaborate work is that of Claude Couhin, "La propriete industrielle, artistique et litteraire" (Paris, Larose, 1894), in three volumes.
{Sidenote: German works}
For Germany the text of the general copyright law of June 19, 1901, of the law relating to figurative arts and photographs of January 9, 1907, and the amendatory law including mechanical music reproductions, May 22, 1910, should be consulted. Otto Lindemann's "Das Urheberrecht an Werken der Literatur und der Tonkunst" (Berlin, Guttentag, 1910, 3d ed., 16mo, 155 p.) is a brief compilation of and comment on these laws of 1901 and 1910. The most recent and authoritative general works are Prof. Josef Kohler's "Urheberrecht an Schriftwerken und Verlagsrecht" (Stuttgart, F. Enke, 1907, 527 p.), though some of his statements of theory have given rise to criticism and dispute, and his "Kunstwerkrecht" (Stuttgart, Enke, 1908, 191 p.), Daude's "Die Reichsgesetze ueber das Urheberrecht an Werken der Literatur und Tonkunst und das Verlagsrecht" (Berlin, Guttentag, 1910, 293 p.), and Dr. Albert Osterrieth's "Das Urheberrecht an Werken der bildenden Kuenste und der Photographie" (Berlin, Heymann, 1907, 312 p.).
{Sidenote: Early German contributions}
In the early German literature of copyright should be noted the works of Puetter, sometimes called the father of the modern theory of property in intellectual productions, who wrote as early as 1764, an edition of whose "Beytraege zum Teutschen Staats- u. Fuersten-Rechte" was published in Goettingen in 1777; and the tractate of Immanuel Kant, "Von der Unrechtmaessigkeit des Buechernachdrucks," which may be found in his collected works.
{Sidenote: Italian works}
The most important Italian work of recent issue is that of Eduardo Piola-Caselli, "Del diritto di autore" (Naples, E. Marghieri, 1907, 875 p.), and earlier works of standard character are Enrico Rosmini's "Legislazione e jurisprudenza sui diritti d'autore" (Milan, M. Hoepli, 1890, 671 p.), and Pietro Esperson, "De' diritti di autore sulle opere dell'ingegno ne' rapporti internazionali" (Torino, Unione tipografico-editrice, 1899, 278 p.).
{Sidenote: Spanish compendium}
A useful compendium of Spanish copyright law of 1879 et seq., covering both the Peninsula and the ultramar colonies, was published in Havana by La Propaganda Literaria, in 1890, as edited with an interesting comparison of Spanish law with that of Great Britain and America by D. F. G. Garofalo y Morales.
{Sidenote: International compilations}
A most valuable compilation of the copyright laws and treaties of all countries, comprising a literal translation into German of about 250 acts, is "Gesetze ueber das Urheberrecht in allen Laendern," edited in a second edition by Prof. Ernest Roethlisberger (Leipzig, Hedeler, 1902, 418 p.), which was complemented by his summary of the domestic and international law of copyright in the different countries, "Der interne und der internationale Schutz des Urheberrechts," also in its second edition (Leipzig, Boersenverein der deutschen Buchhaendler, 1904, 116 p.), comprising references or mentions covering fifty-seven countries and forty-nine colonies, especially the British colonies. With these should be mentioned "Recueil des conventions et traites concernant la propriete litteraire et artistique," published under the auspices of the Bureau of the International Copyright Union (Berne, Bureau de l'Union internationale, 1904, 8vo, 908 p.). These works are supplemented by the publication from month to month in the Droit d'Auteur of Berne, of which Prof. Roethlisberger is the editor, of new conventions, treaties, laws and other material, bringing world-information up to date.
APPENDIXES
I
UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS
1. UNITED STATES COPYRIGHT CODE OF 1909
AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT
{Sidenote: Exclusive right to print, publish and vend}
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:
(a) To print, reprint, publish, copy, and vend the copyrighted work;
{Sidenote: To translate, dramatize arrange and adapt, etc.}
(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;
{Sidenote: To deliver lectures, sermons, etc.}
(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production;
{Sidenote: To represent dramatic works, or make record, or exhibit or perform, etc.}
(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;
{Sidenote: To perform music and make arrangement, setting, or record}
{Sidenote: Act not retroactive.}
{Sidenote: Music by foreign author}
{Sidenote: Control of mechanical musical reproduction}
{Sidenote: Royalty for use of music on records, etc.}
{Sidenote: Notice of use of music on records}
{Sidenote: License to use music on records}
(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And provided further, and as a condition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: And provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.
{Sidenote: Failure to pay royalties}
In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount.
{Sidenote: Reproduction of music on coin-operated machines}
The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs.
{Sidenote: Right at common law or in equity}
SEC. 2. That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.
{Sidenote: Component parts of copyrightable work}
{Sidenote: Composite works or periodicals}
SEC. 3. That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act.
{Sidenote: Works protected}
SEC. 4. That the works for which copyright may be secured under this Act shall include all the writings of an author.
{Sidenote: Classification of copyright works}
SEC. 5. That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:
(a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations;
(b) Periodicals, including newspapers;
(c) Lectures, sermons, addresses, prepared for oral delivery;
(d) Dramatic or dramatico-musical compositions;
(e) Musical compositions;
(f) Maps;
(g) Works of art; models or designs for works of art;
(h) Reproductions of a work of art;
(i) Drawings or plastic works of a scientific or technical character;
(j) Photographs;
(k) Prints and pictorial illustrations:
{Sidenote: Classification does not limit copyright}
Provided, nevertheless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act.
{Sidenote: Compilations, abridgements, dramatizations, translations, new editions}
{Sidenote: Subsisting copyright not affected}
SEC. 6. That compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works.
{Sidenote: Not subject-matter of copyright: works in public domain; government publications}
SEC. 7. That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.
{Sidenote: Copyright to author or proprietor for terms specified in Act}
{Sidenote: Foreign authors}
SEC. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only:
{Sidenote: Alien authors domiciled in U. S.}
(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or
{Sidenote: Authors, when citizens of countries granting reciprocal rights}
{Sidenote: International agreement}
(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.
{Sidenote: Presidential proclamation}
The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require.
{Sidenote: Publication with notice initiates copyright}
SEC. 9. That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act.
{Sidenote: Registration of copyright}
{Sidenote: Copyright certificate}
SEC. 10. That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyright shall issue to him the certificate provided for in section fifty-five of this Act.
{Sidenote: Copyright protection of unpublished works: lectures, dramas, music, etc.}
{Sidenote: Deposit of copies after publication}
SEC. 11. That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale.
{Sidenote: Two complete copies of best edition}
{Sidenote: Periodical contributions}
{Sidenote: Work not reproduced in copies for sale}
{Sidenote: No action for infringement until deposit of copies}
SEC. 12. That after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with.
