Part 31

_Sweden and Denmark_ provide for a term of the author's lifetime and 50 years after.

_Switzerland._--Author's life and 30 years after.

_Turkey._--Author's life, or 40 years, whichever is the longer.

American law.

17. _United States._--American copyright is provided for by an act of March 1909, which replaced acts of July 1870 and March 1891, both of which had introduced important modifications in the original act of 1790. Under all acts preceding that of 1891, copyright had been granted to "citizens or residents of the United States," the term "resident" having been, in decisions prior to 1891, construed to mean a person domiciled in the United States with the intention of making there his permanent abode. The works of foreigners could thus be reproduced without authorization, and they were so reproduced in so far as there was prospect of financial gain. The leading publishers, however, had from the earliest times made terms with British authors, or with their representatives, the British publishers, for producing authorized American editions. But at most they were only able to secure by this means an advantage of a few weeks' priority over the unauthorized editions, and the good-will of the conscientious buyer; so that if they paid the author any considerable sum, the price of the authorized editions had to be made so high that it was not easy to secure a remunerative sale. The unauthorized editions had the further advantage in competition, that for the purpose of being manufactured more promptly and more economically, they could be and often were issued in an abbreviated and garbled form, an injury which to not a few writers seemed more grievous than the lack of pecuniary profit. In Great Britain, during the first half of the 19th century, the copyright law had been so interpreted as to secure recognition of the rights of American authors for such works as were produced there not later than in any other country, so that authors like Washington Irving and Fenimore Cooper secured for a time satisfactory returns; but after 1850 the conditions became the same as in the United States. Unauthorized editions were published, and were often incomplete and garbled.

As from decade to decade the books produced on either side of the Atlantic, which possessed interest for readers of the other side, increased in quantity and in importance, the evil of these unrestricted piracies increased. The injury to British authors was greater only in proportion as the English books were more numerous. The pressure from Great Britain during the last half of the 19th century for international copyright was continuous; and in America it was recognized by authors, by representative publishers, and by the more intelligent people everywhere, that the existing conditions were of material disadvantage. The loss to American authors was direct; and the loss to legitimate American publishers was also clear, in that better returns could be secured by adequate payments for rights that could be protected by law than by "courtesy" payments for authorizations that carried no legal rights. An injury was being done to American literature; for, when authorized editions of American works had to compete against unauthorized and more cheaply produced editions of English works, the business incentive for literary production was seriously lessened. In fiction particularly, authors had to contend against a flood of cheaply produced editions of "appropriated" English books. Equally to be condemned were the ethics of a relation under which one class of property could be appropriated while other classes secured legal protection. On these several grounds efforts had long been made to secure international copyright. Between 1843 and 1886 no less than eleven international copyright bills were drafted, for the most part at the instance of the copyright associations or copyright leagues. They were one after the other killed in committee. In 1886 the twelfth international copyright bill was brought before the Senate by Senator Jonathan Chace of Rhode Island, and was referred to the committee on patents. In 1887 the American Publishers' Copyright League (succeeding the earlier American Publishers' Association) was organized, with William H. Appleton as president and G. H. Putnam as secretary. The executive committee of this league formed, with a similar committee of the Author's Copyright League, a conference committee, under the direction of which the campaign for copyright was continued until the passage of the act of March 1891. Of the Authors' Copyright League James Russell Lowell was the first president, being succeeded by Edmund Clarence Stedman. The secretary during the active work of the league was Robert U. Johnson. Under the initiative of the conference committee copyright leagues were organized in Boston, Chicago, St Louis, Cincinnati, Minneapolis, Denver, Colorado City and other places. The Chace Bill was introduced in the House in March 1888. In May 1890 this bill, with certain modifications, came before the House, and was there defeated. In March 1891 the same measure, with certain further modifications, secured a favourable vote in the House during the last hour of the last day of the session, was passed by the Senate, and was promptly signed by President Harrison. Thus, after a struggle extending over fifty-three years, the United States accepted the principle at all events of international copyright.

Provisions of Act of 1909.

