Part 6

Besides the time limit, copyright--especially as far as the authors of the United States are concerned--is limited territorially, not extending beyond the boundaries of the United States. Whether the protection which follows registration and deposit shall extend so as to include Porto Rico, Hawaii and the Philippines is a matter of some question. Probably as regards the Philippines the answer would be in the negative, but as concerns Porto Rico, since the passage of the "Act temporarily to provide revenue and a civil government for Porto Rico" (April 12, 1900) and Hawaii, since the taking effect (June 14, 1900) of the "Act to provide a government for the territory of Hawaii," the response would be in the affirmative.

The obtaining of copyright protection by a compliance with the United States statutory requirements as to registration of title, deposit of copies, and printing of notice of copyright, does not secure extension of this protection in the territory of any foreign country, the United States not being a member of the International Copyright Union. An American author must comply with the requirements of the copyright laws of a foreign country, just as if he were a citizen or subject of that country, in order to obtain copyright protection within its borders. Presumably, however, the obtaining of valid copyright protection in one of the countries of the International Copyright Union, England for example, would secure protection throughout the various countries of that Union.

4. _Who may obtain copyright._

It is the _author_ of the work who is privileged to obtain copyright protection for it. As I have already pointed out, the constitutional provision enacts that Congress is to legislate to secure to _authors_ the exclusive right to their _writings_. When, therefore, the law states that the author "or proprietor" of any book may obtain a copyright for it, the term "proprietor" must be construed to mean the author's assignee, _i.e._, the person to whom he has legally transferred his copyright privilege. It is not necessarily transferred by the sale of the book, _i.e._, the manuscript of the author's work, as the purchase alone of an author's manuscript does not secure to the proprietor of the manuscript copyright privileges. Prior to July 1, 1891, no foreign author could obtain copyright protection in the United States, hence the purchase by a publisher of one of Dickens's novels in manuscript, for example, would not enable the buyer to obtain copyright on the book in this country. No author who has not the privilege of copyright in the United States can transfer to another either a copyright or the right to obtain one. He cannot sell what he does not himself possess. Under the United States law copyright comes through _authorship_ only. It is not a right attaching to the thing--the book--but is a right vested in the creator of the literary production, hence does not pass to a second person by the transference of the material thing, the book, and evidence must be offered showing that the transference of the book carried with it the author's consent to a conveyance of the privilege of copyright.

This same principle is embodied in the provisions of the law as to renewal of the copyright. The second term of protection must also start with the author, or if he be dead, with his natural heirs, his widow or children, but not with his assigns, the "proprietors." The right to the extension term is in the author if he be living at the period during which registration for the second term may take place, _viz._, within six months prior to the expiration of the first term of twenty-eight years. If the author be dead, the privilege of renewal rests with his widow or children. Whether the author may dispose of his right of renewal so that the transference may be effective for the second term, even though the author should have died before the date of the beginning of that term, is a question upon which the authorities differ. The language of the statute would seem to give to the author an inchoate right which reverts to his widow or children should he be married and die before the expiration of the first term of the copyright.

5. _International copyright._

The idea of nationality or citizenship governed our copyright legislation for more than a century, from the earliest American copyright statute of 1783 to July 1, 1891, so that until the latter date copyright protection in the United States was limited to the works of authors who were citizens or residents. By the Act of March 3, 1891, commonly called the international-copyright law, which went into effect on July 1 of that year, the privileges of copyright in this country were extended to the productions of authors who were citizens or subjects of other countries which by their laws permitted American citizens to obtain copyright upon substantially the same basis as their own subjects. The existence of these conditions is made known by presidential proclamation, and up to this time ten such proclamations have been issued extending copyright in the United States to the citizen authors of Belgium, Chile, Costa Rica, Denmark, France, Germany, Great Britain and her possessions (including India, Canada, the Australias, etc.), Italy, Mexico, the Netherlands, Portugal, Spain and Switzerland. The privilege of copyright in the United States is extended only to authors who are subjects of some country in whose behalf a presidential proclamation as to copyright has been issued.

It is well to point out, perhaps, that these copyright proclamations are not equivalent to copyright treaties, but are only notices that certain conditions exist. Only in the case of one country, _viz._, Germany, has anything been entered into approaching a convention or treaty. Under date of Jan. 15, 1892, an "agreement" was signed with that country to issue a proclamation extending copyright in the United States to German subjects upon an assurance that "Citizens of the United States of America shall enjoy, in the German Empire, the protection of copyright as regards works of literature and art, as well as photographs, against illegal reproduction, on the same basis on which such protection is granted to subjects of the empire."