{Sidenote: Failure to deposit copies}
{Sidenote: Register of copyrights may demand copies}
{Sidenote: Fine $100 and retail price of 2 copies, best edition}
{Sidenote: Forfeiture of copyright}
SEC. 13. That should the copies called for by section twelve of this Act not be promptly deposited as herein provided, the register of copyrights may at any time after the publication of the work, upon actual notice, require the proprietor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit of copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void.
{Sidenote: Postmaster's receipt}
SEC. 14. That the postmaster to whom are delivered the articles deposited as provided in sections eleven and twelve of this Act shall, if requested, give a receipt therefor and shall mail them to their destination without cost to the copyright claimant.
{Sidenote: Printed from type set within U. S.}
{Sidenote: Book in foreign language excepted}
{Sidenote: Lithographic or photo-engraving process}
{Sidenote: Printing and binding of the book}
{Sidenote: Illustrations in a book}
{Sidenote: Separate lithographs and photo-engravings}
{Sidenote: Books for blind excepted}
{Sidenote: Books in foreign languages excepted}
SEC. 15. That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking ad interim protection under this Act.
{Sidenote: Affidavit of American manufacture}
{Sidenote: Printing and binding of the book}
{Sidenote: Establishment where printing was done}
{Sidenote: Date of publication}
SEC. 16. That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be produced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the completion of the printing of the book or the date of publication.
{Sidenote: False affidavit, a misdemeanor; fine, $1,000 and forfeiture of copyright}
SEC. 17. That any person who, for the purpose of obtaining registration of a claim to copyright, shall knowingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited.
{Sidenote: Notice of copyright}
{Sidenote: Notice on maps, copies of works of art, photographs, and prints}
{Sidenote: Notice on accessible portion}
{Sidenote: Notice on existing copyright works [See note below]}
SEC. 18. That the notice of copyright[2] required by section nine of this Act shall consist either of the word "Copyright" or the abbreviation "Copr." accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (C), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this Act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and seventy-four.
Footnote 2: The Act of June 18, 1874, provides that the notice of copyright to be inscribed on each copy of a copyrighted work shall consist of the following words:
"Entered according to act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress, at Washington"; or, ... the word "Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out, thus: "Copyright, 18-- by A. B."
{Sidenote: Notice of copyright on book}
{Sidenote: On periodical}
{Sidenote: One notice in each volume or periodical}
SEC. 19. That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: Provided, That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice.
{Sidenote: Omission of notice by accident or mistake}
{Sidenote: Innocent infringement}
SEC. 20. That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer, who has been misled by the omission of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay, innocently incurred, if the court, in its discretion, shall so direct.
{Sidenote: Book published abroad in the English language}
{Sidenote: Ad interim copyright for 30 days}
SEC. 21. That in the case of a book published abroad in the English language before publication in this country, the deposit in the copyright office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the copyright office.
{Sidenote: Extension to full term}
{Sidenote: Deposit of copies, filing of affidavit}
SEC. 22. That whenever within the period of such ad interim protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act.
{Sidenote: Duration of copyright: 1st term, 28 years}
{Sidenote: Posthumous works, periodicals, cyclopaedic or composite works}
{Sidenote: Renewal term 28 years}
{Sidenote: Other copyrighted works, first term 28 years}
{Sidenote: Renewal term 28 years; to author, widow, children, heirs or next of kin}
{Sidenote: Notice that renewal term is desired}
{Sidenote: Copyright ends in 28 years unless renewed}
SEC. 23. That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.
{Sidenote: Extension of subsisting copyrights}
{Sidenote: Proprietor entitled to renewal for composite work}
{Sidenote: Renewal application}
SEC. 24. That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: Provided, however, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: Provided, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term.
{Sidenote: Infringement of copyright}
SEC. 25. That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable:
{Sidenote: Injunction}
(a) To an injunction restraining such infringement;
{Sidenote: Damages}
{Sidenote: Proving sales}
{Sidenote: Newspaper reproduction of photograph; recovery, $50-$200}
{Sidenote: Maximum recovery, $5,000}
{Sidenote: Minimum recovery, $250}
(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty:
{Sidenote: Painting, statue, or sculpture, $10 per copy}
First. In the case of a painting, statue, or sculpture ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
{Sidenote: Other works, $1 per copy}
Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;
{Sidenote: Lectures, $50}
Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery;
{Sidenote: Dramatic or musical works, $100 and $50}
{Sidenote: Other musical compositions, $10}
Fourth. In the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance;
{Sidenote: Delivering up infringing articles}
(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright;
{Sidenote: Destruction}
(d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices or other means for making such infringing copies as the court may order;
{Sidenote: Infringement by mechanical instruments}
{Sidenote: Injunction may be granted}
{Sidenote: Recovery of royalty}
{Sidenote: Notice to proprietor of intention to use}
{Sidenote: Damages, three times amount provided}
{Sidenote: Temporary injunction}
(e) Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid.
{Sidenote: Rules for practice and procedure}
Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States.
{Sidenote: Judgment enforcing remedies}
SEC. 26. That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided.
{Sidenote: Proceedings, injunction, etc., may be united in one action}
SEC. 27. That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action.
{Sidenote: Penalty for willful infringement}
{Sidenote: Oratorios, cantatas, etc. may be performed}
SEC. 28. That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court: Provided, however, That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit.
{Sidenote: False notice of copyright (penalty for)}
{Sidenote: Fraudulent removal of notice; fine $100-$1,000}
{Sidenote: Issuing, selling, or importing article bearing false notice; fine $100}
SEC. 29. That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars.
{Sidenote: Importation prohibited of articles bearing false notice and piratical copies}
SEC. 30. That the importation into the United States of of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited.
{Sidenote: Prohibition of importation of books}
{Sidenote: Exceptions to prohibition}
SEC. 31. That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: Provided, however, That, except as regards piratical copies, such prohibition shall not apply:
{Sidenote: Works for the blind}
(a) To works in raised characters for the use of the blind;
{Sidenote: Foreign newspapers or magazines}
(b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization;
{Sidenote: Books in foreign languages}
(c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country;
{Sidenote: Importation of authorized foreign books permitted}
(d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say:
{Sidenote: For individual use and not for sale}
First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States;
{Sidenote: For the use of U. S.}
Second. When imported by the authority or for the use of the United States;
{Sidenote: For the use of societies, libraries, etc.}
Third. When imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States;
{Sidenote: Libraries purchased en bloc}
{Sidenote: Books brought personally into U. S.}
Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale:
{Sidenote: Imported copies not to be used to violate copyright}
Provided, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright.