18. The act of 1891 was criticized in several respects: (1) A condition was that books or works of art must be "manufactured" in America; consideration not being given to books originally produced in some language other than English. (2) It required publication in the United States simultaneously with that in the country of origin. (3) The term of copyright (28 years, with an extension of 14 years to the author if alive, or to widow or children) was shorter than that accorded under the law of any other literature-producing country, excepting Greece. Minor amending acts were passed in 1893, 1895 and 1897, that of Feb. 19, 1897, establishing as the copyright department of the library of Congress a Bureau of Copyrights, the head of which bears the title of Register of Copyrights. Eventually, after hard work by the American Authors' Copyright League and the Publishers' Copyright League, and after sittings extending to a period of three years, a new bill submitted to Congress by the two Committees on Patents of the House of Representatives and the Senate was successfully passed. It came into force on the 1st of July 1909. Its provisions may be briefly summarized as follows:--

Term of copyright.

Definition of copyright.

"Manufacture" clause.

Exemption of text of foreign book.

Copyright is granted to authors for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name. A further term of twenty-eight years is granted to the author if at the expiration of the first term he be still living, or to his widow and children if he be dead. If the author's widow and children be dead an extension is granted to the author's executors, or in the absence of a will, to his next of kin. Applications for renewal and extension must be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term. To any work in which copyright subsists at the time the act went into force the act extends renewal for a period of twenty-eight years at the expiration of the time provided for under the previously existing law (first period 28 years, renewal period 14 years). The works for which copyright may be secured under the act "Shall include all the writings of an author." For purposes of registration the act classifies (1) books, including composite and cyclopaedic works, directories, gazetteers and other compilations; (2) periodicals, including newspapers; (3) lectures, sermons, addresses, prepared for oral delivery; (4) dramatic or dramatico-musical compositions; (5) musical compositions; (6) maps; (7) works of art; models or designs for works of art; (8) reproductions of a work of art; (9) drawings or plastic works of a scientific or technical character; (10) photographs and (11) prints and pictorial illustrations. But compilations or abridgments, adaptations, arrangements, dramatizations, translations or other versions of copyrighted works, when produced with the consent of the proprietors of the copyrighted work are, under the 1909 act, new works subject to copyright. A citizen or subject of a foreign state can secure copyright only when he is domiciled within the United States at the time of the first publication of his work, or when the foreign state or nation of which he is a subject grants, either by treaty, convention, agreement or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection equal to that secured by the foreign author under the United States act, or when the foreign state is a party to an international agreement providing for reciprocity in the granting of copyright, and the United States may, by the terms of that agreement, become a party thereto. After copyright has been secured by publication of a work, two complete copies of the best edition published must be "promptly" deposited in the copyright office, or mailed to the register of copyrights, the postmaster, on request, giving a receipt and mailing the books without cost. If the work be a contribution to a periodical, one copy of the issue containing it must be sent, or if it be a work not reproduced in copies for sale, a copy, print, photograph or other identifying reproduction must accompany the claim. Prior to 1891 the works of authors could be put into print on either side of the Atlantic. The act of 1891 laid down that, in order to secure copyright, all editions of the works of all authors, resident or non-resident, must be entirely manufactured within the United States, the term "manufactured" including the setting of type as well as printing and binding. This manufacturing condition was insisted on by the typographical unions. There is no logical connexion, however, between the right of an author or artist to the control of his production and the interests of American workmen; the attempt to legislate for them jointly must bring about no little confusion and inequity. If American working-men cannot secure a living in competition with labourers on the other side of the Atlantic, their needs should be cared for under the provisions of the protective tariff. It is, however, the belief of a large number of those who are engaged in the manufacturing of books that, with his advanced methods of work, the skilled American labourer has no reason to dread the competition of European craftsmen. With this manufacturing condition out of the way, there would be nothing to prevent the United States from becoming a party to the Bern Convention. This would place intellectual property on both sides of the Atlantic on the same footing. The power of the unions was sufficiently strong to prevent this condition being eliminated from the act of 1909, but the just claims were met of authors whose books are originally produced in some language other than English, the "original text of a book of foreign origin in a language or languages other than English" being exempted from the requirements as to type-setting in the United States. On the other hand the manufacturing condition is extended by the act of 1909 to illustrations within a book, and also to separate lithographs or photo-engravings, "except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." The notice of copyrights required by the act consists either of the word "copyright" or by the abbreviation "Copr.," accompanied by the name of the copyright proprietor, and in the case of printed literary, musical or dramatic works, the notice must include also the year in which the copyright was secured by publication. In the case of works specified in 6 to 11 inclusive, of the classification given above, the copyright notice may consist of the letter C enclosed within a circle, thus: ©, accompanied by the initials, monogram, mark or symbol of the copyright proprietor, provided that on some accessible portion of the copy or of the margin, or on the back or pedestal his name appears.