In order to obtain copyright abroad, therefore, an American citizen must ascertain the requirements of the law of each country in which he desires to protect his book or other production and comply explicitly with such requirements. He can, of course, only avail himself of the legal protection accorded, so far as it is within his power to thus comply, and therein lies the difference between the privileges secured under the present international-copyright arrangements, and such as would be obtainable under copyright conventions or treaties. A citizen of the United States may find himself unable to meet the obligations or conditions of the statutes, just as a foreign author may find it practically impossible to comply with the requirements of the United States law, and in either case there would be a failure to secure the protection desired. In the case of a photograph, for example, the English law requires that the "author" of the photograph must be a British subject or actually "resident within the Dominions of the Crown," and the United States law requires that the two copies of the photograph to be deposited in the Copyright Office "shall be printed from _negatives made within the limits_ of the United States," two sets of conditions difficult of fulfilment. By means of a copyright convention exemption could be obtained in either case from these onerous conditions.

6. _Conditions and formalities required by the copyright law._

Two steps are made prerequisites to valid copyright by the laws now in force in the United States. The first of these is the recording of the title in the Copyright Office. For this purpose the statute requires the deposit of "a _printed_ copy" of the title-page, "on or before the day of publication in this or any foreign country." For a number of years it has been the practice of the Copyright Office to accept a typewritten title in lieu of the _printed_ title-page, but in this, as with all other requirements of the law regarding copyright, the preferable course is a strict compliance with the letter as well as the spirit of the law.

The clerical service for thus recording the title requires the payment of a fee, which should accompany the title-page when transmitted to the Copyright Office. The fee for this, as fixed by law, is 50 cents in the case of the title of a book whose author is a citizen of the United States, and $1 in the case of a book whose author is not an American but is a citizen or subject of some country to whose citizens the privilege of copyright in the United States has been extended, under the provisions of the Act of March 3, 1891. If a copy of the record thus made of the title (commonly called a certificate) is desired, an additional fee of 50 cents is required in all cases.

In order to have this essential record of title properly made, in the form exactly prescribed by the statute, it is necessary to furnish the Copyright Office with certain information, namely:

_a._ The name of the claimant of the copyright. (This should be the real name of the person, not a _nom de plume_ or pseudonym.) _b._ Whether copyright is claimed by applicant as the "author" or the "proprietor" of the book. _c._ The nationality or citizenship of the _author_ of the book. (This is required to determine whether the book is by an author who is privileged to copyright protection in this country, and, also, the amount of the fee to be charged for recording the title.) _d._ The application should state that the title-page is the title of a "book." _e._ A statement should be made that the book is or will be "printed from type set within the limits of the United States."

The second prerequisite to copyright protection is the deposit in the Copyright Office of two copies of the book whose title-page has been recorded. These copies must be printed from "type set within the limits of the United States," and the deposit must be made "not later than the day of publication thereof, in this or any foreign country." The stipulation as to American typesetting applies to works by American authors as well as to those written by foreign authors.

The statute provides, as regards both the printed title and the printed copies, that the articles are to be delivered at the office of the Librarian of Congress, or "deposited in the mail, within the United States, addressed to the Librarian of Congress, at Washington, D. C." Just what would be held to have been secured under the latter provision in case the deposit in the mail were made and the book failed to reach the Copyright Office has not been determined by judicial decision. The law provides for the giving of a receipt by the postmaster in the case of the title and the copies, if such receipt is requested.

The third step required for obtaining a defendable copyright is to print upon the title-page or the page immediately following it in each copy of the book the statutory notice of copyright. The form of this notice must be either "Entered according to Act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress, at Washington;" or, "Copyright, 19----, by A. B." The name printed in this notice must be the real, legal name of the proprietor of the copyright, and must be the same as that in which the entry of title has been made; the date, also, must be the year date of the record of the filing of the title-page. A judicial decision is on record to the effect that printing the year date in this notice one year later than the date of actual recording of title barred the defence of the copyright. A penalty of $100 is imposed on "every person who shall insert or impress such notice, _or words of the same purport_ in or upon any book ... whether subject to copyright or otherwise, for which he has not obtained a copyright."