{Sidenote: Seizure of unlawfully imported copies}
{Sidenote: Copies of authorized books imported may be returned}
SEC. 32. That any and all articles prohibited importation by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: Provided, however, That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud.
{Sidenote: Secretary of Treasury and Postmaster-General to make rules to prevent unlawful importation}
SEC. 33. That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department, or Post Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties.
{Sidenote: Jurisdiction of courts in copyright cases}
SEC. 34. That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.
{Sidenote: District in which suit may be brought}
SEC. 35. That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found.
{Sidenote: Injunctions may be granted}
SEC. 36. That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.
{Sidenote: Certified copy of papers filed}
SEC. 37. That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.
{Sidenote: Judgments, etc., may be reviewed on appeal or writ of error}
SEC. 38. That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively.
{Sidenote: No criminal proceedings after three years}
SEC. 39. That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose.
{Sidenote: Full costs shall be allowed}
SEC. 40. That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs.
{Sidenote: Copyright distinct from property in material object}
{Sidenote: Transfer of any copy of copyrighted work permitted}
SEC. 41. That the copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.
{Sidenote: Copyright may be assigned, mortgaged, or bequeathed}
SEC. 42. That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will.
{Sidenote: Assignment executed in foreign country to be acknowledged}
SEC. 43. That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgement under the hand and official seal of such consular officer or secretary of legation shall be prima facie evidence of the execution of the instrument.
{Sidenote: Assignments to be recorded}
SEC. 44. That every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose assignment has been duly recorded.
{Sidenote: Register of copyrights to record assignments}
SEC. 45. That the register of copyright shall, upon payment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record attached under seal of the copyright office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal.
{Sidenote: Assignee's name may be substituted in copyright notice}
SEC. 46. That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act.
{Sidenote: Copyright records}
SEC. 47. That all records and other things relating to copyrights required by law to be preserved shall be kept and preserved in the copyright office, Library of Congress, District of Columbia, and shall be under the control of the register of copyrights, who shall, under the direction and supervision of the Librarian of Congress, perform all the duties relating to the registration of copyrights.
{Sidenote: Register of copyrights and assistant register of copyrights}
SEC. 48. That there shall be appointed by the Librarian of Congress a register of copyrights, at a salary of four thousand dollars per annum, and one assistant register of copyrights, at a salary of three thousand dollars per annum, who shall have authority during the absence of the register of copyrights to attach the copyright office seal to all papers issued from the said office and to sign such certificates and other papers as may be necessary. There shall also be appointed by the Librarian such subordinate assistants to the register as may from time to time be authorized by law.
{Sidenote: Register of copyrights to deposit and account for fees}
{Sidenote: Shall make monthly report of fees}
SEC. 49. That the register of copyrights shall make daily deposits in some bank in the District of Columbia, designated for this purpose by the Secretary of the Treasury as a national depository, of all moneys received to be applied as copyright fees, and shall make weekly deposits with the Secretary of the Treasury, in such manner as the latter shall direct, of all copyright fees actually applied under the provisions of this Act, and annual deposits of sums received which it has not been possible to apply as copyright fees or to return to the remitters, and shall also make monthly reports to the Secretary of the Treasury and to the Librarian of Congress of the applied copyright fees for each calendar month, together with a statement of all remittances received, trust funds on hand, moneys refunded, and unapplied balances.
{Sidenote: Bond of register of copyrights}
SEC. 50. That the register of copyrights shall give bond to the United States in the sum of twenty thousand dollars, in form to be approved by the Solicitor of the Treasury and with sureties satisfactory to the Secretary of the Treasury, for the faithful discharge of his duties.
{Sidenote: Annual report of register of copyrights}
SEC. 51. That the register of copyrights shall make an annual report to the Librarian of Congress, to be printed in the annual report on the Library of Congress, of all copyright business for the previous fiscal year, including the number and kind of works which have been deposited in the copyright office during the fiscal year, under the provisions of this Act.
{Sidenote: Seal of copyright office}
SEC. 52. That the seal provided under the Act of July eighth, eighteen hundred and seventy, and at present used in the copyright office, shall continue to be the seal thereof, and by it all papers issued from the copyright office requiring authentication shall be authenticated.
{Sidenote: Rules for the registration of copyrights}
SEC. 53. That, subject to the approval of the Librarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act.
{Sidenote: Record books}
{Sidenote: Entry of copyright}
SEC. 54. That the register of copyrights shall provide and keep such record books in the copyright office as are required to carry out the provisions of this Act, and whenever deposit has been made in the copyright office of a copy of any work under the provisions of this Act he shall make entry thereof.
{Sidenote: Certificate of registration}
{Sidenote: Certificate for book to state receipt of affidavit}
{Sidenote: Certificate may be given to any person}
{Sidenote: Receipt for copies deposited}
SEC. 55. That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the copyright office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, and the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The register of copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the copyright office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the register of copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration.
{Sidenote: Index to copyright registrations}
{Sidenote: Catalogue of copyright entries}
{Sidenote: Catalogue cards}
{Sidenote: Catalogues and indexes prima facie evidence}
SEC. 56. That the register of copyrights shall fully index all copyright registrations and assignments and shall print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, together with suitable indexes, and at stated intervals shall print complete and indexed catalogues for each class of copyright entries, and may thereupon, if expedient, destroy the original manuscript catalogue cards containing the titles included in such printed volumes and representing the entries made during such intervals. The current catalogues of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright registration.
{Sidenote: Distribution of catalogue of copyright entries}
{Sidenote: Subscription price}
{Sidenote: Superintendent of Documents to receive subscriptions}
SEC. 57. That the said printed current catalogues as they are issued shall be promptly distributed by the copyright office to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails, in accordance with revised lists of such collectors of customs and postmasters prepared by the Secretary of the Treasury and the Postmaster-General, and they shall also be furnished to all parties desiring them at a price to be determined by the register of copyrights, not exceeding five dollars per annum for the complete catalogue of copyright entries and not exceeding one dollar per annum for the catalogues issued during the year for any one class of subjects. The consolidated catalogues and indexes shall also be supplied to all persons ordering them at such prices as may be determined to be reasonable, and all subscriptions for the catalogues shall be received by the Superintendent of Public Documents, who shall forward the said publications; and the moneys thus received shall be paid into the Treasury of the United States and accounted for under such laws and Treasury regulations as shall be in force at the time.
{Sidenote: Record books, etc., open to inspection}
{Sidenote: Copies may be taken of entries in record books}
SEC. 58. That the record books of the copyright office, together with the indexes to such record books, and all works deposited and retained in the copyright office, shall be open to public inspection; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be prescribed by the register of copyrights and approved by the Librarian of Congress.