Interim protection.

Infringement.

Musical compositions.

Transfer and assignment of copyright.

Importation of copyright works.

The act of 1909 gives an _interim_ protection to a book published abroad in the English language before publication in the United States, the deposit in the copyright office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and copyright proprietor, securing copyright for thirty days from the date of deposit. Any person infringing a copyright work is liable to an injunction, and to pay such damages as the copyright proprietor may have suffered by the infringement; in lieu of actual damages and profits the courts may award such damages as appear to be just, and in assessing them may, at its discretion, allow the amounts mentioned below, except that in the case of a newspaper reproduction of a copyrighted photograph such damages must not exceed the sum of two hundred and fifty dollars nor be less than fifty dollars, and in no other case must the damages be more than five thousand dollars or less than two hundred and fifty dollars: (1) In the case of a painting, statue or sculpture, ten dollars for any infringing copy made or sold or found in the possession of the infringer or his agents or employees; (2) in the case of any work enumerated in the classification given before, except a painting, statue or sculpture, one dollar for every infringing copy; (3) in the case of a lecture, sermon or address, fifty dollars for every infringing delivery; (4) in the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance; all infringing copies and devices must also be delivered up for destruction. The act gives full control over his compositions to a musical composer, and the right to make any arrangement or setting of it, or of the melody of it, in any system of notation or form of record from which it may be read or reproduced. His right to control the reproduction of his music by mechanical instruments is restricted (1) to cover only music published and copyrighted after the act went into effect; (2) to include a musical composition by a foreign composer only in the case of a citizen of a foreign state that grants to citizens of the United States similar rights; (3) where the owner of a musical copyright has permitted the use of his work upon parts of instruments serving to reproduce the composition mechanically, permission for a similar use of such work must be accorded to any other person on the payment of a fixed royalty of two cents on each part manufactured. The act makes a clear distinction between the property in the copyright and that in the material object representing the copyright, and enacts that the sale or conveyance of the material object shall not of itself constitute a transfer of the copyright. Transfer of copyright in the United States is to be effected by an instrument in writing signed by the proprietor of the copyright, or the copyright may be bequeathed by will. Assignment of copyright executed in a foreign country must be acknowledged by the assignor before a consular officer of the United States. Every assignment of copyright must be recorded in the copyright office within three calendar months after its execution in the United States or within six months without the limits of the United States. The importation into the United States is forbidden of any piratical copies of a copyrighted book or of any copies not produced in accordance with the manufacturing provisions of the act (although authorized by the author or proprietor), but importation is allowed to any society or institution incorporated for educational, literary, philosophical, scientific or religious purposes, or for the encouragement of the fine arts, or to any State school, college, &c., or to free public libraries, when importation is for use and not for sale. The act of 1891 allowed "_two_ copies in any one invoice" to be imported, but by the act of 1909 not more than _one_ copy is to be imported in one invoice.