An American author may obtain for his book copyright protection in Great Britain, by a compliance with the official instructions as to publication, deposit of copies and registration. The protection, under English law, dates from the day of _first_ publication, but such first publication must be on English territory, and registration may follow, but cannot precede publication. The term of protection in the United States, on the contrary, dates from the day of registration of title in our Copyright Office, which must precede publication, and be followed by deposit of copies made "not later than the day of publication thereof in this or any foreign country." The point to guard, therefore, is _simultaneous publication_ in this country and in Great Britain. Registration in England is a secondary matter. As stated in the official circulars of instructions issued by the English Copyright Office, "Copyright is created by the statute, and does not depend upon registration, which is permissive only, and not compulsory, but no proprietor of copyright in any book can take any proceedings in respect of any infringement of his copyright unless he has, before commencing his proceedings, registered his book."

Under existing legal conditions, in order to secure valid copyright on a book in this country and in England, the following steps should be taken, and in the order stated. 1. Record title in the United States Copyright Office. 2. Print book from type set within the limits of the United States. 3. Deposit two copies of such book in the United States Copyright Office. 4. Send sufficient copies to London to

_a._ Place copies on sale and take such usual steps as are understood, under English law, to constitute "publication" on a prearranged day, on which same day the book is published in the United States.

_b._ Deposit copies: one copy of the best edition at the British Museum, and four copies of the usual edition at Stationers' Hall for distribution to the Bodleian Library at Oxford, the University Library at Cambridge, the Faculty of Advocates Library at Edinburgh, and the Trinity College Library at Dublin.

_c._ Register title of book and day of first publication at Stationers' Hall, London.

7. _The United States Copyright Office._

One frequently hears the expressions "has obtained a copyright," "issued a copyright," etc., giving the impression that copyrights can be granted somewhat after the manner in which the Patent Office issues letters-patent. But Congress has established no office authorized to furnish any such guarantee of _literary_ property as is done in the case of patent monopoly. The Copyright Office is purely an office of record and simply registers _claims_ to copyright. The form of record prescribed by law being the effect that A. B. "hath deposited the title of a book the right whereof he _claims_ as author or proprietor in conformity with the laws of the United States respecting copyrights." The Copyright Office has no authority to question any claim as to authorship or proprietorship, nor can it determine between conflicting claims. It registers the claim presented in the prescribed form for a proper subject of copyright by any person legally entitled to such registration without investigation as to the truthfulness of the representations, and would be obliged to record, not only the same title for different books, but the same title for the same work on behalf of two or more different persons, even against the protest of either one, were such registrations asked for. No examination is therefore made when a title reaches the office as to whether the same or a similar title has been used before. As I have already stated, the title _per se_ is not subject to copyright, and no one can secure a monopoly of the use of a title by merely having it recorded at a nominal fee at the Copyright Office.

If any one, wishing to use a given form of title but desiring to avoid possible duplication of one previously used, writes to the Copyright Office asking whether such a title has already been recorded, an answer is made stating what is disclosed by the indexes of the office. It must be frankly explained, however, that an absolutely conclusive statement as to whether a given title has been previously used cannot always be given. The copyright records of entries of title previous to July 10, 1870, are but indifferently indexed and rarely by title, usually only under names of proprietors of the copyright. The copyright entries since July 10, 1870, to May 31, 1901, number 1,217,075. The index to these entries consists of more than 600,000 cards, many of which contain a number of entries. These cards index the entries primarily under the names of the proprietors of the copyright, and this proprietor's index is understood to have been kept up continuously and to be complete, so that under the name of each copyright proprietor there is a card or cards showing the titles of all articles upon which copyright is claimed. In addition to the proprietor's index there are cards under the titles of periodicals and under the leading catchwords of the titles of other articles, besides cards under the authors' names for books. Unhappily there are periods of time when what may be called the subsidiary index cards were not kept up.

In addition to cards under the proprietors' names, cards are now made: for _books_, under the names of their authors; for _anonymous books_, _periodicals_ and _dramatic compositions_, under the first words of the titles (not a, an, or the), and for _maps_, under the leading subject words of the titles, _i.e._, the names of the localities mapped. It is doubtful if an absolutely complete index of all copyright entries by the _title_ of the book and other article--in addition to the cards at present made--could be justified by even a possibly legitimate use of such an index. When it is remembered that the copyright entries last year numbered 97,967, the magnitude of the task of making several cards for each entry is easily conceived, and it is a question whether it could be rightfully imposed upon the Copyright Office under the present provisions of the law and so long as the registration of a title does not secure the use of that title to some one person to the exclusion of all others.