{Sidenote: Disposition of copyright deposits}
{Sidenote: Preservation of copyright deposits}
SEC. 59. That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collections of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Columbia for use therein.
{Sidenote: Disposal of copyright deposits}
{Sidenote: Manuscript copies to be preserved}
SEC. 60. That of any articles undisposed of as above provided, together with all titles and correspondence relating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remaining articles and other things to be destroyed: Provided, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: And provided further, That no manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copyright proprietor of record, permitting him to claim and remove it.
{Sidenote: Fees}
{Sidenote: Fee for registration}
{Sidenote: Fee for certificate}
{Sidenote: Fee for recording assignment}
{Sidenote: Fee for copy of assignment}
{Sidenote: Fee for recording notice of user}
{Sidenote: Fee for comparing assignment}
{Sidenote: Fee for recording renewal}
{Sidenote: Fee for recording transfer}
{Sidenote: Fee for search}
{Sidenote: Only one registration required}
SEC. 61. That the register of copyrights shall receive, and the persons to whom the services designated are rendered shall pay, the following fees: For the registration of any work subject to copyright, deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certifying any instrument of writing for the assignment of copyright, or any such license specified in section one, subsection (e), or for any copy of such assignment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each additional one hundred words. For comparing any copy of an assignment with the record of such document in the copyright office and certifying the same under seal, one dollar. For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assignment. For any requested search of copyright office records, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: Provided, That only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time.
{Sidenote: Definitions: "date of publication"}
{Sidenote: "Author"}
SEC. 62. That in the interpretation and construction of this Act "the date of publication" shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority, and the word "author" shall include an employer in the case of works made for hire.
{Sidenote: Repealing clause}
SEC. 63. That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall effect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.
{Sidenote: Date of enforcement}
SEC. 64. That this Act shall go into effect on the first day of July, nineteen hundred and nine.
APPROVED, MARCH 4, 1909.
2. PRESIDENT'S PROCLAMATIONS
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION
Whereas it is provided by the act of Congress of March 4, 1909, entitled "An act to amend and consolidate the acts respecting copyright," that the benefits of said act, excepting the benefits under section 1 (e) thereof, as to which special conditions are imposed, shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only upon certain conditions set forth in section 8 of said act, to wit:
(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work: or
(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto:
And whereas it is also provided by said section that "The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time as the purposes of this act may require":
And whereas satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain, and Switzerland the law permits and since July 1, 1909, has permitted to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries:
Now, therefore, I, William Howard Taft, President of the United States of America, do declare and proclaim that one of the alternative conditions specified in section 8, of the act of March 4, 1909, is now fulfilled, and since July 1, 1909, has continuously been fulfilled, in respect to the citizens or subjects of Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain, and Switzerland, and that the citizens or subjects of the aforementioned countries are and since July 1, 1909, have been entitled to all the benefits of the said act other than the benefits under section 1 (e) thereof, as to which the inquiry is still pending.
In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington this ninth day of April, in the year of our Lord one thousand nine hundred and ten, and of the Independence of the [SEAL.] United States of America the one hundred and thirty-fourth.
WM. H. TAFT.
By the President: P. C. KNOX, Secretary of State
Luxemburg was added by proclamation of June 29, 1910, and Sweden, May 26, 1911, to go into effect June 1, 1911.
A proclamation accepting reciprocal relations with Germany as to mechanical music reproductions was issued December 8, 1910. Similar proclamations under date of June 14, 1911, covered Belgium, Luxemburg and Norway.
3. UNITED STATES SUPREME COURT RULES
RULES ADOPTED BY THE SUPREME COURT OF THE UNITED STATES FOR PRACTICE AND PROCEDURE UNDER SECTION 25 OF AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT, APPROVED MARCH 4, 1909. TO GO INTO EFFECT JULY 1, 1909.
1. The existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings instituted under section twenty-five (25) of the act of March fourth, nineteen hundred and nine, entitled "An act to amend and consolidate the acts respecting copyright."
2. A copy of the alleged infringement of copyright, if actually made, and a copy of the work alleged to be infringed, should accompany the petition, or its absence be explained; except in cases of alleged infringement by the public performance of dramatic and dramatico-musical compositions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible.
3. Upon the institution of any action, suit, or proceeding, or at any time thereafter, and before the entry of final judgment or decree therein, the plaintiff or complainant, or his authorized agent or attorney, may file with the clerk of any court given jurisdiction under section 34 of the act of March 4, 1909, an affidavit stating upon the best of his knowledge, information, and belief, the number and location, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the clerk a bond executed by at least two sureties and approved by the court or a commissioner thereof.
4. Such bond shall bind the sureties in a specified sum, to be fixed by the court, but not less than twice the reasonable value of such infringing copies, plates, records, molds, matrices, or other means for making such infringing copies, and be conditioned for the prompt prosecution of the action, suit or proceeding; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the defendant; and for the payment to the defendant of any damages which the court may award to him against the plaintiff or complainant. Upon the filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the marshal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same subject to the order of the court issuing said writ, or of the court of the district in which the seizure shall be made.
5. The marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affidavit, writ, and bond by delivering the same to him personally, if he can be found within the district, of if he can not be found, to his agent, if any, or to the person from whose possession the articles are taken, or if the owner, agent, or such person can not be found within the district by leaving said copy at the usual place of abode of such owner or agent with a person of suitable age and discretion, or at the place where said articles are found, and shall make immediate return of such seizure, or attempted seizure, to the court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering therewith.
6. A marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the court.
7. Within three days after the articles are seized, and a copy of the affidavit, writ and bond are served as hereinbefore provided, the defendant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all objection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the court, the property to be returned to the defendant.
8. Within ten days after service of such notice, the attorney of the plaintiff or complainant shall serve upon the defendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the court or a judge thereof at the time therein stated.
9. The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for making the copies alleged to infringe the copyright.
10. Thereupon the court in its discretion, and after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the court, and conditioned for the delivery of said specified articles to abide the order of the court. The plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond.
11. Upon the granting of such application and the justification of the sureties on the bond, the marshal shall immediately deliver the articles seized to the defendant.
12. Any service required to be performed by any marshal may be performed by any deputy of such marshal.
13. For services in cases arising under this section, the marshal shall be entitled to the same fees as are allowed for similar services in other cases.
4. UNITED STATES COPYRIGHT OFFICE REGULATIONS
RULES AND REGULATIONS FOR THE REGISTRATION OF CLAIMS TO COPYRIGHT
{Sidenote: Copyright under act}
1. Copyright under the act of Congress entitled: "An act to amend and consolidate the acts respecting copyright," approved March 4, 1909, is ordinarily secured by printing and publishing a copyrightable work with a notice of claim in the form prescribed by the statute. Registration can only be made after such publication, but the statute expressly provides, in certain cases, for registration of manuscript works.