The provisions having to do with international copyright become operative in the case of a foreign state only when the president proclaims that the state has fulfilled the condition of reciprocity. The act of 1891 was put into force with foreign states as follows:--1st of July 1891, Great Britain, Belgium, France, Switzerland; 8th of March 1892, Germany (by separate treaty); 31st of October 1892, Italy; 8th of May 1893, Denmark; 15th of July 1895, Spain; 20th of July 1895, Portugal; 27th of February 1896, Mexico; 13th of April 1896, Sweden and Norway; 25th of May 1896, Chile; 19th of October 1899, Costa Rica; 20th of November 1899, the kingdom of the Netherlands. In the case of each state the territory covered by the provisions of the law included the possessions, dependencies, &c. The copyright agreement with Great Britain therefore covered the crown colonies of the empire, including India and the self-governing dominions and states, such as Canada, Australia, &c. An American work duly entered for copyright in Great Britain secures, as a British publication secures, the protection of copyright under the provisions of the Bern convention throughout the territory of the several states that are parties to that convention.

ARTISTIC COPYRIGHT

19. Literary authors had protection for their literary work much earlier than artists for their artistic productions. Pictures and illustrations, when included in books or newspapers, are protected by the law which applies to the latter, but that is a separate question. It was not until the reign of George II. that the legislature in England afforded any protection for the work of artists. The English law on artistic copyright is alone considered in this account, the American having been included in the section _United States_ above (18), while for other countries the details are so various that it is only possible to refer the reader to the leading text-books.

Engravings.

The first Artists' Copyright Bill was passed in the interest of William Hogarth, one of the greatest of English painters, who was engraver as well as painter, and who devoted a considerable portion of his time to engraving his own works. No sooner, however, were these published than his market was seriously damaged by the issue of inferior copies of his engravings by other publishers. To protect Hogarth from such piracy the Engraving Copyright Act 1734 was passed, which provided that "every person who should invent and design, engrave, etch, or work in mezzotinto or chiaroscuro, any historical or other print or prints, should have the sole right and liberty of printing and representing the same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints." The penalty for piracy was the forfeiture of the plate and all prints, with a fine of 5s. for every pirated print.

In 1766, in the reign of George III., a second Engraving Copyright Act was passed "to amend and render more effectual" the first act, and "for vesting and securing to Jane Hogarth, widow, the property in certain prints," which extended the protection beyond the designer, who was also engraver, to any person who, not being himself a designer, made, or caused to be made, an engraving from any picture or other work of art. Jane Hogarth, the widow of the painter, found herself nearing the termination of the fourteen years' term of copyright grant by the first act, with the probability that immediately on its expiry the engravings of her husband then on sale, and on which her livelihood depended, would be immediately pirated. It was mainly to save her from the loss of her livelihood that this second Copyright Bill extended the term of the copyright to twenty-eight years.

The engravers and publishers of the day were not over-scrupulous, and they sought to evade the penalties of the copyright acts by taking the designs, and adding to them or taking from them, or both, and producing fresh engravings, seeking to make it appear that they were producing new works. These practices assumed such proportions that it became necessary, in 1777, to call upon parliament to put through another short measure still further to protect the engraver, by prohibiting the copying "in whole or in part" (a clause not contained in the previous acts), by varying, adding to, or diminishing from, the main design of an engraving without the express consent of the proprietor or proprietors. These three acts remain in force to the present day. In 1852, in an international copyright act, it was declared that the Engraving Copyright Acts collectively were intended to include prints taken by lithography or any other mechanical process.

Sculpture.

20. In May 1814 the Sculpture Copyright Act was passed to give protection to sculptors. The term of copyright for sculptors was a peculiar one. It was to last for fourteen years, with the proviso that, should the author be still alive, he should enjoy a further period of fourteen years, the copyright returning to him for the second fourteen should he have disposed of it for the first period. It is a condition of copyright with the sculptor that the author must put his name with the date upon every work before putting it forth or publishing it. A curious and interesting point in the interpretation of this act is, that according to the opinion of eminent jurists it is necessary to an infringement of the copyright of a piece of sculpture that the copy of it must take the form of another piece of sculpture; that a photograph, drawing, or engraving of a piece of sculpture is not to be considered a reproduction of it, and is therefore not an infringement of the sculptor's copyright.

Painting.