Copyright: Its History and Its Law
Part I, Group 2, issued monthly with more condensed entries,--containing
the titles for all other material registered under the legal designation "book," not found in Group 1,_ i. e._, local directories and other annuals, pamphlets, leaflets and literary contributions to periodicals, as also dramatic compositions, lectures and maps, including also the preliminary reports of court decisions,--may be subscribed for at a price of $1 per year. Part II, appearing monthly, covers periodicals, with an annual index, at fifty cents per year. Part III, appearing monthly, covers music, with an annual index, at $1 per year. Part IV, appearing monthly, covers works of art, reproductions of a work of art, drawings or plastic works of a scientific character, photographs and prints and pictorial illustrations, with an annual index, at fifty cents per year. The subscription price for the entire catalogue is $3 per year. Subscriptions should be sent direct to the Superintendent of Documents, Washington, D. C., with money orders or drafts in his name (stamps and uncertified checks not accepted), and should not be sent to the Librarian of Congress or to the Copyright Office.
{Sidenote: Entry cards}
The Library of Congress prints for all such books as are selected from the copyright deposits for use in the Library, on the decision of the Commission appointed by the Librarian, a catalogue card which forms part of the library card catalogue system, and which can be had by public libraries and by private purchasers at the price of two cents a card. This card is used for the catalogues of the Library of Congress and for the catalogues of depository libraries throughout the country, but is not furnished in exchange by the Smithsonian Institution to foreign institutions. The catalogue cards for "books" in Group 2, representing considerably more than twice as many registrations as Group I, as well as the index cards for all articles comprised in the remaining classes of copyright deposits, are prepared in the Copyright Office, and are not furnished to other libraries or to the public.
{Sidenote: Text provisions}
The provisions as to the Copyright Office, its administration, methods and practice, are set forth in the American code of 1909 in much detail, as follows:
{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}
"(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: Deposit and 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}
"(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}
"(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}
"(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}
"(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}
"(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}
{Sidenote: Receipt for deposits}
"(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: Catalogue and index provision}
"(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 and 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: Records open to inspection and copying}
"(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