WHO MAY SECURE COPYRIGHT
{Sidenote: Persons entitled to copyright}
2. The persons entitled by the act to copyright protection for their works are:
(1) The author of the work, if he is:
(a) A citizen of the United States, or
(b) A resident alien domiciled in the United States at the time of the first publication of his work, or
(c) A citizen or subject of any country which grants either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens. The existence of reciprocal copyright conditions is determined by presidential proclamation.
(2) The proprietor of a work. The word "proprietor" is here used to indicate a person who derives his title to the work from the author. If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor can not claim it.
(3) The executors, administrators or assigns of the above-mentioned author or proprietor.
{Sidenote: Copyright registration}
3. After the publication of any work entitled to copyright, the claimant of copyright should register this claim in the Copyright Office. An action for infringement of copyright can not be maintained in court until the provisions with respect to the deposit of copies and registration of such work shall have been complied with.
A certificate of registration is issued to the applicant and duplicates thereof may be obtained on payment of the statutory fee of 50 cents.
SUBJECT-MATTER OF COPYRIGHT
{Sidenote: Works subject to copyright}
4. The act provides that no copyright shall subsist in the original text of any work published prior to July 1, 1909, which has not been already copyrighted in the United States (sec. 7).
Section 5 of the act divides the works for which copyright may be secured into eleven classes, as follows:
(a) Books.--This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term "book" as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations, such as logarithmic tables, interest, cost, and wage tables, etc.; single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopaedias; catalogues; directories; gazetteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers.
{Sidenote: Blank books, etc., not copyrightable}
5. The term "book" can not be applied to--
Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions.
Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulae on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles.
Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale.
Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books.
Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as "books" or as "prints" according to the nature of the copyrightable matter.
{Sidenote: Periodicals}
6. (b) Periodicals.--This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second class matter at the post office.
{Sidenote: Lectures, etc.}
7. (c) Lectures, sermons, addresses, or similar productions, prepared for oral delivery.
{Sidenote: Dramatic compositions, etc.}
8. (d) Dramatic and dramatico-musical compositions, such as dramas, comedies, operas, operettas and similar works.
The designation "dramatic composition" does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or "stage business"; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as "books.")
{Sidenote: Dramatico-musical compositions, etc.}
9. Dramatico-musical compositions include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.
{Sidenote: Songs separately published}
Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions.
{Sidenote: Musical compositions}
10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words.
But when the text is printed alone it should be registered as a "book," not as a "musical composition."
"Adaptations" and "arrangements" may be registered as "new works" under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made.
{Sidenote: Maps}
11. (f) Maps.--This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence.
{Sidenote: Works of art}
12. (g) Works of art.--This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.)
Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented.
{Sidenote: Toys, games, etc.}
No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles.
{Sidenote: Reproductions of works of art}
13. (h) Reproductions of works of art.--This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced.
{Sidenote: Drawings or plastic works}
14. (i) Drawings or plastic works of a scientific or technical character.--This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc.
{Sidenote: Photographs}
15. (j) Photographs.--This term covers all positive prints from photographic negatives, including those from moving picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings.
{Sidenote: Prints and pictorial illustrations}
16. (k) Prints and pictorial illustrations.--This term comprises all printed pictures not included in the various other classes enumerated above.
{Sidenote: Articles for use not copyrightable}
Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.
Postal cards can not be copyrighted as such. The pictures thereon may be registered as "prints or pictorial illustrations" or as "photographs." Text matter on a postal card may be of such a character that it may be registered as a "book."
Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation "prints and pictorial illustrations." Trademarks can not be copyrighted nor registered in the Copyright Office.
HOW TO SECURE REGISTRATION
{Sidenote: Registrable works}
17. Copyright registration may be secured for:
(1) Unpublished works.
(2) Published works.
UNPUBLISHED WORKS
Unpublished works are such as have not at the time of registration been printed or reproduced in copies for sale, or been publicly distributed. They include: (a) Lectures, sermons, addresses, or similar productions for oral delivery; (b) dramatic and musical compositions; (c) photographic prints; (d) works of art (paintings, drawings, and sculpture), and (e) plastic works.
In order to secure copyright in such unpublished works, the following steps are necessary:
{Sidenote: Registration of unpublished works}
18. (1) In the case of lectures, sermons, addresses, and dramatic and musical compositions, deposit one typewritten or manuscript copy of the work.
This copy should be in convenient form, clean and legible, the leaves securely fastened together, and should bear the title of the work corresponding to that given in the application.
The entire work in each case should be deposited. It is not sufficient to deposit a mere outline or epitome, or, in the case of a play, a mere scenario or a scenario with the synopsis of the dialogue.
{Sidenote: Unpublished photograph}
19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.)
{Sidenote: Photograph of work of art}
20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction.
In each case the deposited article should be accompanied by an application for registration and a money order for the amount of the statutory fee.
{Sidenote: Reproduction of unpublished work}
21. Any work which has been registered as an unpublished work, if reproduced in copies for sale or distribution, must be deposited a second time (two copies, accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works published in the first place.
PUBLISHED WORKS
DEPOSIT OF COPIES
{Sidenote: Deposit of copies}
22. After publication of the work with the copyright notice inscribed, two complete copies of the best edition of the work must be sent to the Copyright Office, with a proper application for registration correctly filled out and a money order for the amount of the legal fee.
The statute requires that the deposit of the copyright work shall be made "promptly," which has been defined as "without unnecessary delay." It is not essential, however, that the deposit be made on the very day of publication.
{Sidenote: Definition of "published work"}
23. Published works are such as are printed or otherwise produced and "placed on sale, sold, or publicly distributed" (i. e., so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law). Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication. Works intended for sale or general distribution must first be printed with the statutory form of copyright notice inscribed on every copy intended to be circulated.
NOTICE OF COPYRIGHT
{Sidenote: Form of notice}
24. The ordinary form of copyright notice for books, periodicals, dramatic and musical compositions is "Copyright, 19-- (the year of publication), by A. B. (the name of the claimant)." The name of the claimant printed in the notice should be the real name of a living person, or his trade name if he always uses one (but not a pseudonym or pen-name), or the name of the firm or corporation claiming to own the copyright. The copyright notice should not be printed in the name of one person for the benefit of another. The beneficiary's name should be printed in such cases.