8. _Amendment of the copyright law._

The possible amendment of the copyright laws is a subject which my time does not permit me to consider in detail, even were that deemed desirable. The law now in force consists of the Act of July 8, 1870, as edited to become title 60, chapter 3 of the Revised Statutes, and ten amendatory acts passed subsequently. Naturally there is lacking the consistency and homogeneousness of a single well-considered copyright statute. It is possible that Congress will presently be willing to take under consideration, if not the re-codification of the copyright laws, then, at least, some amendment of them. An increase in the period of protection has frequently been urged, with some advocacy of perpetual copyright. As the Federal constitution, however, distinctly provides that the protection granted the writings of an author is to be for a _limited time_, an amendment of the constitution would be necessary before Congress could enact perpetual copyright, and such alteration of the fundamental law of the land is not probable.

Much might be said for an increase in the period of protection. It is for a shorter term of years than that provided by most modern copyright legislation, and the trend of such lawmaking has been in the direction of an increase in the length of time during which the author or his heirs could control the reproduction of his work. It should be borne in mind that for books of little value the length of the term of protection is of no great consequence. "Dead" books are not affected by the length of the term of copyright. In the case also of popular new books, the great sales and consequent disproportionate remuneration comes within a short period of time after publication, and are not likely to continue during a long term of copyright. On the other hand, many books of great and permanent value not unfrequently make their way slowly into popular favor, and are not fully appreciated until many years after publication. For such books--the results, perhaps, of long years of study and labor--an equitable return cannot be secured except by a long term of protection.

Perhaps the most urgently desirable forward step in respect to copyright is the adhesion of the United States to the Berne convention, thus securing the inclusion in the International Copyright Union of our country, the leading one of the three great states not yet members of this admirable association of nations. Were the United States a member of the Berne Union a compliance with the statutory provisions of our own laws alone would secure copyright protection not only within the limits of the United States, but practically throughout the whole book-reading world--Great Britain, all Europe (except temporarily Russia, Austria, and Scandinavia), Canada and Australia, India, Japan and South Africa--thus increasing the possible reading public of American authors many fold. It would seem that considerations of justice to our large and constantly increasing national contingent of literary and artistic producers requires this advance of such great practical importance. It is the easier of accomplishment because it involves the adoption of no new principle, but only the extension of the principle embodied in the Act of March 3, 1891, namely, reciprocal international exchange of copyright privileges, and in return for the advantages which would accrue to our own citizens, only obligates the extension of copyright in the United States to the subjects of such countries as are members of the Union. Of the members of the International Copyright Union, all the great nations already enjoy copyright in the United States, and it would only remain to extend this privilege to the citizen authors of the six minor states that are members of the Union, namely, Hayti, Japan, Luxembourg, Monaco, Norway and Tunis.

THE RELATIONSHIP OF PUBLISHERS, BOOKSELLERS AND LIBRARIANS.

BY W. MILLARD PALMER, _Grand Rapids, Mich._

In accepting the president's suggestion to give "expression of the _business_ side of the subject rather than the theoretical or sentimental," I wish at the outset to recall certain functions performed by publishers, booksellers and librarians, and to acknowledge my indebtedness to Mr. J. W. Nichols, secretary of the American Booksellers' Association, for material along this line.

Casual observers have come to regard publishers as bookmakers or manufacturers, who merely put the product of authors into merchantable form, and distribute it to dealers, for sale to the reading public. If this were the only function of the publisher, his task would be an easy one; indeed we might soon expect to see all publishers supplanted by one great co-operative factory, to which authors might take their manuscripts, and have them transformed into books and distributed through the ordinary channels of commerce, like any other commodities. Some superficial observers have recently made bold to conjecture that this will be the final outcome of the present troubled state of the general trade of publishing and selling books. But, alas! the actual making of the book--giving to it an appropriate, artistic and really attractive form--is perhaps the least of the publishers' trials, though this, in itself, is a difficult task, requiring an artistic taste, well trained and skilful judgment, and much technical knowledge.