{Sidenote: Short form of notice}
25. In the case of maps, photographs, reproductions of works of art, prints or pictorial illustrations, works of art, models or designs for works of art, and plastic works of a scientific or technical character, the notice may consist of the letter C, inclosed within a circle, thus (C), accompanied with the initials, monogram, mark, or symbol of the copyright proprietor. But in such cases the name itself of the copyright proprietor must appear on some accessible portion of the work, or on the mount of the picture or map, or on the margin, back, or permanent base or pedestal of the work.
{Sidenote: Notice upon each copy}
26. The prescribed notice must be affixed to each copy of the work published or offered for sale in the United States. But no notice is required in the case of foreign books printed abroad seeking ad interim protection in the United States, as provided in section 21 of the copyright act.
AMERICAN MANUFACTURE OF COPYRIGHT BOOKS
{Sidenote: Works produced in United States}
27. The following works must be manufactured in the United States in order to secure copyright:
(a) All "books" in the English language and books in any language by a citizen or domiciled resident of the United States must be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein or, if the text of such books be produced by lithographic process or photo-engraving process, then by a process wholly performed within the limits of the United States; and the printing of the text and binding of the book must be performed within the limits of the United States.
(b) All illustrations within a book produced by lithographic process or photo-engraving process and all separate lithographs or photo-engravings must be produced by lithographic or photo-engraving process wholly performed within the limits of the United States, except when the subjects represented in such illustrations in a book or such separate lithographs or photo-engravings "are located in a foreign country and illustrate a scientific work or reproduce a work of art."
{Sidenote: Books by foreign authors}
28. Books by foreign authors in any language other than English are not required to be printed in the United States.
{Sidenote: Books printed abroad}
In the case of books printed abroad in the English language an ad interim term of copyright of thirty days from registration made in the Copyright Office within thirty days after publication abroad may be secured; but in order to extend the copyright to the full term of protection, an edition of the work must be published in the United States within the thirty days ad interim term, printed or produced within the limits of the United States as required in section 15 of the copyright act.
APPLICATION FOR REGISTRATION
{Sidenote: Application for registration}
29. The application for copyright registration required to be sent with each work (see No. 20) must state the following facts, without which no registration can be made:
(1) The name and address of the claimant of copyright.
(2) The nationality of the author of the work.
(3) The title of the work.
(4) The name and address of person to whom certificate is to be sent.
(5) In the case of all published works the actual date (year, month, and day) when the work was published.
{Sidenote: Name of author}
{Sidenote: Nationality of author}
30. In addition, it is desirable that the application should state for record the name of the author. If, however, the work is published anonymously or under a pseudonym and it is not desired to place on record the real name of the author, this may be omitted. In the case of works made for hire, the employer may be given as the author. By the nationality of the author is meant citizenship, not race; a person naturalized in the United States should be described as an American. An author, a citizen of a foreign country having no copyright relations with the United States, may secure copyright in this country, if at the time of publication of his work he is a permanent resident of the United States. The fact of such permanent residence in the United States should be expressly stated in the application. Care should be taken that the title of the work, the name of the author, and the name of the copyright claimant should be correctly stated in the application, and that they should agree exactly with the same statements made in the work itself.
APPLICATION FORMS
{Sidenote: Application forms}
31. The Copyright Office has issued the following application forms, which will be furnished on request, and should be used when applying for copyright registration:
A1. Book by citizen or resident of the United States.
A1. New ed. New edition of book by citizen or resident of the United States.
A1. for. Book by citizen or resident of a foreign country, but manufactured in the United States.
A2. Edition printed in the United States of a book originally published abroad in the English language.
A3. Book by foreign author in foreign language.
A4. Ad interim. Book published abroad in the English language.
A5. Contribution to a newspaper or periodical.
B1. Periodical. For registration of single issue.
B2. Periodical. General application and deposit.
C. Lecture, sermon, or address.
D1. Published dramatic composition.
D2. Dramatic composition not reproduced for sale.
D3. Dramatico-musical composition.
E1. Published musical composition.
E2. Musical composition not reproduced for sale.
F. Published map.
G. Work of art (painting, drawing, or sculpture); or model or design for a work of art.
H. Reproduction of a work of art.
I. Drawing or plastic work of a scientific or technical character.
J1. Photograph published for sale.
J2. Photograph not reproduced for sale.
K. Print or pictorial illustration.
AFFIDAVIT OF MANUFACTURE
{Sidenote: Affidavit for book}
32. In the case of books by American authors and all books in the English language the application must be accompanied by an affidavit, showing the following facts:
(1) That the copies deposited have been printed from type set within the limits of the United States; or from plates made within the limits of the United States from type set therein; or if the text be produced by lithographic process or photo-engraving process, that such process was wholly performed within the limits of the United States. Stating, in either case, the place and the establishment where such work was done.
(2) That the printing of the text has been performed within the limits of the United States, showing the place and the name of the establishment doing the work.
(3) That the binding of such books has been performed within the limits of the United States, showing the place and the name of the establishment where the work was done. This can be omitted if the work is unbound.
(4) That the completion of the printing of said book was on a stated day, or that the book was published on a given date.
{Sidenote: Date of publication}
Section 62 of the copyright act defines the date of publication as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority."
{Sidenote: Affidavit must be under seal}
33. The affidavit may be made before any officer authorized to administer oaths within the United States who can affix his official seal to the instrument.
{Sidenote: Errors by applicants}
The applicant and the officer administering the oath for such affidavit are specially requested to make sure that the instrument is properly executed, so as to avoid the delay of having it returned for amendment. Experience shows that among the common errors made by applicants are the following:
Failure to write in the "venue," that is, the name of the county and State, and to make sure that the notary's statement agrees.
Reciting a corporation or partnership as affiant. Oaths can be taken only by individuals.
Failure to state in what capacity the affiant takes the oath, whether as claimant, agent of the claimant, or printer. Where a corporation or firm is the claimant, the affiant should swear as agent.
Failure to state the exact date of publication or completion of printing. The month alone is insufficient.
Failure to sign the affidavit. The signature should correspond exactly with the name of the affiant stated at the beginning. Corporation or firm names must not appear in this place.
Failure to obtain signature of the notary after swearing to the contents.
Failure to obtain the seal of the notary.
Swearing before an officer not authorized to act in the place stated in the venue.
Variance between names and dates as stated in the affidavit and the application.
The affidavit must never be made before the day of publication.
{Sidenote: By whom affidavit may be made}
34. The affidavit may be made by: (1) The person claiming the copyright; or (2) his duly authorized agent or representative residing in the United States; or (3) the printer who has printed the book.
The person making the affidavit must state in which of the above-mentioned capacities he does so.
{Sidenote: Book in foreign language}
35. In the case of a foreign author applying for a book in a language other than English, no affidavit is required, as such books are not subject to the manufacturing clause.
In the case of a foreign author applying for a book in the English language, the same affidavit must be made as in that of an American author, except where a book is deposited for ad interim protection under section 21. In such cases the affidavit must be filed when the ad interim copyright is sought to be extended to the full term.
The affidavit is only required for BOOKS.
PERIODICALS (FORM B)
{Sidenote: Periodicals}
36. Application should be made in the same manner as for books, depositing two copies, but no affidavit is required.
Separate registration is necessary for each number of the periodical published with a notice of copyright, and can only be made after publication. It is not possible to register the title of the periodical in advance of publication.
CONTRIBUTIONS TO PERIODICALS (FORM A5)
{Sidenote: Contributions to periodicals}
37. If special registration is requested for any contribution to a periodical, one copy of the number of the periodical in which the contribution appears should be deposited promptly after publication.
The entire copy should be sent; sending a mere clipping or a page containing the contribution does not comply with the statute.
The date of publication of a periodical is not necessarily the date stated on the title-page. The application should state the day on which the issue is "first placed on sale, sold, or publicly distributed," which may be earlier or later than the date printed on the title-page.
AD INTERIM APPLICATIONS (FORM A4)
{Sidenote: Ad interim copyright}
38. Where a book in the English language has been printed abroad, an ad interim copyright may be secured by depositing in the Copyright Office one complete copy of the foreign edition, with an application containing a request for the reservation and a money order for $1. Such applications should state: (1) Name and nationality of the author; (2) Name and nationality of the copyright claimant; (3) Exact date of original publication abroad.
The deposit must be made within thirty days from publication abroad. Whenever, within the thirty days' period of ad interim protection, an edition manufactured in the United States is published, and two copies are deposited, the copyright claim therein may be registered the same as any other book (Form A2).
MAILING APPLICATIONS AND COPIES
{Sidenote: Address of mail matter}
39. All mail matter intended for the Copyright Office should be addressed to the "Register of Copyrights, Library of Congress, Washington, D. C." No letters dealing with copyright matters should be addressed to individuals in the office.
Copyright matter designed for deposit in the Copyright Office will be transmitted by the postmaster free of charge when requested. The postmaster will also, when requested, give a receipt for matter so delivered to him for transmission.
No franking label is issued by the Copyright Office for this purpose.
FEES
{Sidenote: Copyright fees}
40. The fee required to be paid for copyright registration is $1, except that in case of photographs it is only 50 cents when no certificate of registration is desired.
{Sidenote: Remittances}
All remittances to the Copyright Office should be sent by money order or bank draft. Postage stamps should not be sent for fees or postage. Checks can not be accepted unless certified. Coin or currency inclosed in letter or packages if sent will be at the remitter's risk.
Publishers may for their own convenience deposit in the Copyright Office a sum of money in advance against which each registration will be charged.
ASSIGNMENTS OF COPYRIGHT
{Sidenote: Assignments of copyright}
41. When a copyright has been assigned the instrument in writing signed by the proprietor of the copyright may be filed in this office for record within six calendar months after its execution without the limits of the United States or three calendar months within the United States.
After having been recorded the original assignment will be returned to the sender with a sealed certificate of record attached.
{Sidenote: Fee for recording assignment}
42. The fee for recording and certifying an assignment is $1 up to 300 words; $2 from 300 to 1,000 words; and another dollar for each additional thousand words or fraction thereof over 300 words.
{Sidenote: Name of assignee in claim}
43. After the assignment has been duly recorded, the assignee may substitute his name for that of the assignor in the copyright notice on the work assigned. Such substitution or transfer of ownership will be indexed in this office upon request, at a cost of 10 cents for each work assigned.
NOTICE OF USER OF MUSICAL COMPOSITIONS
{Sidenote: Notice of user of music}
44. Whenever the owner of the copyright in a musical composition uses such music in phonographs himself or permits anyone else to do so, he must send a notice of such use by him or by any other person to the Copyright Office to be recorded.
{Sidenote: Notice in absence of license}
45. Whenever any person in the absence of a license intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce the same mechanically, the act requires that he shall serve notice of such intention upon the copyright proprietor and must also send a duplicate of such notice to the Copyright Office.
APPLICATION FOR THE RENEWAL OR EXTENSION OF SUBSISTING COPYRIGHTS
{Sidenote: Renewals and extensions}
46. Application for the renewal or extension of a subsisting copyright (except copyright of a composite work) may be filed within one year prior to the expiration of the existing term by:
(1) The author of the work if still living;
(2) The widow, widower, or children of the author if the author is not living.
(3) The author's executor, if such author, widow, widower, or children be not living;
(4) If the author, widow, widower, and children are all dead, and the author left no will, then the next of kin.
{Sidenote: Renewal for composite work}
47. If the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor is entitled to the privilege of renewal and extension.
{Sidenote: Renewal fee}
48. The fee for the recording of the renewal claim is 50 cents. Application for the renewal or extension of copyright can not be recorded in the name of an assignee nor in that of any person not expressly mentioned in section 24 of the act.
SEARCHES
{Sidenote: Searches}
49. Upon application to the Register of Copyrights search of the records, indexes, or deposits will be made for such information as they may contain relative to copyright claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user.
{Sidenote: Search fee}
The statutory fee for searches is 50 cents for each full hour of time consumed in making such search.
AFFIDAVIT OF AMERICAN MANUFACTURE OF A1 COPYRIGHT BOOK.
Fill in the required statements to accord with the facts concerning the book named, and draw pen through such statements as are not intended to be made.
State of_____________ } } ss. County of_____________ }
Impression seal here I,_________________________________________ _________________________________________ ____, {being duly sworn, depose} {do solemnly affirm } and say:
(1) That I am the person claiming copyright in the book named herein.
(2) That I am the duly authorized agent or representative residing in the United States of the claimant of copyright in the book named herein.
(3) That I am the printer of the book named herein.
I further depose and say that, in so far as required by the Act of March 4, 1909,
the BOOK ENTITLED_________________________________________________ __________________________________________________________________ of which two copies have been deposited, HAS BEEN PRINTED by______
___________________________at_____________________________________
from {type / plates made in the U. S. from type} set within the limits of the United
States by__________________at_____________________________________;
that the printing of the text of the said book was completed on___,
19__; that the said book was published on________________, 19_____; that the BINDING of the said book has been performed within the limits of the
United States by___________at_____________________________________.
(Signature)___________________________________
Subscribed and {sworn to} before me this______day of________, 19__. {affirmed} _________________________________________ Place seal at top of page _________________________________________ [OVER]
A1 | * Name of claimant | 2 c. rec'd__________ | ______________________________________|_____________________ Author and title | Affidavit | rec'd___________ ______________________________________| | Cl. A, XXc. No.____ ______________________________________| Leave all above these lines blank | $____Cash No._______ ============================================================
APPLICATION FOR COPYRIGHT--BOOK BY CITIZEN OR RESIDENT OF THE UNITED STATES.
REGISTER OF COPYRIGHTS, WASHINGTON, D. C. ________Date.
Of the BOOK named herein, first published after June 30, 1909, TWO complete copies of the best edition published on the date stated herein are hereby deposited to secure copyright, accompanied by the AFFIDAVIT required by section 16 of the Act of March 4, 1909, that the book has been produced in accordance with the manufacturing provisions specified in section 15 of the said Act. $1 (statutory fee for registration) is also inclosed. The copyright is claimed by the undersigned:
Name and address of {_________________________________________________ copyright claimant {_________________________________________________
Author or authors_______________________________________________________________
If the work is anonymous or pseudonymous, it is not obligatory to state the name of the author.
======================================================================
Title of book_________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ____vol.____ Price, $____. Date of publication____________ [Must be [Date when placed on sale, sold, or publicly distributed.] exactly stated] Send certificate of {_________________________________________________ registration to {_________________________________________________
NOTE.--This form is to be used only for BOOKS by CITIZENS or RESIDENTS of the United States. A separate application card must be used for each separate WORK. No registration can be made unless copies are accompanied with a properly filled out application card, statutory fee, and the required AFFIDAVIT.
--> Failure to deposit copies bars suit for infringement and, if deposit of copies is not made after "actual notice," involves a fine of $100, the payment of twice the value of the book, and the COPYRIGHT BECOMES VOID. (OVER)
5. U. S. TREASURY AND POST OFFICE REGULATIONS
(T. D. 31754.)
TREASURY DEPARTMENT, July 17, 1911.
Collectors and other officers of the customs:
The following sections of the copyright law, approved March 4, 1909, effective July 1, 1909, together with the regulations made in pursuance thereof, are published for the information and guidance of customs officers and others concerned:
[Here follow secs. 15, 30, 31, 32, 33, 18, as given in preceding pages.]
The register of copyrights is required by this act to print at periodic intervals a catalogue of the titles of articles deposited and registered for copyright, which printed catalogues, as they are issued, will be distributed to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails.
REGULATIONS
Under the copyright act the following articles are prohibited importation:
1. Piratical copies of any work copyrighted in the United States. By the term "piratical" is meant the printing, reprinting, publishing, copying, or reproducing without authority of the copyright proprietor of any article legally copyrighted and on which the copyright is still in force.
2. Articles bearing a false notice of copyright when there is no existing copyright thereon in the United States.
3. Authorized foreign reprints of books by an American author copyrighted in the United States.
4. Authorized copies of any book copyrighted in the United States not produced in accordance with the manufacturing provisions of section 15 of the copyright act, except such as are exempted in the said section 15 and section 31 of the act.
All books on which there is an existing copyright in the United States are prohibited importation unless produced in accordance with the manufacturing provision of section 15, whether copyrighted under this act or previous acts. (Opinion of the Attorney General, T. D. 30136, Nov. 24, 1909.)
Copyrighted books produced in accordance with the manufacturing provisions of section 16 of the copyright act, when exported and rebound abroad may be admitted to entry on their return to the United States. (Opinion of the Attorney-General, T. D. 30414.)
As copyrighted books are required to be printed and bound in the United States, evidence should be required on entry that such books were exported in a bound condition and not as loose sheets, and that the printing and binding were both performed within the limits of the United States.
Imported articles found to bear a false notice of copyright will be detained and forfeiture proceedings instituted as provided in Schedule 32.
If satisfactory evidence is not produced to the collector that such imported books were produced in accordance with the manufacturing provisions of section 15, or are exempt therefrom, the books will be seized and forfeiture proceedings instituted as provided in section 32.
Forfeiture proceedings instituted under the copyright act will be conducted in the same manner as in case of merchandise seized for violation of the customs laws, section 32, supra. (Arts. 1266 to 1269, Customs Regulations, 1908.)
Authorized editions of copyright books imported through the mails or otherwise in violation of the copyright act may, under customs supervision, be returned to the country of exportation whenever it is shown in a written application to the satisfaction of the Secretary of the Treasury that such importation was not due to willful negligence or fraud. (Sec. 32, supra.)
In any case in which a customs officer is in doubt as to whether an article is prohibited importation under the copyright act the articles should be detained and the facts reported to the department for instruction.
FRANKLIN MACVEAGH, Secretary.
JOINT REGULATIONS
Governing treatment of letters and packages received in the mails from foreign countries containing or supposed to contain articles prohibited importation by the copyright act of March 4, 1909.
The "Joint regulations governing the treatment of dutiable and supposed dutiable articles received in the mails from foreign countries" are also applicable in the treatment of articles which contain or which are supposed to contain matter prohibited importation by the copyright act, except as hereinafter modified;
Unsealed correspondence and packages (registered and unregistered) of all kinds which upon examination prove to contain articles prohibited importation by the copyright act shall be retained by customs officers, who will notify the addressee of the facts of the case. If an application is not made within a reasonable time to the Secretary of the Treasury for permission to return such articles to the country of export, the customs officers shall take appropriate steps to forfeit the articles as provided in section 32 of the copyright act.
Sealed articles supposed to contain matter prohibited importation by the copyright act must be appropriately marked to indicate that fact at the exchange office of receipt. The same conditions shall apply in regard to the marking, opening, and disposition of such sealed articles by the addressee or authorized agent as are required in the case of the opening and treatment of sealed "Supposed liable to customs duty" pieces. If the customs officer finds an article contains matter prohibited importation by the copyright act, he shall notify the addressee of the facts through the postmaster at the office of delivery. If an application is not then made within a reasonable time to the Secretary of the Treasury for permission to return the article to the country of export, the customs officer shall take appropriate steps to forfeit the matter as provided in section 32 of the copyright act.
Receipt should be taken for articles submitted to customs officials as prohibited importation under the copyright law and proper record made on the Post Office records of the disposition of such articles as are not returned to be disposed of through the mails.
Notice of actual or contemplated illegal importations through the mails should be given to the Secretary of the Treasury or the Postmaster General. On receipt of such notices either by the Secretary of the Treasury or the Postmaster General instructions will be promptly issued.
FRANKLIN MACVEAGH, Secretary of the Treasury. FRANK H. HITCHCOCK, Postmaster General.
II
BRITISH EMPIRE: COPYRIGHT PROVISIONS
6. BRITISH COPYRIGHT ACT, 1911
AN ACT TO AMEND AND CONSOLIDATE THE LAW RELATING TO COPYRIGHT [16th December 1911.]
(2 GEORGE V, CHAPTER 46)
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--